Wisconsin Legislature: 001 - CR 14-044 Rule Text

6. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The implementation of the Safe Drinking Water Loan Program does not include regulatory activities. Refinements to the program were established with both internal and external advisory groups with the intent of streamlining processes and clarifying criteria for program implementation.

7. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: Rule revisions are expected to have minimal impact on small businesses, in that it streamlines existing processes and clarifies implementation criteria. Rule revisions do not contain any new requirements for small businesses.

8. Effect on Small Business (initial regulatory flexibility analysis): Minimal.

9. Agency Contact Person: Robin Schmidt, Bureau of Community Financial Assistance, 101 S. Webster Street., PO Box 7921, Madison WI 53707-7921; robin.schmidt@wisconsin.gov; 608-266-3915.

Section 1 NR 166 is repealed and recreated to read:

SUBCHAPTER 1 - GENERAL

NR 166.01 Purpose. The purposes of this chapter are all of the following:

(1) Establish rules under ss. 281.59 and 281.61, Stats., for the implementation and administration of a financial assistance program to plan, design, construct or modify public water systems.

(2) Establish a priority system for the distribution of safe drinking water loan program financial assistance as provided in s. 281.61, Stats., and the mechanisms and methodology to be used to modify the priority system.

Note: All forms necessary for financial assistance under this chapter may be acquired at no charge from the Department of Natural Resources, Bureau of Community Financial Assistance, 101 S. Webster St., P.O. Box 7921, Madison, Wisconsin 53707–7921. The forms are also available on the Department of Natural Resources website.

NR 166.02 Applicability. This chapter applies to all applicants for and recipients of financial assistance to plan, design, construct or modify public water systems made pursuant to ss. 281.59 and 281.61, Stats. Compliance with the applicable requirements of this chapter is a prerequisite to receiving financial assistance under ss. 281.59 and 281.61, Stats.

NR 166.03 Definitions. In this chapter:

(1) “Action level” or “AL” has the meaning given in s. NR 809.04 (1).”

Note: In s. NR 809.04 (1), “action level” is the concentration of lead or copper in water which determines, in some cases, the treatment requirements that a public water system is required to complete.

(2) “American community survey” or “ACS” means the nationwide survey conducted by the U.S. bureau of the census to collect demographic, social, housing, and economic data and produce 1-year, 3-year, and 5-year estimates based on population thresholds.

(3) “Applicant” means any municipality that applies for financial assistance under ss. 281.59 and 281.61, Stats.

(4) “Approval” means the written approval of the department.

(6) “Block group” means a subdivision of a census tract made up of a cluster of blocks having the same first digit of their four-digit identifying numbers within the tract.

(7) “Breach of contract” means the failure of the financial assistance recipient to comply with any of the following:

(a) The terms and conditions of the financial assistance agreement.

(b) The terms and conditions of the municipal obligation resolution authorizing the issuance and sale of bonds or notes to the safe drinking water loan program.

(8) “Capital improvement” means construction resulting in improvements to real property or depreciable property, or both, or adding to the value or useful life of these assets, including structural improvements such as constructing new wells or elevated storage tanks or modifying existing facilities, or improvements that enhance usefulness or productivity, including replacing an existing pump with a more efficient new pump.

Note: The following are examples of capital improvements: drilling a new well and constructing a well house; upgrading existing equipment or installing new, more efficient process equipment, such as pumps, and chemical feed or other treatment equipment; constructing new buildings or facilities; adding to or constructing major renovations of existing facilities; replacing aged or undersized water mains; constructing a water system crossing of a highway, railroad, or waterbody; constructing a watermain loop to eliminate one or more dead ends in the water system; upgrading or improving an existing storage tank, including recoating the entire exterior or entire interior, or both, of a storage tank; installing security, a supervisory control and data acquisition system, or monitoring equipment as part of a scored project.

(9) “Census block” means the smallest unit for which the U.S. census bureau collects and tabulates population information in the decennial census and income information in the ACS.

(10) “Census designated place” means a statistical area delineated for each decennial census according to U.S. census bureau guidelines for the purpose of presenting census data and ACS data for a concentration of population, housing, and commercial structures that is locally identifiable by name, but is not within an incorporated place.

(11) “Census tract” means a small, relatively permanent statistical subdivision of a county used in the decennial census and the American community survey, delineated for the purpose of presenting data, typically following visible features or governmental boundaries or both, including approximately 4,000 inhabitants, and designed to be a relatively homogeneous unit with respect to population characteristics, economic status, and living conditions.

(12) “Change order” means an action that specifies and justifies a change to a construction contract that alters the time of completion, the contract scope of work, the total price, or a combination of any of these.

(13) “Community water system” means a public water system which serves at least 15 service connections used by year–round residents or regularly serves at least 25 year–round residents. Any water system serving 7 or more homes, 10 or more mobile homes, 10 or more apartment units or 10 or more condominium units shall be considered a community water system unless information is provided by the owners indicating that 25 year–round residents will not be served.

(14) “Construction” means a set of actions taken to make a capital improvement, including any of the following actions:

(a) Building, erecting, extending, or assembling a water system or a new major asset for an existing water system.

(b) Preparing a construction site or sites for work activities. Site preparation includes grading, staking, and digging, and demolition or abandonment of existing structures.

(d) Installing new piping or mechanical, electrical, or electronic equipment or facilities.

(15) “Contaminant” means any physical, chemical, biological, or radiological substance or matter in water.

(15m) “Core scope of work” means the set of activities, items, and work that is specific to and necessary for constructing and putting into operation a scored project.

(16) “Custom tabulation” means a special tabulation of income data from the ACS microdata files that is performed by the U.S. bureau of the census, is not part of the standard ACS data tabulations, and results in generation of a median household income for an area designated by the applicant as the boundaries of a town sanitary district, public inland lake protection and rehabilitation district, or municipal water district, or of the area served by the water system if the water system serves only a portion of the place or minor civil division in which it is located.

(17) “Debt” means a financial liability that is subject to repayment and incurred to fund a project, including liabilities in the form of lines of credit, bond anticipation notes, general obligation bonds, revenue bonds, general obligation promissory notes, certificates of indebtedness, and special assessment bonds.

(18) “Dedicated replacement fund” means a separate fund established by the municipality in which an appropriate balance is maintained, or sufficient deposits are made, or both, for the purpose of making expenditures for major repair or planned replacement of equipment or facilities necessary for the operation of the water system, or for unexpected unbudgeted major costs incurred for operation and maintenance of the water system.

(19) “Department” means the department of natural resources.

(20) “Disadvantaged business enterprise” or “DBE” means a business entity certified as disadvantaged under the U.S. department of transportation unified certification program or other program approved by the U.S. environmental protection agency to certify disadvantaged businesses.

(21) “Distribution system” means all pipes or conduits by which water is delivered to consumers except piping inside buildings served and a service line to a building from a distribution main or pipe.

(22) “DOA” means the department of administration.

(23) “Engineering” includes the following:

(a) Performing preliminary planning to determine the need for or the feasibility of building or modifying a water system.

(b) Performing engineering, architectural, geotechnical, hydrogeological, environmental, archaeological, fiscal, or economic investigations or studies.

(d) Observing, inspecting or supervising any of the activities under pars. (a) to (c) or under sub. (14).

(24) “Financial assistance” includes one or more of the following actions taken by the department and DOA under ss. 281.59 and 281.61, Stats.:

(a) Providing a loan, principal forgiveness, a guarantee, or credit enhancement to a municipality.

(b) Refinancing a municipality’s interim debt obtained for the project.

(25) “Financial assistance agreement” means a written agreement between a municipality, the department and DOA that contains the terms and conditions of the financial assistance provided to the municipality.

(26) “Financial assistance agreement amendment” means a formal, written change to an existing financial assistance agreement, executed by all parties to the original agreement.

(27) “Force account work” means engineering, construction, or other project-specific activities performed by a municipality’s employees, or using equipment owned by the municipality, or both.

(28) “Future growth” means distribution system expansion beyond the existing system and excess capacity built into facilities that exceeds standard engineering practices.

(29) “Interim financing” means a debt of a municipality incurred to temporarily finance a project until permanent financing is obtained from the department under this chapter.

(30) “Interim financing costs” means the net interest, fees, and charges associated with issuing interim financing, including underwriter discounts, attorney fees, financial advisor fees, printing costs, bond rating charges, and trustee fees.

(32) “Maintenance” means activities or procedures that are established, commonplace, or repetitious, and are performed or should be performed frequently or on a schedule to sustain the functional integrity and efficiency of existing facilities and to provide upkeep for prevention of early decline or failure, or are performed as needed in response to minor emergencies, such as watermain repair when a pipe bursts, including the following types of maintenance:

(a) Preventive maintenance, including scheduled service, repair, inspection, adjustment, or replacement of parts, to keep equipment or facilities in satisfactory operating condition, to avoid frequent breakdowns and premature replacements, and to achieve the expected life of constructed assets and installed building equipment, conducted with a frequency of one year or less.

(b) Corrective maintenance, including unscheduled maintenance repairs to correct deficiencies during the year in which they occur.

(c) Mobile equipment maintenance, including all corrective, preventive, emergency, or replacement maintenance work done on mobile equipment assets, except when performed at time of purchase of used equipment to bring the purchased equipment to a fully functional or improved condition, or both.

(d) Recurring maintenance, including preventive maintenance activities that recur on a periodic and scheduled cycle of greater than one year, but less than 10 years.

(e) Component renewal, which is preventive maintenance activities that recur on a periodic and scheduled cycle of greater than 10 years, excepting storage tank recoating.

(f) Emergency maintenance, including unscheduled activities and repairs, such as repairing watermain breaks or mechanical malfunctions in aged or damaged infrastructure, typically initiated within a very short amount of time from when a need is identified, to correct an emergency need to prevent injury, loss of property, or human health impacts, or to quickly return an asset to service, excepting emergency repairs or replacement needed due to damage caused by severe weather, cyber attacks, or other unforeseen serious emergency situations over which the municipality has no control.

(g) Minor equipment replacement that substitutes or exchanges one existing asset, asset component, or item of installed equipment for another having the same specifications and the same capacity to perform the same function, except when performed within the scope of a larger capital improvement.

(h) Demolition that does not meet the cost eligibility criteria established in s. NR 166.07 (1) (g).

(33) “Market interest rate” has the meaning given in s. 281.59 (1) (b), Stats.

Note: Under s. 281.59 (1) (b), Stats., “market interest rate” means the effective interest rate on a fixed-rate revenue obligation issued by the state to fund a loan made under s. 281.59 (1) (b) or, for a variable rate obligation, the effective interest rate that the department of administration determines would have been paid if the variable rate obligation had been sold at a fixed rate.

(34) “Maximum contaminant level” or “MCL” means the maximum permissible level of a contaminant that is delivered to any user of a public water system.

Note: The maximum permissible level and the sampling and analytical requirements vary depending on the specific contaminant. Chapter NR 809 should be consulted for specific information regarding any contaminant.

(35) “MCL exceedance” means the analytical results of sampling for microbiological, inorganic, synthetic organic, volatile organic, disinfection byproducts, or radionuclide contaminants, as determined by methodology outlined in ch. NR 809, exceed the MCL of the contaminant.

(36) “Median household income” has the meaning given in s. 281.58 (1) (cm), Stats.

Note: Under s. 281.58 (1) (cm), Stats., “median household income” means median household income determined by the U.S. bureau of the census as adjusted by the department to reflect changes in household income since the most recent federal census.

(37) “Minor civil division” means the primary governmental divisions of a county, including towns, as designated by the U.S. bureau of the census to collect and publish data.

(38) “Minority business enterprise” or “MBE” means a DBE that is owned or controlled on a daily basis by one or more minority group members.

(39) “Municipality” has the meaning given in s. 281.59 (1) (c), Stats.

Note: Under s. 281.59(1)(c), Stats., “municipality” means any city, town, village, county, county utility district, town sanitary district, public inland lake protection and rehabilitation district, metropolitan sewerage district, joint local water authority created under s. 66.0823, Stats., or federally recognized American Indian tribe or band in this state. To be eligible for financial assistance from the safe drinking water loan program, an entity must be of a type included in the definition of “municipality” under s. 281.59 (1) (c), Stats., However, “municipality” includes some entities that are not eligible to receive safe drinking water loan program financial assistance because they are not eligible under federal regulations. The types of entities that are eligible to receive safe drinking water loan program financial assistance are those included in the definition of “local governmental unit” under s. 281.61 (1) (a), Stats., which reads as follows: ““Local governmental unit” means a city, village, town, county, town sanitary district, public inland lake protection and rehabilitation district, joint local water authority created under s. 66.0823, or municipal water district.” If a municipal water district applies for safe drinking water loan program financial assistance, the recipient of the financial assistance is the incorporated place, rather than the utility itself.

(40) “Non–community water system” means a public water system that is not a community water system.

(41) “Operations” means labor, materials and chemicals used regularly, and work activities performed on a recurring basis throughout the year that are intended to meet routine, daily functional needs. Work activities may include any of the following:

(a) Operational maintenance activities related to continuing normal performance of the functions for which a water system asset or item of equipment is intended, such as lubricating gates and valves and removing organic growth or sediment, or related to keeping building systems such as HVAC, lighting, and electrical utilities working properly.