Wisconsin Legislature: Chapter NR 152 Appendix A

Note to Users: These options differ in the amount of land area covered by this ordinance and may have ramifications for enforcement authority. For counties, the first option is the only option since counties do not have extraterritorial authority. Under s. 59.693 (10), Wis. Stats., if a county ordinance exists at the time of annexation, then the municipal ordinance must be at least as restrictive as the county ordinance.

(3) EXCLUSIONS.

This ordinance is not applicable to activities conducted by a state agency, as defined under s. 227.01 (1), Wis. Stats.

S. 045 SUBDIVISION AND NUMBERING OF THIS ORDINANCE; WORD USAGE

(1) This ordinance is divided into sections designated by boldface numerals and abbreviated “S.”. Sections may be divided into subsections designated by numerals in parentheses and abbreviated “sub.” Subsections may be divided into paragraphs designated by lower case letters in parentheses and abbreviated “(par.).” Paragraphs may be divided into subdivisions designated by numerals followed by a period and abbreviated “ subd.” Subdivisions may be further subdivided into paragraphs designated by lower case letters followed by a period and those paragraphs may lowercase Roman numerals, which are abbreviated in the form “subd. 1. a.” and “subd. 1. a. i.,” respectively. Reference to a “section,” “subsection,” “paragraph,” or “subdivision” includes all divisions of the referenced section, subsection, paragraph, or subdivision.

(2) The singular includes the plural, and the plural includes the singular. The present tense of a verb includes the future when applicable. The future perfect tense includes past and future tenses.

S. 05 DEFINITIONS. In this ordinance:

(1) “ Administering authority” means a governmental employee, or a regional planning commission empowered under s. [59.693, 60.627, 61.354, or 62.234], Wis. Stats., that is designated by the [governing body] to administer this ordinance.

(2) “ Agricultural facilities and practices” has the meaning given in s. 281.16 (1), Wis. Stats.

(3) “ Best management practice” or “BMP” means structural or non-structural measures, practices, techniques, or devices employed to avoid or minimize soil, sediment, or pollutants carried in runoff to waters of the state.

(4) “ Business day” means a day the office of the [administering authority] is routinely and customarily open for business.

(5) “ Cease and desist order” means a court-issued order to halt land disturbing construction activity that is being conducted without the required permit or in violation of a permit issued by the [administering authority].

(6) “ Construction site” means an area upon which one or more land disturbing construction activities occur, including areas that are part of a larger common plan of development or sale when multiple separate and distinct land disturbing construction activities may be taking place at different times on different schedules but under one plan. A long-range planning document that describes separate construction projects, such as a 20-year transportation improvement plan, is not a common plan of development.

(7) “ Design storm” means a hypothetical discrete rainstorm characterized by a specific duration, temporal distribution, rainfall intensity, return frequency, and total depth of rainfall.

(8)* “Division of land” means the creation from one parcel of [number] or more parcels or building sites of [number] or fewer acres each in area when such creation occurs at one time or through the successive partition within a 5-year period.

Note to Users: This definition is only needed depending on the type of jurisdiction selected under S. 04 (2) above.

(9) “ Erosion” means the process by which the land's surface is worn away by the action of wind, water, ice, or gravity.

(10) “ Erosion and sediment control plan” means a comprehensive plan developed to address pollution caused by erosion and sedimentation of soil particles or rock fragments during construction.

(11)* “Extraterritorial” means the unincorporated area within 3 miles of the corporate limits of a first, second, or third class city, or within 1.5 miles of a fourth class city or village.

Note to Users: This definition is only needed depending on the type of jurisdiction selected under S. 04 (2) above.

(12) “ Final stabilization” means that all land disturbing construction activities at the construction site have been completed and that a uniform perennial vegetative cover has been established with a density of at least 70 percent of the cover for the unpaved areas and areas not covered by permanent structures or that employ equivalent permanent stabilization measures.

(13) “ Land disturbing construction activity” means any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or non-vegetative soil cover that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state. “Land disturbing construction activity” includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling, and grading activities.

(14) “ Landowner” means any person holding fee title, an easement or other interest in property that allows the person to undertake cropping, livestock management, land disturbing construction activity, or maintenance of storm water BMPs on the property.

(15) “ Maximum extent practicable” means the highest level of performance that is achievable but is not equivalent to a performance standard identified in this ordinance as determined in accordance with S. 055 of this ordinance.

(16) “ Performance standard” means a narrative or measurable number specifying the minimum acceptable outcome for a facility or practice.

(17) “ Permit” means a written authorization made by the [administering authority] to the applicant to conduct land disturbing construction activity or to discharge post-construction runoff to waters of the state.

(18) “ Pollutant” has the meaning given in s. 283.01 (13), Wis. Stats.

(19) “ Pollution” has the meaning given in s. 281.01 (10), Wis. Stats.

(20) “ Responsible party” means the landowner or any other entity performing services to meet the requirements of this ordinance through a contract or other agreement.

(21) “ Runoff” means storm water or precipitation including rain, snow, or ice melt or similar water that moves on the land surface via sheet or channelized flow.

(22) “ Sediment” means settleable solid material that is transported by runoff, suspended within runoff, or deposited by runoff away from its original location.

(23) "Silviculture activity" means activities including tree nursery operations, tree harvesting operations, reforestation, tree thinning, prescribed burning, and pest and fire control. Clearing and grubbing of an area of a construction site is not a “silviculture activity.”

(24) “ Site” means the entire area included in the legal description of the land on which the land disturbing construction activity is proposed in the permit application.

(25) “ Stop work order” means an order issued by the [administering authority] that requires that all construction activity on the site be stopped.

(26) “ Technical standard” means a document that specifies design, predicted performance, and operation and maintenance specifications for a material, device, or method.

(27) “ Transportation facility” means a highway, a railroad, a public mass transit facility, a public-use airport, a public trail, or any other public work for transportation purposes, such as harbor improvements under s. 85.095 (1) (b), Wis. Stats. “Transportation facility” does not include building sites for the construction of public buildings and buildings that are places of employment that are regulated by the Wisconsin Department of Natural Resources pursuant to s. 281.33, Wis. Stats.

(28) “ Waters of the state” includes those portions of Lake Michigan and Lake Superior within the boundaries of this state, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems, and other surface water or groundwater, natural or artificial, public or private, within this state or its jurisdiction.

(29) “ Wis. Adm. Code” means the Wisconsin Administrative Code, published under s. 35.93, Wis. Stats.

(30) “ Wis. Stats.” means the Wisconsin Statutes published under s. 35.18 of the Wisconsin Statutes.

S. 055 APPLICABILITY OF MAXIMUM EXTENT PRACTICABLE.

Maximum extent practicable applies when a person who is subject to a performance standard of this ordinance demonstrates to the [administering authority]'s satisfaction that a performance standard is not achievable and that a lower level of performance is appropriate. In making the assertion that a performance standard is not achievable and that a level of performance different from the performance standard is the maximum extent practicable, the responsible party shall take into account the best available technology, cost effectiveness, geographic features, and other competing interests such as protection of public safety and welfare, protection of endangered and threatened resources, and preservation of historic properties.

S. 06 TECHNICAL STANDARDS.

All BMPs required for compliance with this ordinance shall meet design criteria, standards, and specifications based on any of the following:

(1) Design guidance and technical standards identified or developed by the Wisconsin Department of Natural Resources under subch. V of ch. NR 151, Wis. Adm. Code.

(2) Soil loss prediction tools (such as the Universal Soil Loss Equation (USLE)) when using an appropriate rainfall or runoff factor (also referred to as the R factor) or an appropriate design storm and precipitation distribution, and when considering the geographic location of the site and the period of disturbance.

Note to Users: The USLE and its successors RUSLE and RUSLE2, utilize an R factor that has been developed to estimate annual soil erosion, averaged over extended time periods. The R factor can be modified to estimate monthly and single-storm erosion.

(3) Technical standards and methods approved by the [administering authority].

Note to Users: The following section, S. 07, “Performance Standards for Construction Sites Under One Acre,” is optional.

S. 07 PERFORMANCE STANDARDS FOR CONSTRUCTION SITES UNDER ONE ACRE.

(1) RESPONSIBLE PARTY. The responsible party shall comply with this section.

(2) EROSION AND SEDIMENT CONTROL PRACTICES. Erosion and sediment control practices at each site where land disturbing construction activity is to occur shall be used to prevent or reduce all of the following:

(a) The deposition of soil from being tracked onto streets by vehicles.

(b) The discharge of sediment from disturbed areas into on-site storm water inlets.

(d) The discharge of sediment from drainage ways that flow off the site.

(e) The discharge of sediment by dewatering activities.

(f) The discharge of sediment eroding from soil stockpiles existing for more than 7 days.

(g) The transport by runoff into waters of the state of chemicals, cement, and other building compounds and materials on the construction site during the construction period. However, projects that require the placement of these materials in waters of the state, such as constructing bridge footings or BMP installations, are not prohibited by this subdivision.

(3) LOCATION. The BMPs shall be located so that treatment occurs before runoff enters waters of the state.

(4) IMPLEMENTATION. The BMPs used to comply with this section shall be implemented as follows:

(a) Erosion and sediment control practices shall be constructed or installed before land disturbing construction activities begin.

(b) Erosion and sediment control practices shall be maintained until final stabilization.

(c) Final stabilization activity shall commence when land disturbing activities cease and final grade has been reached on any portion of the site.

(d) Temporary stabilization activity shall commence when land disturbing activities have temporarily ceased and will not resume for a period exceeding 14 calendar days.

(e) BMPs that are no longer necessary for erosion and sediment control shall be removed by the responsible party.

S. 08* PERFORMANCE STANDARDS FOR CONSTRUCTION SITES OF ONE ACRE OR MORE.

(1) RESPONSIBLE PARTY. The responsible party shall comply with this section and implement the erosion and sediment control plan developed in accordance with S. 10*.

(2) EROSION AND SEDIMENT CONTROL PLAN. A written site-specific erosion and sediment control plan shall be developed in accordance with S. 10* of this ordinance and implemented for each construction site.

Note to Users: The written plan may be that specified within s. NR 216.46, Wis. Adm. Code, the erosion and sediment control portion of a construction plan or other plan.

(3) EROSION AND OTHER POLLUTANT CONTROL REQUIREMENTS. The erosion and sediment control plan required under sub. (2) shall include all of the following:

(a) EROSION AND SEDIMENT CONTROL PRACTICES. Erosion and sediment control practices at each site where land disturbing construction activity is to occur shall be used to prevent or reduce all of the following:

1. The deposition of soil from being tracked onto streets by vehicles.

2. The discharge of sediment from disturbed areas into on-site storm water inlets.

3. The discharge of sediment from disturbed areas into adjacent waters of the state.

4. The discharge of sediment from drainage ways that flow off the site.

5. The discharge of sediment by dewatering activities.

6. The discharge of sediment eroding from soil stockpiles existing for more than 7 days.

7. The discharge of sediment from erosive flows at outlets and in downstream channels.

8. The transport by runoff into waters of the state of chemicals, cement, and other building compounds and materials on the construction site during the construction period. However, projects that require the placement of these materials in waters of the state, such as constructing bridge footings or BMP installations, are not prohibited by this subdivision.

9. The transport by runoff into waters of the state of untreated wash water from vehicle and wheel washing.

(b) SEDIMENT PERFORMANCE STANDARDS. In addition to the erosion and sediment control practices under par. (a), the following erosion and sediment control practices shall be employed:

1. BMPs that, by design, discharge no more than 5 tons per acre per year, or to the maximum extent practicable, of the sediment load carried in runoff from initial grading to final stabilization.

2. No person shall be required to employ more BMPs than are needed to meet a performance standard in order to comply with maximum extent practicable. Erosion and sediment control BMPs may be combined to meet the requirements of this paragraph. Credit may be given toward meeting the sediment performance standard of this paragraph for limiting the duration or area, or both, of land disturbing construction activity, or for other appropriate mechanisms.

3. Notwithstanding subd. 1., if BMPs cannot be designed and implemented to meet the sediment performance standard, the erosion and sediment control plan shall include a written, site-specific explanation of why the sediment performance standard cannot be met and how the sediment load will be reduced to the maximum extent practicable.

1. Maintenance of existing vegetation, especially adjacent to surface waters whenever possible.

2. Minimization of soil compaction and preservation of topsoil.

3. Minimization of land disturbing construction activity on slopes of 20 percent or more.

4. Development of spill prevention and response procedures.