Chapter NR 166

NR 166.11(7) (7) Construction contracts and subcontracts.

NR 166.11(7)(a) (a) Applicability. This subsection applies to construction contracts or subcontracts awarded by recipients for any construction activity. The department may provide SDWLP financial assistance for costs of a construction contract if the municipality complies with all applicable procurement laws in obtaining the construction contractor.

NR 166.11(7)(b) (b) Type of contract. The scored project work shall be performed under one or more contracts awarded by the recipient to private firms except for force account work authorized under sub. (5). Unless the department gives advance written approval for the recipient to use some other acceptable type of contract, each contract shall be one of the following types or a combination of these types: lump sum, unit price, or time and expense. A cost–plus–a–percentage–of–cost type contract may not be used in any circumstance.

NR 166.11(7)(c) (c) Contract change orders.

NR 166.11(7)(c)1. 1. The recipient shall secure a fair and reasonable price for each contract change order.

NR 166.11(7)(c)2. 2. The recipient shall promptly and no later than 90 days after execution of the change order submit to the department construction management engineer each change order and all associated backup documentation.

NR 166.11(7)(c)3. 3. If a change order is executed fewer than 90 days but no more than 9 weeks prior to the estimated loan closing date for the project, the recipient shall submit the change order to the department promptly after execution and no later than 9 weeks prior to the loan closing in order to have the impact of the change order on the contract reflected in the financial assistance agreement budget.

NR 166.11(7)(c)4. 4. The department may deny the costs of the change order if the recipient does not submit the change order to the department within the timeframes specified in subds. 2. and 3.

NR 166.11(7)(c)5. 5. If the recipient is in the process of negotiating a change order, has a change order pending execution, or executes a change order less than 9 weeks but no more than 3 weeks prior to the estimated loan closing date, the recipient shall provide information regarding the purpose of and likely cost for the change order in writing to the department construction management engineer or loan project manager for consideration of inclusion in the financial assistance agreement budget.

NR 166.11(7)(c)6. 6. The recipient shall submit for approval by the department all change orders for all contracts included in whole or in part in a project funded under this chapter.

NR 166.11(7)(c)7. 7. The recipient shall receive the department construction management engineer’s approval of the costs included in the change order prior to submitting to the department a request for disbursement of funds for costs of the change order.

NR 166.11 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.12 NR 166.12 Reimbursement and refinancing.

NR 166.12(1) (1) Reimbursement of previously paid debt. The department may approve reimbursement of eligible project costs previously paid by the municipality from its internal funds, if the reimbursement is in compliance with applicable U.S. treasury reimbursement regulations in 26 CFR 1.150-2, the project does not reach substantial completion more than 3 years prior to the date the applicant submits a complete application for financial assistance under s. NR 166.08 (4), and the applicant does not already have outstanding long-term affordable debt for the project.

NR 166.12(2) (2) Refinancing of interim debt. The department may approve refinancing of the eligible portion of a municipality’s interim debt subject to the limits established in s. NR 166.07 (3).

NR 166.12 Note Note: The department’s approval of reimbursement and refinancing transactions is preliminary. DOA makes the final determination regarding whether the state revolving fund is able to refinance a municipality’s interim debt or reimburse a municipality’s internal accounts.

NR 166.12 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23 Register October 2023.

NR 166.13 NR 166.13 Loan interest rates. Interest rates for projects eligible under s. NR 166.06 shall be set in accordance with s. 281.61 (11) (a), Stats., and all of the following:

NR 166.13(1) (1) If the municipality meets all of the following criteria, the loan interest rate shall be determined as specified in s. 281.61 (11) (a) 2., Stats.:

NR 166.13(1)(a) (a) The population of the municipality is less than 10,000.

NR 166.13(1)(b) (b) The median household income of the municipality is 80 percent or less of the median household income in this state. The department shall determine median household income of a municipality for the fiscal year from which financial assistance is requested as established under s. NR 166.135.

NR 166.13(2) (2) If the municipality does not meet all of the criteria established in sub. (1), the loan interest rate shall be determined as specified in s. 281.61 (11) (a) 1., Stats.

NR 166.13(3) (3) The department shall determine the interest rate based on the market rate in effect at the time the municipality passes a bond resolution to secure the loan from the SDWLP.

NR 166.13 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.135 NR 166.135 Median household income. The department shall determine the median household income of each applicant for the fiscal year from which financial assistance is requested based on all of the following instructions as applicable to the applicant:

NR 166.135(1) (1) If the municipality is a place, as defined for purposes of data collection by the U.S. bureau of the census, including a city, village, or census designated place, or the municipality is a county or a minor civil division, the department shall obtain the most recent 5-year-data median household income figure published for the municipality by the U.S. bureau of the census prior to the department’s publishing of the annual project priority list.

NR 166.135 Note Note: The department uses U.S. bureau of the census municipal incomes as derived from the American Community Survey and published annually in the 5-year survey data. At the time of writing of this administrative code, the U.S. bureau of the census is not collecting income data during the decennial census. The U.S. bureau of the census does not publish data for all types of municipalities eligible for SDWLP financial assistance.

NR 166.135(2) (2) The department may require a municipality for which the U.S. bureau of the census does not publish median household income data to provide information to assist the department in determining a median household income for the municipality for purposes of this chapter. The information required and used by the department may include any of the following:

NR 166.135(2)(a) (a) The number of residential users served by the municipality.

NR 166.135(2)(b) (b) A map showing the municipal boundaries, and the number of residential users served by or the population of the municipality within each town or county for municipalities that cross town or county boundaries.

NR 166.135(3) (3) If the municipality is a town sanitary district or public inland lake protection and rehabilitation district, the municipality may supply a median household income provided by the U.S. bureau of the census, along with documentation of how the median household income was determined. Whether the median household income is initially determined by the department or supplied by the municipality for the department’s approval, this median household income of the municipality shall be derived from the same ACS data release as that being used by the department for the fiscal year applicable to the funding cycle for which the application is submitted and shall be one of the following:

NR 166.135(3)(a) (a) A median household income derived by requesting a custom tabulation from the bureau of the census of ACS income data at the census block level.

NR 166.135 Note Note: To obtain a custom tabulation, the municipality will likely need to compare a map showing the boundaries of the municipality to a census block map and determine which census blocks contain any portion of the municipality. The municipality would then submit the appropriate census block numbers to the U.S. bureau of the census (see https://www.census.gov/programs-surveys/acs/data/custom-tables.html) with a request for a custom tabulation of a median household income figure for that set of identified blocks only.

NR 166.135(3)(b) (b) The median household income of the census tract or block group that encompasses the municipality. If the municipality falls within 2 or more census tracts or block groups, the median household income shall be weighted by the population of the municipality that resides within each census tract or block group.

NR 166.135(3)(c) (c) The median household income of the minor civil division within which the municipality is located. If the municipality falls within 2 or more minor civil divisions, the median household income shall be weighted by the population of the municipality that resides within each minor civil division.

NR 166.135(3)(d) (d) An average median household income calculated by: determining the published median household income of each member municipality if the applicant municipality, such as a joint local water authority or sanitary district, is made up of multiple municipalities, such as cities, villages, and census designated places; weighting each of those median household incomes by the percentage that the population of the individual municipality is of the total population; summing the individual weighted median household incomes; and dividing the sum by the total number of municipalities that are members of the applicant municipality.

NR 166.135(4) (4) If the service area of the water system within the boundaries of the municipality is different than the municipality’s boundaries, the municipality may choose to follow the custom tabulation procedure as described under sub. (3) (a) and submit the result to the department to use in lieu of the median household income obtained by the department as described in sub. (1).

NR 166.135 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.14 NR 166.14 Financial assistance agreement conditions.

NR 166.14(1) (1) Each financial assistance agreement shall require the recipient to do all of the following:

NR 166.14(1)(a) (a) Maintain system water rates and operating rules in accordance with s. NR 166.10 (7) or (8).

NR 166.14(1)(b) (b) Comply with all pertinent requirements of federal, state, and local environmental laws and regulations.

NR 166.14(1)(c) (c) Comply with the requirements contained in 42 USC 300j-12.

NR 166.14(1)(d) (d) Pay the costs of water system construction that are ineligible for financial assistance under this chapter.

NR 166.14(1)(e) (e) Comply with all state and local laws regarding procurement and public contracts.

NR 166.14(1)(f) (f) Provide department representatives access to the scored project, including construction activities, whenever the project is in preparation or progress, and for a final inspection when the project is complete. For purposes of providing access, the recipient shall do all of the following:

NR 166.14(1)(f)1. 1. In each of its contracts for the scored project include a provision that requires the recipient and its contractors to allow the department access to records of contractors and subcontractors pertinent to the project for the purpose of making inspections, examinations, excerpts, copies, and transcriptions.

NR 166.14(1)(f)2. 2. Allow DOA or its agent access to project-related records for audits.

NR 166.14(1)(g) (g) Expeditiously initiate and complete the project in accordance with the financial assistance agreement and application, including construction of and payments for the portions ineligible for SDWLP financial assistance and any project schedule approved by the department. Failure of the recipient to promptly initiate project work may be deemed a breach of the financial assistance agreement.

NR 166.14(1)(h) (h) Promptly notify the department of changes to the project, including notifying a department plan reviewer and the department construction management engineer when plans and specifications are being revised.

NR 166.14(1)(i) (i) Promptly submit to the department a copy of any prime contract or modification of it and any revisions to plans and specifications.

NR 166.14(1)(j) (j) Begin repayment of the principal balance of the loan no later than 12 months after the substantial completion date of the project as specified in the financial assistance agreement and make the final principal payment no later than 20 years after the date of the financial assistance agreement unless the financial assistance agreement term is greater than 20 years but not more than 30 years. If the loan term is greater than 20 years, the municipality shall make the final principal payment no later than 30 years after the date of the financial assistance agreement.

NR 166.14(1)(k) (k) Provide and maintain adequate construction inspection to ensure conformance with the approved plans and specifications, proper construction methods, and the financial assistance agreement.

NR 166.14(1)(L) (L) Notify the department of the substantial completion of the project.

NR 166.14(1)(n) (n) Comply with all applicable provisions of any outstanding SDWLP and clean water fund program financial assistance agreements and interest rate subsidy agreements.

NR 166.14(1)(o) (o) Obtain and maintain full legal right and authority required to own, control, operate, and maintain the project for at least the term of the financial assistance agreement, including assuring that any of the following requirements regarding the land on which the project takes place are met:

NR 166.14(1)(o)1. 1. If the municipality prior to signing a financial assistance agreement owns all of the land on which the project takes place, the municipality shall maintain ownership of the land on which the project is built for at least the term of the financial assistance agreement unless the municipality obtains approval from the department to discontinue operation of, sell, or otherwise dispose of the project.

NR 166.14(1)(o)2. 2. If the municipality prior to signing a financial assistance agreement does not own any of the land on which the project takes place, the municipality shall obtain and maintain for at least the term of the financial assistance agreement all necessary permits, licenses, easements, and approvals required to give the municipality the authorities and permissions needed to construct, operate, and maintain the project on the land on which the project is built unless the municipality obtains approval from the department to discontinue operation of, sell, or otherwise dispose of the project.

NR 166.14(1)(o)3. 3. If the municipality prior to signing a financial assistance agreement owns some but not all of the land on which the project takes place, the municipality shall follow the requirements under subds. 1. and 2. regarding maintaining ownership of or access needed to the land on which the project takes place to allow the municipality to construct, operate, and maintain the project on the land on which the project is built for at least the term of the financial assistance agreement.

NR 166.14(2) (2) Not withstanding sub. (1) (o), municipalities are not required to submit a certification or legal opinion regarding portions of land on which removal of private lead service lines or galvanized pipes takes place.

NR 166.14(3) (3) The financial assistance agreement is not effective until all parties to the financial assistance agreement have signed it.

NR 166.14 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.15 NR 166.15 Financial management. The recipient shall do all of the following:

NR 166.15(1) (1) Maintain project accounts in accordance with generally accepted accounting principles, governmental accounting standards board requirements, or other methods of accounting accepted by the department or required by the federal government.

NR 166.15(2) (2) Maintain a financial management system that meets the requirements, terms, and conditions of the financial assistance agreement and ch. Adm 35.

NR 166.15(3) (3) Comply with any U.S. treasury requirements for maintaining the tax–exempt status of the bonds or notes sold to the SDWLP.

NR 166.15 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.16 NR 166.16 Financial assistance disbursements.

NR 166.16(1) (1) Requests for disbursement. The recipient shall submit to the department requests for disbursement for eligible costs in the format specified by the department.

NR 166.16(2) (2) Adjustment. Before the final disbursement under the financial assistance agreement, the department may recommend to DOA that any request for disbursement be reviewed or audited.

NR 166.16(3) (3) Withholding of funds. The department may withhold funds on the basis of any of the following:

NR 166.16(3)(a) (a) The department may direct DOA to withhold financial assistance disbursements if the department determines that a recipient has failed to comply with project objectives or the terms, conditions, or reporting requirements of the financial assistance agreement.

NR 166.16(3)(b) (b) The department may withhold 5 percent of the principal amount of a loan until all of the project closeout requirements under sub. (4) (b) are completed.

NR 166.16(3)(c) (c) The department may withhold payment of costs that fall outside of the beginning or end dates of a contract or that are in excess of the estimated not-to-exceed amount in the contract until the recipient amends the contract.

NR 166.16(3)(d) (d) The department may withhold payment of costs of a contract until the recipient submits the required documentation for the costs, including a copy of the department construction management engineer’s approval letter for any change order for which payment is requested and any amendments to engineering or other professional services contracts for which disbursement of financial assistance for costs of the contract will be requested.

NR 166.16(4) (4) Final disbursement and project closeout.

NR 166.16(4)(a) (a) The recipient shall submit the final request for disbursement as soon as is practicable after final completion of project construction.

NR 166.16(4)(b) (b) All of the following project closeout procedures shall occur prior to the final disbursement or as soon as is practicable after final completion of project construction if the recipient determines it will not be requesting any additional funds but did not previously label a request for disbursement as the final request:

NR 166.16(4)(b)1. 1. The department shall complete a final inspection and sign off on the scored project.

NR 166.16(4)(b)2. 2. The recipient shall submit to the department for review all change orders and amendments for all contracts associated with the project that the recipient did not submit before or during construction of the project.

NR 166.16(4)(b)3. 3. The recipient shall certify its acceptance of the project from its contractors and engineers on a form provided by the department.

NR 166.16 Note Note: A project acceptance certification form is available on the Environmental Improvement Fund website at https://dnr.wisconsin.gov/aid/documents/EIF/Forms/forms.html or in paper form from the Bureau of Community Financial Assistance, Department of Natural Resources, Box 7921, Madison WI 53707-7921.

NR 166.16(4)(b)4. 4. The recipient shall document final utilization of MBEs and WBEs on a form provided by the department.

NR 166.16 Note Note: An MBE/WBE utilization form is available on the Environmental Improvement Fund website at https://dnr.wisconsin.gov/aid/documents/EIF/Forms/forms.html or in paper form from the Bureau of Community Financial Assistance, Department of Natural Resources, Box 7921, Madison WI 53707-7921. This form is also provided in the financial assistance agreement as an exhibit.

NR 166.16(4)(b)5. 5. The recipient shall certify its compliance with federal requirements as detailed in the financial assistance agreement.

NR 166.16(4)(b)6. 6. The department shall inform DOA of the recipient’s compliance with all applicable requirements of this chapter and the financial assistance agreement.

NR 166.16(4)(b)7. 7. After the department determines that the project closeout requirements under subds. 1. to 6. are completed, the department shall notify the recipient that the project is closed out, or, if there is a final disbursement yet to be sent to the recipient, the department shall notify the recipient of the date and amount of the final disbursement and that the project will be closed out on the date of the final disbursement.

NR 166.16(4)(c) (c) If construction of a project is complete prior to the SDWLP loan closing for the project, the recipient shall submit project closeout documents within 90 days of the loan closing date.

NR 166.16(4)(d) (d) If the recipient does not provide the required documents for project closeout of a completed project to the department for any SDWLP financial assistance agreement or any other financial assistance from the environmental improvement fund and applies for funding from the environmental improvement fund for another project, the department may deny financial assistance for the new project until the previous project is closed out according to requirements under this chapter.