STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER
AMENDING PERMANENT RULE
The State of Wisconsin Department of Transportation Proposes an Order to Amend Permanent Rule Wisconsin Administrative Code § Trans 201.23 and ch. Trans 202 Relating to Wisconsin Scenic Byway Program. The Statement of Scope for this Permanent Rule, SS 055-14, was approved by the Governor on May 23, 2014, published in the Wisconsin Administrative Register No.: 702 on June 14, 2014, and approved by the Secretary of the State of Wisconsin Department of Transportation (“Department”) Mark Gottlieb, P.E., on June 26, 2014, as required by Wis. Stat. § 227.135(2). The Department proposes an Order to amend permanent rule Wisconsin Administrative Code § Trans 201.23 and ch. Trans 202 relating to the Wisconsin Scenic Byway Program. The analysis below was prepared by the Department. ANALYSIS
Statutes Interpreted: Wis. Stat. § 84.106. Explanation of Agency Authority: Authority for this rulemaking is provided in Wis. Stat. § 84.106. Wisconsin Stat. § 84.106 (1m), requires the Department to develop, implement, and administer a program to designate highways or portions of highways in this state that have outstanding scenic, historic, cultural, natural, recreational, or archaeological qualities as scenic byways. Originally only state and federal highways, except interstates, could be incorporated into a scenic byway. 2011 Wisconsin Act 147 amended Wis. Stat. § 84.106, so that any type of highway, except for interstates, intended for regular use by the motoring public has the potential to be designated as a scenic byway. Wisconsin Stat. § 84.106 (2) requires the Department to promulgate rules related to the scenic byway program. This rulemaking is to incorporate this statutory change into Wis. Admin. Code § Trans 201.23 and ch. Trans 202. Related Statute or Rule: Wis. Stat. § 84.106. Plain Language Analysis: This rulemaking specifies which types of highways may be integrated into a scenic byway created under Wis. Stat. § 84.106. 2011 Wisconsin Act 147 amended Wis. Stat. § 84.106, so that any type of highway, except interstates, has the potential to be designated as a scenic byway. Prior to 2011 Wisconsin Act 147, only state and federal highways, other than interstates, could be incorporated into a scenic byway. This rulemaking incorporates this statutory change into Wis. Admin. Code § Trans 201.23 and ch. Trans 202 and excludes those parts of the transportation network not designed or intended for regular use by the motoring public. The following types of highways will be eligible for inclusion as a scenic byway:
• State and federal highways (currently eligible);
• Connecting highways (currently eligible);
• County highways (new);
• Local streets (new).
The following types of facilities fall within the scope of the legal term “highway” but shall not be eligible for inclusion as a scenic byway:
• Interstate highways (already excluded by rule);
• Alleys (new);
• Bike paths, sidewalks and footpaths (new);
• ATV and snowmobile trails (new);
• Hiking trails (new);
• Railroad rights of way (new);
• Any other facility not intended for use by motor vehicles (new).
Because the Scenic Byways program will now include highways under county and local jurisdiction, to which the federal Highway Beautification Act and conforming state laws do not apply, state outdoor advertising regulations related to scenic highways found in Wis. Admin. Code § Trans 201.23 will make clear that these outdoor advertising regulations are not being extended to those local and county roads. 2011 Wisconsin Act 147 also created Wis. Stat. § 84.106 (3), related to marking highways. Wisconsin Stat. § 84.106 (3) specifies that the Department is responsible for the installation and maintenance of scenic byways logo signs along sections of the scenic highway that are part of the state trunk highway system, and also provides that the local government that has maintenance authority over a road or highway shall be responsible for the installation and maintenance of scenic byways logo signs on those roads. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: 2011 Wisconsin Act 147 is consistent with the authorizing legislation for a national scenic byways program found in Title 23 U.S.C. § 162, and the control of outdoor advertising on scenic byways on the Federal Aid Primary System found in 23 U.S.C. § 131(2).
