ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING, AND REPEALING AND RECREATING RULES
The statement of scope for this rule, WT-04-17, was approved by the Governor on March 7, 2017, published in Register No. 735 A2 on March 13, 2017, and approved by the Natural Resources Board on May 24, 2017. This rule was approved by the governor on March 16, 2018. The Wisconsin Natural Resources Board proposes an order to amend ch. NR 152 Wis. Adm. Code, repeal and recreate ch. NR 152 Appendix A and Appendix B, relating to model ordinances for construction site erosion and sediment control, and post-construction storm water management. WT-04-17
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Analysis Prepared by the Department of Natural Resources
1. Statutes Interpreted:
2. Statutory Authority:
3. Explanation of Agency Authority:
Section 281.33 (4), Stats., directs the department to prepare model ordinances for construction site erosion and sediment control, and post-construction storm water management in the form of an administrative rule. Section 281.16 (2), Stats., directs the department by administrative rule to prescribe performance standards for nonpoint sources that are not agricultural facilities or agricultural practices. Section 281.33 (3) (a) 1., Stats., requires the department to establish by rule uniform statewide standards rather than minimum standards for construction site erosion and sediment control, and storm water management. Section 281.33 (3) (d), Stats., provides that if the department determines that the non-agricultural performance standards prescribed by rule pursuant to s. 281.16 (2), Stats., meet the requirements for establishing the uniform statewide standards under s. 281.33 (3) (a) 1., Stats., then the non-agricultural performance standards suffice as the uniform statewide standards. (In October 2014, the department developed program guidance (#3800-2014-03) to clarify that the non-agricultural performance standards prescribed in ch. NR 151, Wis. Adm. Code, are the uniform statewide standards pursuant to s. 281.33 (3) (d), Stats.) 4. Related Statutes or Rules:
This rule is directly related to the statewide non-agricultural performance standards pursuant to ch. NR 151, Wis. Adm. Code, and s. 281.33 (4), Stats., directing the department to prepare model ordinances for construction site erosion and sediment control, and post-construction storm water management in the form of an administrative rule. 5. Plain Language Analysis:
The purpose of this proposed rule change is to reflect the non-agricultural performance standards that were updated in 2011 by removing obsolete language and promoting statewide consistency with implementation of the performance standards.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Federal regulations do not require states to create model ordinances for the regulation of construction site erosion and sediment control, and post-construction storm water management. This rule revision is to fulfill the state statutory requirement to prepare the model ordinances by administrative rule.
7. Comparison with Similar Rules in Adjacent States:
Each of the neighboring states has some variation of construction site erosion and sediment control, and/or post-construction storm water model ordinance in the form of guidance available to their local units of government. None of the neighboring states require their departments to develop construction site erosion and sediment control, or post-construction storm water management model ordinances for local units of government by administrative rule. Whereas the State of Wisconsin directs the department, via state statute, to develop model ordinances for municipalities by administrative rule. Other states do require that the regulated community (Municipal Separate Storm Sewer System permittees) to develop a construction site runoff control ordinance to require proper soil erosion and sediment control.
*Michigan does not have a soil erosion and sediment control model ordinance, but has a low impact development storm water model ordinance developed and reviewed by environmental consultants in their “Low Impact Development Manual for Michigan” (http://www.semcog.org/Reports/LID/index.html#474) 8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
This rule does not invoke or create any new authority. Ch. NR 152, Wis. Adm. Code, uses the prescribed non-agricultural performances standards of ch. NR 151, Wis. Adm. Code. 9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The department is providing a comment period on this economic impact analysis whereas all local governmental units will have the opportunity to participate in the development of this EIA.
10. Effect on Small Business (initial regulatory flexibility analysis):
While this rule is to assist local governments in developing ordinances consistent with ch. NR 151, Wis. Adm. Code, performance standards, an ordinance in and of itself will impact development in the community where it is enacted. The impact is still expected to be minimal as this rule is only tangentially involved. The authority for complying with an ordinance is found in state statute. This rule does not invoke or create any new authority. The primary entities who will be directly affected by the proposed rule are local government units. Ch. NR 152, Wis. Adm. Code, has minimal fiscal impact on either state or local governments. The only state fiscal impact anticipated is that associated with the development, printing, and distribution of the ordinances. These costs were anticipated to be done as part of the workload identified in the fiscal estimates in the 2011 ch. NR 151, Wis. Adm. Code, updates. There is no impact to local units of government as adoption of the ordinance is not required by this rule. Changes in this rule package simply codify existing practices outlined in ch. NR 151, Wis. Adm. Code, performance standards. 11. Agency Contact Person:
Suzan Limberg
Wisconsin Department of Natural Resources
Bureau of Watershed Management, WT/3
101 S. Webster St.
P.O. Box 7921
Madison, WI 53707-7921
608/266-9278
Section 1. Chapter NR 152 (title) is amended to read: MODEL ORDINANCES FOR CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL AND POST-CONSTRUCTION STORM WATER MANAGEMENT
Section 2. NR 152.01 is amended to read:
NR 152.01 Purpose. (1) This chapter includes 2 model ordinances that the department is required to prepare under s. 281.33 (4), Stats. One is a model ordinance for construction site erosion and sediment control at sites where construction activities do not include the construction of a building. The other is a model ordinance for post-construction storm water management. The purpose of making these model ordinances available to local units of government is to secure so far as practicable the voluntary uniformity of local regulations regarding construction site erosion and sediment control and storm water management, to further the purpose of s. 281.33 (1), Stats., and to promote consistency with state non-agricultural performance standards authorized under s. 281.16 (2) (a), Stats. Ch. NR 152 Appendix A, contains the state model construction site erosion and sediment control zoning ordinance and ch. NR 152 Appendix B, contains the state model post-construction storm water management zoning ordinance. (2) The department shall distribute a copy of the model construction site erosion and sediment control zoning ordinance or a copy of the model post-construction storm water management zoning ordinance, or both to any city, village, county or town that submits a request for the document, as required by s. 281.33 (4), Stats. Note: Adoption by a city, county, village or town of either model ordinance in its entirety is voluntary. However, there are other administrative rules, such as chs. NR 120, 153 and 216, which require consistency of local regulations with the performance standards of ch. NR 151. These performance standards are incorporated in the model ordinances. Requests for printed or electronic copies of the model ordinances may be submitted to the Wisconsin Department of Natural Resources, Runoff Management Section, Box 7921, Madison, WI 53707-7921. Section 3. NR 152 Appendix A is repealed and recreated to read:
APPENDIX A: MODEL CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL ORDINANCE
Note to Users: The “Users” in this document are the municipalities that use this guidance in developing their ordinances. “Note to Users” appears in italics throughout these model ordinances and should not be included in the final ordinance. This model ordinance includes the use of brackets [ ] around phrases that are to be filled in by the municipality. For example, the phrase [administering authority] is frequently used. Where the municipality chooses to have the ordinance administered by the City Engineer, the phrase [administering authority] should be replaced by "City Engineer.” In a few places, the model ordinance includes phrases in brackets that are underlined [______]. In these cases, one of the underlined phrases should be selected verbatim. For example, if the phrase includes statutory citations, several underlined choices may be given such as [59.693, 60.627, 61.354, or 62.234]. A county would replace the phrase in brackets with “59.693,” since that is the appropriate citation for a county to use. Some sections and subsections are optional for users to include in the ordinance and will be identified as such in a “Note to Users.” An asterisk ( * ) denotes subsequent numbering and references to numbered sections or subsections that would be affected by exclusion of the optional text.
