DRAFT #2
May 8, 2019
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 190, NR 191, NR 192, NR 195 and NR 198; to amend NR 1.91 (2) (d), 20.40 (2) (a), and 150.20 (2) (a) 21.; and to create NR 193 relating to the administration of cost-sharing grant programs for lake and river planning, monitoring, and protection, and aquatic invasive species. |
WY-18-15
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: ss. 281.68, 281.69, 281.70, and 23.22 (2) (c), Stats. 2. Statutory Authority: ss. 281.68, 281.69, 281.70, 23.22 (2) (c), and 227.11 (2) (a), Stats. 3. Explanation of Agency Authority: This order implements s. 281.68, Stats., which directs the department to promulgate rules to establish and administer a cost-sharing program to award grants to eligible recipients for lake management planning projects, projects to provide information and education on the use of lakes and natural lake ecosystems and on the quality of water in lakes and the quality of natural lake ecosystems, and to award contracts to create and support a statewide lake monitoring and protection network. The rule also establishes a procedure to determine eligible activities and participants in the statewide lake monitoring and protection network, defines minimum and maximum membership fees for qualified lake associations, and allows the department to approve lake management plan recommendations for funding under a lake management grant as authorized under s. 281.69, Stats. This order implements s. 281.69, Stats., which directs the department to promulgate rules to establish and administer a cost-sharing program to award grants to eligible recipients for lake management projects that improve or protect the quality of water in lakes or the quality of natural lake ecosystems, and for lake classification projects that will classify lakes by use and implement protection activities based on their classification. The rule also allows the department to award contracts for lake classification technical assistance. Section 281.69, Stats. also directs the department to promulgate rules to administer and determine eligible recipients and activities for lake management projects and lake classification projects. This order implements s. 281.70, Stats., which directs the department to establish and administer a cost-sharing program to award grants to eligible recipients for river planning projects and river management projects. The rule designates eligible activities for planning, management and education, and the types of natural riverine ecosystems that are eligible for funding, and allows the department to approve river management plan recommendations for funding under s. 281.70, Stats. This order implements s. 23.22 (2) (c), Stats., which directs the department to promulgate rules to establish a procedure to award cost-sharing grants to control invasive species. The rule establishes the criteria for determining eligible projects and eligible public and private grant recipients, allowing cash and non-cash contributions as eligible cost share, and considers the recommendations of the Invasive Species Council. 4. Related Statutes or Rules:
Section 281.68 (3), Stats., directs the department to develop rules to administer a lake management planning grant and contract program to provide information and education on the use of lakes and lake ecosystems, water and ecosystem quality, water quality assessment, and to support the development of plans to prevent pollution and protect and improve lakes. Section 281.69 (3), Stats., directs the department to develop rules for a lake management grant program that will improve or protect lakes and lake ecosystems, classify lakes by use, and implement protection activities for the lakes based on their classification. Section 281.70 (2), Stats., directs the department to develop rules for a river protection grant program to provide grants for planning and management projects to protect or improve the ways rivers are used, the quality of water in rivers and riverine ecosystems, and/or the fish populations, aquatic life or fish habitat in rivers. Section 23.22 (2) (c), Stats., directs the department to develop rules for a grant program to control invasive species that specifically includes education and inspection activities at boat landings. Section NR 103.03, Wis. Adm. Code, connects the quality of waters of the state with wetlands. This rule outlines the set of water quality related functional values or uses of wetlands that shall be protected in the interest of protecting, preserving, restoring and enhancing water quality. Functional values include discharge of groundwater to a wetland, recharge of groundwater through a wetland, storm and flood water storage, hydrologic functions, filtration or storage of sediments, nutrients and toxic sediments, shoreline protection, habitat, and scientific and natural scenic beauty. Section NR 1.95 (3) (b), Wis. Adm. Code, identifies wetland values as complex, and breaks them into several categories, including ‘biological functions’ related to habitat, biodiversity, breeding, and feeding, ‘watershed functions’ related to physio-chemical functions like maintenance of hydrologic patterns and physio-chemical processes necessary for ecosystem stability, and ‘recreational, cultural and economic values’ related directly to activities like hunting, canoeing, culture and directly and indirectly related to water quality, habitat provision, culture and economics. Chapter NR 115, Wis. Adm. Code, outlines Wisconsin’s shoreland protection program, where shoreland subdivision and zoning regulations are required to “further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses; and reserve shore cover and natural beauty.” Chapter NR 115, Wis. Adm. Code, outlines Wisconsin’s shoreland protection program, where shoreland subdivision and zoning regulations are required to “further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses; and reserve shore cover and natural beauty.” Section 59.692, Stats., requires counties to effect the purposes of s. 281.31, Stats., and to promote the public health, safety and general welfare by adopting zoning regulations for the protection of all shorelands in unincorporated areas that meet shoreland zoning standards promulgated by the department. Sections NR 1.91 (4) and 1.91 (6), Wis. Adm. Code, outline public boating access standards and alternative public boating access standards for resource enhancement services. Resource enhancement services require that the public be provided with reasonable public boating access, stipulating that the department may provide protection services for pollution abatement or prevention and natural resources protection even if public access is not available. Section NR 50.05, Wis. Adm. Code, details the administration of outdoor recreation program grants and state aids, including s. NR 50.05(8), stating that the acquisition of real property shall be in accordance with state and federal guidelines for preparation of appraisals and relocation assistance. Chapter NR 149, Wis. Adm. Code, outlines the requirements for the administration of the laboratory certification program by the department. The rule created by this order requires laboratory work be conducted by a state-certified laboratory. Chapters NR 153 and 154, Wis. Adm. Code, identify grant programs, best management practices, eligibility and cost-share procedures for lake, river and watershed projects addressing non-point source pollution. General provisions and administrative procedures are similar to the procedures specified in the rules repealed by this order, chs. NR 190, 191, 192, 195, and 198, Wis. Adm. Code. The creation of ch. NR 193, Wis. Adm. Code, will allow the department to streamline procedures and align policies to unite the existing subprograms and provide consistency in guidance and administration.
5. Plain Language Analysis:
The surface water grant program provides financial assistance to eligible recipients to improve and protect water quality and the quality of lake and river ecosystems, and to prevent and control aquatic invasive species. The grant program has evolved incrementally over 26 years and is currently governed by five separate but related administrative rules and two state statutes. Annually, the surface water grant program provides over $6 million dollars to lake and river groups, other nonprofit organizations, and local units of government. Funding comes from the Water Resources Account of the Conservation Fund (motor boat gas tax revenues). The Bureaus of Water Quality and Community Financial Assistance propose to repeal the five related rules that govern the surface water grant program and recreate one consolidated rule chapter.
The proposed ch. NR 193 will unite the program under a consistent set of procedures and policies, improving customer service and satisfaction and administrative consistency and efficiency. The proposed rule will also update the program to employ contemporary management practices, enhance project performance and grantee accountability, and ultimately support better and more cost-effective environmental outcomes that serve local needs and advance department management objectives for state surface water. Grants and contracts under existing administrative codes provide state cost-sharing assistance to nonprofit organizations and governmental units for two primary activities: (1) Planning projects to help communities understand the condition of aquatic ecosystems and watersheds, collect data, conduct studies, and develop management plans, and (2) Management projects to protect and improve water quality and aquatic habitat and prevent and control aquatic invasive species.
Annually, around 40% of the available funding is allocated to planning activities on lakes, rivers and for aquatic invasive species, while around 60% is dedicated to management. Under the current planning program, awards for aquatic invasive species range to $150,000 per project, lake planning projects may be awarded up to $25,000 per project ($100,000 per lake), river planning projects are capped at $10,000, and county lake classification projects are awarded up to $50,000. Under the current program for management, aquatic invasive species control projects and lake management plan implementation projects are eligible to request up to $200,000. Shoreline and wetland restoration projects are eligible for up to $100,000. River management projects may be awarded up to $50,000. The Healthy Lakes program awards $1,000 per best management practice installed, not to exceed $25,000 per project. Land acquisition grants may be requested for up to $50,000 for rivers and $200,000 for lakes. Appropriations for all three grant programs come from the Water Resources Account of the Conservation Fund (funded by motor boat gas tax revenues). The proposed consolidated rule will be the first fully comprehensive review and update of these rules.
