Lastly, the proposed revisions update the provisions for economic hardship determinations to be consistent with 2011 revisions to NR 153, and adjusts optional flat reimbursement rates rates for some agricultural BMPs to reflect current data on actual BMP costs.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Section 319 Nonpoint Source Management programs - The objective of the federal Clean Water Act (“CWA”), 33 U.S.C § 1251 et. Seq., is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. As part of achieving this objective, Section 319 of the CWA (33 U.S.C. § 1329) directs states to develop a management program to for controlling pollution from nonpoint sources to navigable waterways that identifies best management practices to be undertaken to reduce pollution and financial assistance programs to achieve implementation of best management practices (See, 33 U.S.C § 1329(b)(1) and (b) (2) (A) & (B)). 33 U.S.C § 1329 (h) (1) requires the USEPA to make grants available to states for implementing such a nonpoint pollution control program. 33 U.S. Code § 1329 (h) (3) limits federal grants to states to a maximum of 60 percent of the cost incurred by the state. Federal rules do not explicitly identify BMPs or specify cost share rates which states may use for implementing their financial assistance programs. In Wisconsin, Chapter 154 establishes the BMPs which are eligible for cost-share grants. Environmental Quality Incentives Program (“EQIP”) – EQIP provides technical and financial assistance to facilitate the adoption of agricultural conservation practices that address natural resource concerns, including conservation practices that reduce the flow of pollutants from fields. 16 U.S. Code 3839aa-2 allows for payments to agricultural producers that enter into contacts to implement conservation practices for up to 75 percent of the costs associated with planning, design, materials, equipment, installation, labor, management, maintenance, or training; 100 percent of income foregone by the producer; and in such the cases where both of these apply, the sum of these two amounts.
7. Comparison with Similar Rules in Adjacent States:
Chapter NR 154, Wis. Admin. Code, identifies the agricultural and urban best management practices (BMPs) that are eligible for cost-share under Wisconsin’s runoff management grant programs, and identifies eligible grantees, and cost share rates and conditions for such financial assitance. Overall, rules in Illinois, Iowa, Michigan and Minnesota do not provide as much specificity as NR 154, and administer similar programs wholly or in part via guidance not promulgated rule or law. Iowa is the state most similar to Wisconsin in that it is the only other of the four states that identifies BMPs eligible for cost-sharing by rule. However, unlike Wisconsin, Iowa only identifies agricultural BMPs eligible for cost-sharing by rule, and identifies eligible urban BMPs in guidance. Cost share rates in these four neighboring states range from 50 to 75 percent, so at 70 percent Wisconsin is within this range. Specific details of similarities and differences between NR 154 and rules for similar grant programs in Illinois, Iowa, Michigan and Minnesota are summarized below. Illinois - Illinois does not implement its Section 319 grant program (or any other financial assistance program for controlling nonpoint source pollution) by rule and so does have any rules similar to NR 154. The Illinois EPA has statutory authority to “accept, receive, and administer on behalf of the State any grants, gifts, loans, indirect cost reimbursements, or other funds made available to the State from any source for purposes of the Act or for air or water pollution control, public water supply, solid waste disposal, noise abatement, or other environmental protection activities, surveys, or programs.” 415 Ill. Comp. Stat. 5/4(k). The Illinois Nonpoint Source grant program follows USEPA’s 319 guidance documents and grant regulations (40 CFR parts 31 and 35). According to Illinois guidance (which is based on USEPA guidance) eligible applicants and grantees are broader than Wisconsin’s. In Illinois grant funds are available to any entity that has legal status to accept funds from the state of Illinois and the authority and ability to implement or subcontract the proposed project, whereas Wisconsin only awards TRM, UNPS, and NOD grants to governmental units. Illinois offers cost sharing for up to 60% of total eligible project costs, whereas Wisconsin cost shares up to 70% of total eligible BMP cost. and requires that BMPs be certified by a Professional Engineer (PE) and reviewed and approved by the Illinois EPA Project Manager.
Iowa -The Iowa Department of Agriculture and Land Stewardship (“IDALS”) administers two cost-sharing financial assistance programs – the Iowa Financial Incentive Program for Soil Erosion Control, and the Water Protection Fund. Cost share rates and eligible best management practices for these two programs are established in Iowa Admin. Code Section 27 Chapters 10 and 12, respectively. - Iowa Financial Incentive Program for Soil Erosion Control - Whereas Wisconsin cost-shares up to 70 percent of the cost of eligible practices, Iowa Admin. Code 27-10.41(1) allows cost share up to 50 percent of the approved cost of permanent soils and water conservation practices that control erosion. Iowa Admin. Code 27-10.41(4) allows cost share up to 60 percent of the cost of such practices if they are part of special watershed project. Wisconsin allocates funds to counties, who in turn enter into cost-share agreements with land owners. In a similar manner, Iowa Admin. Code 27-10.50(161A), directs IDALS to allocate its soil erosion control program funds to soil and water conservation districts, who then subsequently enter into cost-share agreements with individual landowners to implement practices. Similar to Wisconsin’s optional flat rates for cropping practices at Wis. Admin Code NR 154.03, Iowa Admin. Code 27-10.60 (1) c., allows flat rate payments to landowners for implementing cropping practices including no-till, ridge-till, strip-till, contour farming, strip-cropping and cover crops. Like Wisconsin, Iowa agricultural best management practices eligible for cost-sharing are provided by rule; specifically, Iowa Admin. Code 27-10.82(1) identifies eligible residue and management practices; Iowa Admin. Code 27-10.82(2) identifies eligible temporary practices; and Iowa Admin. Code 27-10.82(3) identifies eligible permanent practices. Like Wisconsin, Iowa Admin. Code 27-84. (161A) references NRCS Conservation Technical Field guide for agricultural conservation practices technical standards.
- Iowa Water Protection Fund - Whereas Wisconsin allows cost-shares for up to 70 percent of the cost of eligible practices, Iowa Admin. Code 27-12.77 (1) allows cost share up to 50 of the eligible or estimated cost, whichever is less for practices cost-shared under the Iowa Water Protection fund. Similar to how Wisconsin allocates funds to counties, who in turn enter into cost-share agreements with land owners, Iowa Admin. Code 27-12.51(161C) directs IDALS to allocate funds for this program to its soil and water conservation districts who subsequently enter into cost-share agreements with individual landowners to implement practices. Iowa Admin. Code 27-15.60 (161C). Like Wisconsin, Iowa agricultural best management practices eligible for cost-sharing are specified by rule; specifically, Iowa Adm. Code 27-12.72 (161C) and Iowa Adm. Code 27.12.73 (161C), respectively, identify agricultural practices eligible for cost-sharing and define the categories of urban storm water best management practices eligible for cost-sharing. However, for urban practice technical standards, grantees are required to follow the Iowa Stormwater Management Manual. In addition to its IDALS programs, Iowa also administers a Section 319 grant program. Like Illinois, Iowa’s 319 Program relies on federal EPA rules, guidance and grant agreement conditions to establish requirements for BMPs, technical standards and funding requirements.
Michigan – Michigan’s regulates its Section 319 program under Mich. Admin. Code r. 324.8801-8810 The Michigan rule is broader in scope than NR 154, encompassing grant program and process components found in NR 153, NR 154, and 155. In regards to cost-share rates and eligible best management practices, Michigan’s rules do not provide as much detail as NR 154. Notable similarities and differences between the two are described below.
- MR 324.8805: Michigan’s eligible applicants and grantees are broader than Wisconsin’s. Michigan provides grants to local units of government and not-for-profit entities. Wisconsin only provides TRM, UNPS or NOD grants to governmental units.
- MR 324.8809: Michigan cost shares up to 75% of total eligible BMP cost (grantee share no less than 25%). Wisconsin cost shares up to 70% of total eligible BMP cost.
- MR 324.8809: There are no economic hardship provisions in Michigan’s rules, as there are in NR 154.03(3) for TRM grantees.
- Michigan uses Michigan Department of Environmental Quality (“MDEQ”) guidance rather than rule to establish eligible BMPs. Wisconsin establishes eligible BMPs by rule in NR 154.04. MDEQ has developed the Michigan’s Nonpoint Source Program Plan which identifies MDEQ manuals it uses for establishing eligibility of BMPs (See, https://www.michigan.gov/documents/deq/wrd-nps-program-plan-2015_511849_7.pdf). This program plan is a Section 319 Grant requirement and equivalent to Wisconsin’s Nonpoint Source Program Management Plan (https://dnr.wi.gov/topic/Nonpoint/documents/NPSProgramManagementPlan20162020.pdf). The Michigan’s Nonpoint Source Program Plan references NRCS’s Field Office Technical Guide for agricultural BMPs and the MDEQ Best Management Practice Manual for urban BMPs. Minnesota – Minnesota’s Section 319 grants are governed by Minn. Stat. §§ 103.F701 – 103F.755 and Minn. R. 7076. Minn. Stat. 103F.725 subdivision 1. and Minn. R. 7076.0120 s§subpart 1 both specify that their agency may award grants for up to 50 percent of the eligible cost for projects, whereas Wisconsin cost shares up to 70% of total eligible BMP cost. Minn Stats.103F.731 Subd. 2. and Minn. R. 7076.0130. s§subpart 1. state that, like Wisconsin, only local units of government in Minnesota are eligible to apply for financial assistance. Minnesota Pollution Control Agency identifies and recommends urban BMP in their storm water manual but does not identify eligible practices in their rules.
For agricultural practices, Minn R. 8400.0600 directs the state Soil and Water Resource Board allocate cost-share funds to district boards that have fully complied with Minnesota Statutes, all erosion control and water management program rules, and all program policies. Minn. R. 8400.0500 gives the state Soil and Water Resource Board the authority to establish the maximum percent or amount of the total cost of a conservation practice that may be funded using state cost-share funds. Minnesota does not identify eligible agricultural BMPs in their rules, but instead relies on credentialed Technical Assistance Providers to oversee practice selection and their Grants Administration Manual which has a chapter covering technical standards.
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 154, 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 the economic impact of these proposed rule changes. 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):
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 and urban businesses and residents. The proposed rule changes will provide consistency and clarity for the eligibility criteria for cost sharable urban BMPs which may be required to meet state urban storm water performance standards.
- Agricultural crop and livestock producers. The proposed rule changes will make ch. NR 154, Wis. Adm. Code consistent with recent changes promulgated at ch. ATCP 50, Wis. Adm. Code. - Private consulting firms. The proposed rule changes will provide consistency and clarity for the eligibility criteria and technical standards for cost sharable urban BMPs which may be required to meet state urban storm water performance standards.
Ch. NR 154, Wis. Adm. Code has a positive fiscal impact for local governments and agricultural crop and livestock producers while having minimal fiscal impact to the state. 11. Agency Contact Person:
Ann Hirekatur
Wisconsin Department of Natural Resources
Bureau of Watershed Management, WT/3
101 S. Webster St.
P.O. Box 7921
Madison, WI 53707-7921
608/266-0156
12. Place where comments were submitted and deadline for submission:
Written comments were submitted to the contact information listed above.
A public hearing was held on February 13, 2019, and the comment submission deadline was February 15, 2019.
The consent of the Attorney General will be requested for the incorporation by reference of
the following Wisconsin Department of Natural Resources Conservation Practice Standards:
- 1002 site evaluation for storm water infiltration (September 2017).
- 1003 infiltration basin (October 2004);
- 1004 bioretention for infiltration (October 2014);
- 1005 vegetated swale (December 2017);
- 1006 Proprietary storm water sedimentation devices (April 2009);
- 1007 infiltration trench (May 2012); and
- 1008 permeable pavement (February 2016).
Section 1 NR 154.01 (2) is amended to read:
NR 154.01 (2) The provisions of this chapter apply to cost-share agreements and grants signed after October1, 2002, [insert effective date of revised rule], unless a waiver is granted by the department under s. 281.65 (4) (e), Stats. Section 2 NR 154.02 (15) (note) is amended to read:
