Chapter NR 153

NR 153.21(5)(h)1. 1. The availability of funds to complete the grant award.

NR 153.21 Note Note: Large-scale projects may require funds from more than one state budget. In such cases, the department must await subsequent budgets before completing the grant awards for on-going projects.

NR 153.21(5)(h)2. 2. Project performance. The department may terminate the grant if sufficient progress has not been made. Factors to be included in considering project performance include commitment of cost share resources, installation of best management practices, and reduction in nonpoint source pollutant loads.

NR 153.21 Note Note: Cost-share resources are committed by signing cost share agreements, issuing offers of cost share under ss. NR 151.09 and 151.095, and making reimbursements for installed practices. Pollutant load reduction can be credited for installed best management practices regardless of whether the practice installation is cost shared using state funds as may have been originally intended.

NR 153.21 History History: CR 00-025: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: r. and recr. Register December 2010 No. 660, eff. 1-1-11.

NR 153.22 NR 153.22 Cost-share agreement.

NR 153.22(1) (1) Purpose of agreement.

NR 153.22(1)(a) (a) The cost-share agreement is an agreement listing the best management practices and establishing the conditions and considerations under which a cost-share recipient agrees to install the practices listed. The cost-share agreement may be used as an offer of cost sharing in accordance with ss. NR 151.09, 151.095, and 243.24 (4) (b) 4.

NR 153.22(1)(b) (b) A local governmental unit shall use the cost-share agreement if serving as a cost-share provider to a landowner, land operator, or state agency.

NR 153.22(1)(c) (c) The department may use the runoff management grant agreement in lieu of a cost-share agreement if it serves as a grantor of funds to a governmental unit or state agency and the grant recipient uses the funds to implement management practices on lands it owns or operates. Runoff management grant agreements used in lieu of cost-share agreements shall comply with the requirements in this section as well as those in s. NR 153.21.

NR 153.22(1)(d) (d) For best management practices to be eligible for cost sharing, the cost-share agreement shall be signed by the cost-share provider and cost-share recipient before best management practice installation is initiated.

NR 153.22(2) (2) Parties to the agreement.

NR 153.22(2)(a) (a) The cost-share agreement shall be between the governmental unit and the individual landowner, land operator or state agency. Agreements with land operators shall be co-signed by the landowner except in instances where the cost-share agreement contains no other practices than those enumerated in sub. (6) (b) 1. If other practices are included in a cost-share agreement amendment, the landowner shall co-sign the amendment.

NR 153.22(2)(b) (b) Governmental units, as cost-share agreement providers, shall enter into cost-share agreements only during the period specified in the runoff management grant agreement.

NR 153.22(2)(c) (c) The cost-share agreement applies to all contiguous sites under the same ownership. At the discretion of the governmental unit, the cost-share agreement may also apply to noncontiguous sites under the same ownership or operation in the watershed. In this paragraph, “contiguous” means touching or sharing a common boundary with a second parcel of land. A lake, river, stream, road, railroad or utility right of way that separates any part of the parcel from any other part does not render the parcel of land noncontiguous.

NR 153.22(2)(d) (d) A cost-share agreement may not be signed with an individual whose name appears on the statewide support lien docket under s. 49.854 (2) (b), Stats., unless the individual submits to the provider a payment agreement that has been approved by the county child support agency under s. 59.53 (5), Stats., and that is consistent with rules promulgated under s. 49.858 (2) (a), Stats.

NR 153.22(3) (3) Content of the agreement. The cost-share agreement shall contain or describe:

NR 153.22(3)(a) (a) The name and address of the cost-share recipient.

NR 153.22(3)(b) (b) The best management practices to be applied and the cost-share rates for those practices that are to be cost shared. The cost-share agreement shall require that all best management practices listed on the cost-share agreement be implemented and maintained as a condition of the agreement.

NR 153.22(3)(c) (c) The estimated total practice cost, cost-share rate and estimated cost-share amount.

NR 153.22(3)(d) (d) The installation schedule for applying the cost-shared practices. The cost-share agreement shall also require that the cost-share recipient comply with state performance standards and prohibitions for existing cropland practices and livestock facilities that do not require cost sharing under s. NR 151.09 or 151.095. The cost-share provider may limit this requirement to significant pollution sources with prior approval from the department.

NR 153.22(3)(e) (e) A statement of maintenance requirements.

NR 153.22(3)(f) (f) A prohibition against adopting any land use or practice which defeats the purposes of the best management practices, the cost-share agreement, or the runoff management grant agreement. This includes a prohibition against any change in land use or management of a cropland practice or livestock facility that leads to non-compliance with state performance standards and prohibitions for a parcel where continuing compliance with a state standard or prohibition is required under s. NR 151.09 (3) (b) or 151.095 (4) (b). This also requires meeting performance standards and prohibitions, without regard to cost sharing, for all new cropland practices and livestock facilities. If such a change in land use or management occurs, the landowner or land operator shall control the source at the landowner or land operator’s own expense or return any cost-sharing funds awarded through the cost-share agreement to the provider.

NR 153.22(3)(g) (g) A provision stating that the governmental unit shall provide appropriate technical assistance during the required operation and maintenance period of the best management practices.

NR 153.22(3)(h) (h) A stipulation that the cost-share recipient may not discriminate against a contractor on the basis of age, sex, religion or other prohibited factor.

NR 153.22(3)(i) (i) A provision describing the procedure for amendment.

NR 153.22(3)(j) (j) The location of the land on which the cost-shared practice is to be installed, and a specific legal description of the land if recording of the cost-share agreement is required under sub. (10).

NR 153.22(3)(L) (L) A requirement to amend the cost-share agreement if practices are added or deleted and to add or delete practices only if they are consistent with the project grant application.

NR 153.22(3)(m) (m) A statement that any loss of cost sharing that results from a cost-share recipient’s failure to abide by the conditions of the cost-share agreement does not void the notice issued under s. NR 151.09, 151.095, or 243.24.

NR 153.22(3)(n) (n) A statement that partial or full release from the cost-share agreement in accordance with this section does not void the notice issued under s. NR 151.09, 151.095, or 243.24.

NR 153.22 Note Note: Compliance with conditions in a cost-share agreement does not assure compliance with performance standards under ch. NR 151. For example, the operation and maintenance period for purposes of cost sharing is 10 years for most practices. However, best management practices must be maintained in perpetuity to comply with performance standards under ch. NR 151. Under ch. NR 151, cost sharing must only be made available once to bring a specific nonpoint source into compliance with the performance standard. Continued cost sharing is not required to be made available and long-term compliance with performance standards is the responsibility of the landowner or operator, heirs or subsequent owners or operators. Chapters NR 151 and ATCP 50 identify when cost sharing is considered to be available for purposes of required compliance with performance standards.

NR 153.22(3)(o) (o) A statement that the cost-share recipient agrees to provide information related to cost sharing and work performed under other federal, state, and local grant programs, if required by the cost share provider to meet the reporting requirements of this chapter.

NR 153.22(3)(p) (p) The cost-share recipient shall allow the governmental unit to conduct an inventory of the entire farm for compliance with state performance standards and prohibitions as a condition of cost-share eligibility.

NR 153.22(4) (4) Department approval. The governmental unit shall obtain prior department approval when the total cost-share agreement amount, including amendments, exceeds $50,000 in state share. The department shall consider the cost-effectiveness of the best management practices and eligibility for cost sharing under this chapter in making its decision whether to grant approval.

NR 153.22(5) (5) Submittal to department. Unless required otherwise under sub. (4), the cost-share agreement provider shall submit a copy of the cost-share agreement and amendments to the department within 30 days of execution. The department may deny reimbursement to the governmental unit for costs associated with the installation of a best management practice not in conformance with the cost-share agreement, the runoff management grant agreement or the project grant application.

NR 153.22(6) (6) Agreement period. The cost-share agreement period shall be the period from the cost-share agreement signing to the end of the operation and maintenance period.

NR 153.22(6)(a) (a) The period during which practices in a signed cost-share agreement may be installed may not extend beyond the period of the runoff management grant agreement for the project.

NR 153.22(6)(b) (b) For purposes of complying with the cost-share agreement, the operation and maintenance period for a best management practice begins when the best management practice installation is complete and ends after the required operation and maintenance period has expired. The operation and maintenance period for each cost-shared and not cost-shared best management practice shall last for a minimum of 10 years except that the operation and maintenance period shall last for a minimum of 15 years if a payment is made under s. NR 154.03 (1) (i) 3.

NR 153.22(6)(b)1. 1. Except if required as a component of another practice, the following practices are required under the cost-share agreement to meet the maintenance requirement only during the years for which cost sharing is received:

NR 153.22(6)(b)1.a. a. High residue management systems.

NR 153.22(6)(b)1.b. b. Nutrient management.

NR 153.22(6)(b)1.c. c. Pesticide management.

NR 153.22(6)(b)1.d. d. Cropland protection cover or green manure.

NR 153.22(6)(b)2. 2. If a practice in subd. 1. is required as a component of another practice in ch. NR 154, the operation and maintenance period for the component practice shall be the same as the operation and maintenance period for the practice for which it is required.

NR 153.22 Note Note: Cost-share agreement operation and maintenance periods are conditions of cost-sharing. Violation of operation and maintenance requirements of cost-share agreements may result in recovery of cost-share payments received by the cost-share recipient. There is a separate requirement under ch. NR 151 that once a cropland practice or livestock facility is brought into compliance with performance standards and prohibitions, compliance must be maintained in perpetuity.

NR 153.22(7) (7) Failure to fulfill agreement. If the cost-share recipient fails to fulfill any terms of the cost-share agreement, including failing to install, operate, and properly maintain the practices of the agreement, cost-shared funds received by the cost-share recipient shall be repaid to the governmental unit which is the provider of the agreement. The provider shall forward the repayment to the department.

NR 153.22 Note Note: Under s. NR 153.22 (3) (m), loss of cost sharing that results from failure to fulfill the agreement does not void the notice issued under s. NR 151.09, 151.095, or 243.24.

NR 153.22(8) (8) Ineffective practices.

NR 153.22(8)(a) (a) If the practice becomes ineffective either during the grant period of the runoff management grant agreement or during the operation and maintenance period for the project, and the reason for the practice becoming ineffective is beyond the control of the cost-share recipient, the department may award a new grant agreement or amend and extend the existing runoff management grant agreement to cost share the replacement of the practice.

NR 153.22(8)(b) (b) An appropriate operation and maintenance period for the replacement practice shall be identified in the cost-share agreement.

NR 153.22(9) (9) Change in ownership. If a change in ownership occurs during the cost-share agreement period or during the operation and maintenance period of a practice, the new landowner shall be responsible for fulfilling all conditions of the cost-share agreement. Upon receiving written approval from the respective local governmental unit, the new landowner may implement alternative approved best management practices provided that an equal or greater level of pollution control is achieved.

NR 153.22(10) (10) Recording of cost-share agreements with register of deeds.

NR 153.22(10)(a) (a) The governmental unit shall record the cost-share agreement and its amendments in the office of the register of deeds for each county in which the property is located if the cost-share agreement includes a riparian buffer, or payments under s. NR 154.03 (1) (i) 3., or if the total cost-share agreement amount exceeds the following:

NR 153.22(10)(a)1. 1. $10,000 prior to January 1, 2005.

NR 153.22(10)(a)2. 2. $12,000 after December 31, 2004 and prior to January 1, 2010.

NR 153.22(10)(a)3. 3. $14,000 after December 31, 2009.

NR 153.22(10)(b) (b) The governmental unit shall record these documents prior to making reimbursements to the landowner or land operator.

NR 153.22(10)(c) (c) A cost-share agreement may be exempt from the recording requirement if the cost-share agreement contains no other practices than the following:

NR 153.22(10)(c)1. 1. Contour farming.

NR 153.22(10)(c)2. 2. Contour and field strip-cropping.

NR 153.22(10)(c)3. 3. Cropland protection cover or green manure.

NR 153.22(10)(c)4. 4. High residue management.

NR 153.22(10)(c)5. 5. Nutrient management.

NR 153.22(10)(c)6. 6. Pesticide management.

NR 153.22(11) (11) Release of property from obligations of cost-share agreements. At the request of the cost-share recipient, a governmental unit may fully or partially release a property from the obligations of the cost-share agreement provided that the governmental unit has determined that the best management practices installed on the property will be maintained or replaced with practices which will not increase the pollutant loading to surface water or groundwater counter to the water resource objectives of the grant application. If state dollars in excess of the amounts enumerated under sub. (10) (a) have been expended for best management practices that are located on the property to be released, the governmental unit shall obtain written approval from the department before releasing the property from the obligations of the cost-share agreement. The release form shall be obtained from the department and filed with the cost-share agreement.

NR 153.22 Note Note: Forms can be obtained from the department’s Bureau of Watershed Management or the department’s Bureau of Community Financial Assistance, 101 S. Webster St., PO Box 7921, Madison, WI 53707-7921.

NR 153.22 Note Note: Under s. NR 153.22 (3) (n), any release granted under this subsection does not void the notice issued under s. NR 151.09, 151.095, or 243.24.

NR 153.22(12) (12) Satisfaction of cost-share agreements. At the request of the cost-share recipient, the governmental unit may issue a certificate of satisfaction provided the governmental unit has determined that the cost-share recipient has met all of the obligations of the cost-share agreement, including the operation and maintenance period. The satisfaction shall be documented on a form provided by the department and filed with the cost-share agreement. For cost-share agreements recorded with the register of deeds under sub. (10), the satisfaction form shall be recorded in the office of the register of deeds for each county in which the property is located.

NR 153.22 Note Note: Forms can be obtained from the department’s Bureau of Watershed Management or the department’s Bureau of Community Financial Assistance, 101 S. Webster St., PO Box 7921, Madison, WI 53707-7921.

NR 153.22 History History: CR 00-025: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: am. (1) (a), (3) (d), (f), (j), (m), (n), (6) (b) 1. (intro.), (7), (8) (a), (9), (11), r. (3) (k), cr. (3) (o), (p), (12) Register December 2010 No. 660, eff.1-1-11.

NR 153.23 NR 153.23 Cost containment.

NR 153.23(1) (1) Governmental units as providers of cost-share agreements shall identify and agree to use one or more of the following cost containment procedures for each best management practice identified in the runoff management grant agreement.

NR 153.23(1)(a) (a) Average cost. Based on past cost information, a governmental unit determines an average cost per unit of materials and labor for the installation of a best management practice which may not be exceeded. A governmental unit may use its own experience, or information obtained from the department or other sources, to estimate typical costs.

NR 153.23(1)(b) (b) Range of costs. Based on past cost information, a governmental unit establishes a cost range for the installation of a best management practice. Eligible costs may not exceed the maximum cost of the range. A governmental unit may use its own experience, or information obtained from the department or other sources, to estimate typical costs.

NR 153.23(1)(c) (c) Competitive bidding. A governmental unit requires the landowner or land operator to request bids from contractors for the installation of a best management practice. The cost-share payment shall be calculated based on the lowest bid meeting acceptable qualifications. The governmental unit shall identify criteria for determining acceptable qualifications. The landowner or land operator may select a qualified contractor other than the low qualified bidder, but shall contribute 100% of the difference between the bids.

NR 153.23(1)(d) (d) Maximum cost-share limit. A governmental unit or the department establishes a maximum cost-share rate limit not to exceed the rates specified in ch. NR 154 for installation of a best management practice.

NR 153.23(1)(e) (e) Force account. A governmental unit hires or assigns its employees to install a best management practice for landowners and land operators if the employees are able to perform the work at a cost lower than the private sector.

NR 153.23(1)(g) (g) Other cost containment procedures. If a governmental unit determines another cost containment procedure would be at least as or more effective than the cost containment procedures described in this subsection, it shall include the alternative in the project application and the department shall include the alternative in the runoff management grant agreement.

NR 153.23(2) (2) The cost-containment procedures in this section shall be used to control the cost of in-kind contributions, including the substantiated value of donated materials, equipment, services and labor by landowners or land operators installing best management practices:

NR 153.23(2)(a) (a) All sources of local share donation shall be indicated in the project application submitted under s. NR 153.17.

NR 153.23(2)(b) (b) The maximum value of donated labor may not exceed the prevailing local market wage for equivalent work.

NR 153.23(2)(c) (c) The value of donated equipment may not exceed the equipment rates for highways established by the Wisconsin department of transportation.

NR 153.23 Note Note: The county highway rates for equipment are formulated under s. 84.07, Stats., and can be found in chapter 5 of the State Highway Maintenance Manual published by the Wisconsin Department of Transportation, 4802 Sheboygan Avenue, Madison, WI 53705.

NR 153.23(2)(d) (d) The value of donated materials and services may not exceed market rates and shall be established by invoice.

NR 153.23 History History: CR 00-025: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: am. (1) (e) (title), r. (1) (f) Register December 2010 No.660, eff. 1-1-11.

NR 153.25 NR 153.25 Property acquisition.

NR 153.25(1) (1) Eligible activities. The department may provide funding to a governmental unit holding a runoff management grant agreement under s. NR 153.21 for any of the following:

NR 153.25(1)(a) (a) Acquire land in fee or an easement identified in the grant application for the construction of a structural urban best management practice.

NR 153.25(1)(b) (b) Acquire land in fee or an easement identified in the grant application for land which is contributing or will contribute nonpoint source pollution. This includes property acquisition to support best management practices such as critical area stabilization, riparian buffers, wetland restoration and the abandonment or relocation of livestock and livestock facilities.