Chapter NR 162

NR 162.23(1)(c)2. 2. The amount of market rate project costs in par. (b) 1. to 4. is calculated as follows:

EM = (TP)(1–PC)

Where:

EM . . . is the amount of project costs eligible for market rate financing only.

TP . . . is the total project cost eligible for CWFP financing.

PC . . . is the parallel cost percentage expressed as a decimal.

NR 162.23(1)(c)3. 3. If the department determines that the project includes other market rate costs as described in par. (b) 5., the amount of those costs shall be subtracted from the amount eligible for below–market rate financing and added to the amount of market rate costs calculated in subd. 2.

NR 162.23 Note Note: All questions relating to cost eligibility or allocation shall be resolved prior to the execution of the financial assistance agreement in accordance with s. NR 162.15.

NR 162.23(2) (2) Ineligible costs. Costs for items and activities not directly associated with or not necessary for the construction or startup of a scored project are not eligible for financial assistance unless specifically approved by the department as necessary and reasonable for the efficient operation or integrity of the overall storm water treatment works or BMP. Ineligible items and activities include all of the following:

NR 162.23(2)(a) (a) Allowances. Any allowance or contingency amounts built into a bid contract for nonspecific or ineligible items or activities.

NR 162.23(2)(b) (b) Basin planning. Basin or areawide planning not related to the scored project.

NR 162.23(2)(c) (c) BCPL ineligibles. For a project receiving interest rate subsidy under subch. IV, project costs determined to be ineligible for loan assistance from the BCPL.

NR 162.23(2)(d) (d) Bonus payments. Bonus payments not legally required for completion of construction before a contractual completion date.

NR 162.23(2)(e) (e) Buying capacity. Purchase cost of buying capacity in an existing storm water treatment works or BMP that is not being expanded.

NR 162.23(2)(f) (f) Conflict of interest. Costs incurred in a contract that creates a real or apparent conflict of interest. An apparent conflict of interest arises when an official or employee of a recipient participates in the selection, award, or administration of a contract supported by the CWFP and any of the following conditions exist:

NR 162.23(2)(f)1. 1. The official or employee or the official’s or employee’s spouse has an ownership interest in the firm selected for the contract.

NR 162.23(2)(f)2. 2. Any person identified in subd. 1. receives any contract, gratuity, or favor from the award of the contract.

NR 162.23(2)(g) (g) Engineering. Engineering costs relatable to ineligible construction costs when the ineligible construction and equipment costs are more than 10 percent of total construction and equipment costs.

NR 162.23(2)(h) (h) Grant administration. Any costs for administering or applying for funding from sources other than the CWFP, such as U.S. department of agriculture’s rural development programs, a community development block grant program, federal state and tribal assistance grants, U.S. army corps of engineers, focus on energy, or other non-CWFP federal or state government loan or grant programs, or other types of financial assistance programs.

NR 162.23(2)(i) (i) Hookup charges. Hookup charges imposed by one municipality on another for hooking into a storm water treatment works or BMP, or transport system to such a facility, unless the charges are based on identifiable capital improvement costs incurred by the municipality imposing the charge, and are included in an intermunicipal agreement meeting the requirements of s. NR 162.05 (4) (h).

NR 162.23(2)(j) (j) Interim financing. Interest or principal payments on interim debt paid by the municipality out of its internal funds rather than capitalized funds.

NR 162.23 Note Note: The ineligibility of interest or principal payments in par. (j) is based on U.S. treasury reimbursement regulations 26 CFR 1.150-2.

NR 162.23(2)(k) (k) Late fees. Interest or late fees charged to a municipality for delayed payments related to the project.

NR 162.23(2)(L) (L) Leases. Costs related to leasing land.

NR 162.23(2)(m) (m) Mismanagement and litigation. Costs of claims against the recipient resulting from mismanagement or caused by the recipient’s vicarious liability for the improper action of others, and costs resulting from litigation of contract disputes, liquidated damages, appeals, and other related disputes.

NR 162.23(2)(n) (n) Negligence. Costs incurred due to negligence or error of a party contracted by the municipality.

NR 162.23(2)(o) (o) No construction. All costs of a project if the municipality does not finance some construction costs through the CWFP, unless another governmental agency or another program in the department is providing financing for the construction costs and department CWFP staff receive acceptable documentation of the other agency’s or other program’s commitment.

NR 162.23(2)(p) (p) Operations and maintenance. Operations and maintenance expenses as defined in s. NR 162.003 (50) and (40), respectively.

NR 162.23(2)(q) (q) Ordinary municipal operating expenses. Ordinary operating expenses of a municipality, such as salaries and expenses of elected officials and on-staff attorneys, postage, utility bills, and annual financial audits.

NR 162.23(2)(r) (r) Other funding. Costs for which payment has been or will be received from another funding source, including costs for which funds from the U.S. department of agriculture’s rural development program or a community development block grant program are committed, or costs covered by a focus on energy grant. If the municipality does not receive the funds expected from the other source, the department may consider the costs of the work that was to be funded through the other source to be eligible for CWFP financial assistance unless the costs are considered ineligible under another paragraph in this subsection. This paragraph does not apply to a municipality receiving a loan from the BCPL for a scored project receiving interest subsidy under subch. IV.

NR 162.23(2)(s) (s) Outside of scope. Costs outside the scope of the scored project unless the department approves the costs as necessary to improve the overall integrity, operation, or functionality of the storm water treatment works or BMP.

NR 162.23(2)(t) (t) Personal injury. Personal injury compensation or damages arising out of the project, whether determined by adjudication, arbitration, negotiation, or otherwise.

NR 162.23(2)(u) (u) Post-closeout. Costs incurred after the project completion date of the scored project.

NR 162.23(2)(v) (v) Special districts. Costs of establishing special purpose districts or commissions, such as sanitary districts, utility districts, and joint commissions.

NR 162.23(2)(w) (w) Violation penalties. Fines and penalties due to violations of, or failure to comply with, federal, state, or local laws.

NR 162.23(2)(x) (x) Watermains. Watermain construction, replacement, or repair unless the watermain is needed to carry water to a part of the storm water treatment works or BMP or the watermain work is necessary as a direct result of work performed for a scored project, such as repairing or replacing a watermain damaged during construction of the scored project.

NR 162.23(2)(y) (y) WPDES permit fees. The cost of a WPDES permit unless it is a WPDES construction site permit specific to the project construction.

NR 162.23 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23; correction in (1) (a) 10. d., (c) 1. c. made under s. 35.17, Stats., Register October 2023 No. 814.

NR 162.24 NR 162.24 Application process.

NR 162.24(1) (1) Notice of intent to apply. The notice of intent requirements described in s. NR 162.05 (1) are applicable to any urban runoff or storm water project for which a municipality is applying for financial assistance under this subchapter or for interest rate subsidy under subch. IV.

NR 162.24(2) (2) Application procedures. A municipality shall apply for financial assistance in accordance with s. 281.58 (9), Stats. All applicants must submit the required information and documentation through the department’s online application system.

NR 162.24 Note Note: Directions regarding online submittal are available on the Environmental Improvement Fund website at https://dnr.wisconsin.gov/aid/EIF.html. An interest rate subsidy application is a different form and must be submitted in accordance with s. NR 162.40 (5) and (6).

NR 162.24(3) (3) Contents of application. The applicant shall submit a complete application, including all of the following items that are applicable to the project:

NR 162.24(3)(a) (a) Evidence of a department-approved plan applicable to the scored project.

NR 162.24(3)(b) (b) Construction plans and specifications submitted to the department in accordance with ch. NR 151 that are approvable under ch. 281, Stats. An applicant may be denied funding if the applicant does not provide appropriately complete plans and specifications to the department prior to or with the application. The applicant shall submit a copy of approvable plans and specifications with the application in addition to the plans and specifications submitted to the department for plan review under ch. NR 151.

NR 162.24(3)(c) (c) Completion of the required fields in and upload of required documentation to the department’s online application system, including all of the following:

NR 162.24(3)(c)1. 1. Provision of a clear, concise, and comprehensive project description, including any modifications to the project description previously provided in the online application systems.

NR 162.24(3)(c)2. 2. Estimated or actual construction costs.

NR 162.24(3)(c)3. 3. Identification of known ineligible costs included within the total budget provided in the online application.

NR 162.24(3)(c)4. 4. Information regarding assistance received or expected from another funding source.

NR 162.24 Note Note: The project description may already be included in the online application as it should transfer over to the application if previously provided with intent to apply or priority evaluation and ranking information. When that transfer of information is successful, the applicant must only provide information regarding any modifications to the project description that is already included in the application rather than providing an additional complete project description.

NR 162.24(3)(d) (d) Items or information for compliance with federal regulations identified by the department in the online application system as required for a complete application; these items may include any of the following:

NR 162.24(3)(d)1. 1. Documentation of compliance with wage rate laws.

NR 162.24(3)(d)2. 2. Completed federal forms.

NR 162.24(3)(d)3. 3. Information regarding green project components, cost and effectiveness of the project, or procuring American-made products for use in the project.

NR 162.24(3)(e) (e) Copies of executed engineering contracts and any associated contract amendments for planning and design if funds are requested for planning and design.

NR 162.24(3)(f) (f) A copy of the executed engineering contract and any associated contract amendments for construction management if funds are requested for construction management and the contract is available at the time of application submittal.

NR 162.24(3)(g) (g) A copy of each executed non-engineering professional services contract related to the project and any associated amendments if funds are requested in the application project budget for services included in the contract and the contract or amendment is available at the time of application submittal.

NR 162.24(3)(h) (h) A proposed or an executed intermunicipal agreement for each municipality served by the project when 2 or more municipalities utilize shared or interconnected treatment works or a BMP. Prior to receiving financial assistance, the applicant shall ensure that each required intermunicipal agreement shall do each of the following that is applicable to the project:

NR 162.24(3)(h)1. 1. Identify ownership for each individual portion of the storm water treatment works or BMP, including interceptors or other conveyance, lift stations, drainage systems, catch basins, constructed channels, specific practices or devices, and privately-owned storm water treatment works or BMPs.

NR 162.24(3)(h)2. 2. Establish the term of the intermunicipal agreement, unless it is effective in perpetuity, subject to all of the following:

NR 162.24(3)(h)2.a. a. If the intermunicipal agreement is new or being negotiated specifically for the project for which financial assistance is being requested, the term shall be for at least the term of the financial assistance agreement.

NR 162.24(3)(h)2.b. b. If there is an existing intermunicipal agreement in place that meets the requirements of this section but expires during the loan term, the municipality shall renegotiate or extend the existing agreement prior to the end of its term and maintain the intermunicipal agreement throughout the term of the financial assistance agreement.

NR 162.24(3)(h)3. 3. Require each municipality to adopt local regulations for construction sites and adopt a municipal storm water management plan for new development and redevelopment, consistent with the performance standards developed by the department under s. 281.33 (3), Stats.

NR 162.24(3)(h)4. 4. Demonstrate the basis for generating revenue for operation, maintenance, and replacement costs based on actual use or another equitable method and state the parties that are responsible for paying these charges.

NR 162.24(3)(h)5. 5. Indicate the method for generating revenue for capital costs and indicate who is responsible for payment.

NR 162.24(3)(h)6. 6. Indicate that the owner of the regional facility shall accept the applicant’s runoff and identify the boundary from which the applicant’s discharge originates.

NR 162.24(3)(i) (i) Financial information required by DOA to be used in determining the affordability of the proposed project, the financial capability of the municipality, and the adequacy of the pledge of revenues to repay the obligation securing the proposed financial assistance.

NR 162.24(3)(j) (j) A copy of the existing user charge system and information regarding the proposed user charge system and a storm water management zoning ordinance, when required by the department.

NR 162.24(3)(k) (k) Any existing or proposed contracts with users of the storm water treatment works or BMP.

NR 162.24(3)(L) (L) Documentation applicable to U.S. internal revenue service tax information as indicated in the online application system.

NR 162.24(3)(m) (m) A resolution declaring intent to reimburse municipal accounts with financial assistance proceeds that meets the requirements established in U.S. treasury reimbursement regulations 26 CFR 1.150-2.

NR 162.24(3)(n) (n) A copy of the debt instrument of any interim debt to be refinanced with CWFP financial assistance.

NR 162.24(3)(o) (o) A completed design life worksheet if the applicant at the time of application requests a loan term that is greater than 20 years.

NR 162.24(4) (4) Application submittal deadline and application acceptance. Section NR 162.05 (6) and (7) are applicable to storm water treatment works projects and BMPs.

NR 162.24 History History: CR 22-045: cr. Register October 2023 No. 814, eff. 11-1-23; correction in (4) made under s. 35.17, Stats., Register October 2023 No. 814.

NR 162.25 NR 162.25 Financial assistance requirements. Before executing a financial assistance agreement for any project under this subchapter, the department shall determine that all of the applicable requirements of s. NR 162.24 are met, and that all of the following are satisfied:

NR 162.25(1) (1) All of the following documentation, if applicable to the scored project, is submitted to the department:

NR 162.25(1)(a) (a) Certification for force account work as required by s. NR 162.08 (5).

NR 162.25(1)(b) (b) A certification or legal opinion regarding land ownership and acquisition of easements and rights-of-way necessary for the project. The certification or legal opinion shall be in accordance with s. NR 162.055.

NR 162.25(1)(c) (c) Items related to bids for each prime contract, including all of the following:

NR 162.25(1)(c)1. 1. The proposal of the successful bidder.

NR 162.25(1)(c)2. 2. An engineer’s evaluation of the bids, including bid tabulation, and recommendation.

NR 162.25(1)(c)3. 3. If an applicant awards a construction or equipment contract to other than the lowest bidder, one of the following:

NR 162.25(1)(c)3.a. a. Written documentation of the reasons why the lowest bidder is considered nonresponsive or not responsible.

NR 162.25(1)(c)3.b. b. A legal opinion stating that the award to a contractor other than the lowest responsive, responsible bidder meets the requirements of municipal bidding law.

NR 162.25(1)(c)4. 4. Solicitation and utilization information regarding DBEs.

NR 162.25(1)(c)5. 5. Evidence of bid advertisement, which should include appropriate language regarding DBEs submitting bid proposals, American-made product requirements, and wage rates, when applicable.

NR 162.25(1)(c)6. 6. A copy of the bid bond and the performance bond.