Chapter NR 166

NR 166.16(3)(a) (a) The department may direct DOA to withhold financial assistance disbursements if the department determines that a recipient has failed to comply with project objectives or the terms, conditions, or reporting requirements of the financial assistance agreement.

NR 166.16(3)(b) (b) The department may withhold 5 percent of the principal amount of a loan until all of the project closeout requirements under sub. (4) (b) are completed.

NR 166.16(3)(c) (c) The department may withhold payment of costs that fall outside of the beginning or end dates of a contract or that are in excess of the estimated not-to-exceed amount in the contract until the recipient amends the contract.

NR 166.16(3)(d) (d) The department may withhold payment of costs of a contract until the recipient submits the required documentation for the costs, including a copy of the department construction management engineer’s approval letter for any change order for which payment is requested and any amendments to engineering or other professional services contracts for which disbursement of financial assistance for costs of the contract will be requested.

NR 166.16(4) (4) Final disbursement and project closeout.

NR 166.16(4)(a) (a) The recipient shall submit the final request for disbursement as soon as is practicable after final completion of project construction.

NR 166.16(4)(b) (b) All of the following project closeout procedures shall occur prior to the final disbursement or as soon as is practicable after final completion of project construction if the recipient determines it will not be requesting any additional funds but did not previously label a request for disbursement as the final request:

NR 166.16(4)(b)1. 1. The department shall complete a final inspection and sign off on the scored project.

NR 166.16(4)(b)2. 2. The recipient shall submit to the department for review all change orders and amendments for all contracts associated with the project that the recipient did not submit before or during construction of the project.

NR 166.16(4)(b)3. 3. The recipient shall certify its acceptance of the project from its contractors and engineers on a form provided by the department.

NR 166.16 Note Note: A project acceptance certification form is available on the Environmental Improvement Fund website at https://dnr.wisconsin.gov/aid/documents/EIF/Forms/forms.html or in paper form from the Bureau of Community Financial Assistance, Department of Natural Resources, Box 7921, Madison WI 53707-7921.

NR 166.16(4)(b)4. 4. The recipient shall document final utilization of MBEs and WBEs on a form provided by the department.

NR 166.16 Note Note: An MBE/WBE utilization form is available on the Environmental Improvement Fund website at https://dnr.wisconsin.gov/aid/documents/EIF/Forms/forms.html or in paper form from the Bureau of Community Financial Assistance, Department of Natural Resources, Box 7921, Madison WI 53707-7921. This form is also provided in the financial assistance agreement as an exhibit.

NR 166.16(4)(b)5. 5. The recipient shall certify its compliance with federal requirements as detailed in the financial assistance agreement.

NR 166.16(4)(b)6. 6. The department shall inform DOA of the recipient’s compliance with all applicable requirements of this chapter and the financial assistance agreement.

NR 166.16(4)(b)7. 7. After the department determines that the project closeout requirements under subds. 1. to 6. are completed, the department shall notify the recipient that the project is closed out, or, if there is a final disbursement yet to be sent to the recipient, the department shall notify the recipient of the date and amount of the final disbursement and that the project will be closed out on the date of the final disbursement.

NR 166.16(4)(c) (c) If construction of a project is complete prior to the SDWLP loan closing for the project, the recipient shall submit project closeout documents within 90 days of the loan closing date.

NR 166.16(4)(d) (d) If the recipient does not provide the required documents for project closeout of a completed project to the department for any SDWLP financial assistance agreement or any other financial assistance from the environmental improvement fund and applies for funding from the environmental improvement fund for another project, the department may deny financial assistance for the new project until the previous project is closed out according to requirements under this chapter.

NR 166.16 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.17 NR 166.17 Amendments to a financial assistance agreement.

NR 166.17(1) (1) Additional funding.

NR 166.17(1)(a) (a) General.

NR 166.17(1)(a)1. 1. ‘Additional assistance at end of project.’ The department may issue an amendment to a financial assistance agreement to provide additional financial assistance for eligible project costs incurred beyond the amount specified in the original financial assistance agreement. The department may process a request to provide additional financial assistance for a project only after the total remaining costs to complete the project can be reasonably determined.

NR 166.17(1)(a)2. 2. ‘Consistent with scope.’ To be eligible for additional financial assistance, any changes in the project necessitating the amendment must be consistent with the objectives and scope of the project as described in the original financial assistance agreement. Changes that necessitate an amendment must be due to unforeseen circumstances or approvable change orders to a project construction contract.

NR 166.17(1)(a)3. 3. ‘Plans and specifications approval.’ If there are changes in the project that require department approval of plans and specifications, the municipality shall obtain department approval prior to the amendment loan closing.

NR 166.17(1)(a)4. 4. ‘New financial assistance agreement.’ An amendment shall be in the form of a new financial assistance agreement tied to the original project through the budget and project description. The department and the DOA shall determine the appropriate interest rate for the amendment based on the market interest rate in effect on the date of the municipality’s meeting at which they pass the related bond resolution.

NR 166.17(1)(a)5. 5. ‘Debt coverage requirements.’ The municipality must meet debt coverage requirements for the additional financial assistance.

NR 166.17(1)(b) (b) Applicability. Additional financial assistance under par. (a) for a scored project is subject to all of the following:

NR 166.17(1)(b)1. 1. ‘Availability of funds.’ If there are sufficient loan funds available, as determined under s. 281.59, Stats., a municipality may receive loan funds for additional project costs incurred that cause the total eligible project costs to be greater than the amount provided in the original financial assistance agreement. The loan interest rate and loan maturity date shall be determined by the department and DOA.

NR 166.17(1)(b)2. 2. ‘No principal forgiveness.’ The department may not provide additional principal forgiveness funds in the amendment to the financial assistance agreement.

NR 166.17(1)(c) (c) Requesting funds. A municipality may request financial assistance for additional project costs using one of the following options:

NR 166.17(1)(c)1. 1. ‘Request in writing.’ The municipality shall submit a written request to the department that justifies the need for additional financial assistance and details the additional eligible costs. A revised budget shall be submitted with the request indicating in one column the line-item totals in the financial assistance agreement, in a second column the requested additional costs, and in a third column the total project costs requested to be funded through the SDWLP via an amendment to the original financial assistance agreement. If there are other funding sources participating in the project, the revised budget shall indicate all funding changes applicable to the additional financial assistance being requested. All costs in the revised budget shall be assigned to the appropriate budget line items from which disbursement will be requested.

NR 166.17(1)(c)2. 2. ‘Electronic submittal.’ The department may require the written request for an amendment to be submitted as an email message with an attachment, as input into the department’s online application system, or by other appropriate means determined by the department.

NR 166.17(1)(d) (d) Plans and specifications. A municipality shall submit to the department any plans and specifications required for changes in the project that necessitate the amendment to the financial assistance agreement. The department shall issue an amendment for the additional project costs only after the department approves any engineering reports or plans and specifications required for the work related to the additional costs.

NR 166.17(1)(e) (e) Notice of intent to apply. A new notice of intent to apply for funding as described under s. NR 166.08 (1) is not required for purposes of requesting a financial assistance agreement amendment.

NR 166.17(2) (2) Effective date. A financial assistance agreement amendment is effective when executed by all parties to the agreement.

NR 166.17 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.18 NR 166.18 Disputes.

NR 166.18(1) (1) Decision of the department. Except as otherwise provided by law, any dispute arising under this chapter prior to the execution of a financial assistance agreement shall be decided in writing by the department. The department shall serve a copy of the decision on the applicant by mail.

NR 166.18(2) (2) Review of the decision. A final decision of the department may be reviewed under subch. III of ch. 227, Stats., and ch. NR 2.

NR 166.18 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.19 NR 166.19 Records and records retention.

NR 166.19(1) (1) Requirements. The recipient shall maintain SDWLP project-related books, documents, papers, records, and accounting procedures in accordance with generally accepted accounting principles, governmental accounting standards board requirements, or another method of accounting accepted by the department or required by the federal government and authorized under the financial assistance agreement and ch. Adm 35 and retain them in accordance with subch. II of ch. 19, Stats. The recipient shall require contractors, including contractors for professional services, to maintain SDWLP project-related books, documents, papers, and records related to the project that are necessary for the recipient’s compliance with this section.

NR 166.19(2) (2) Inspection. The department or its agents may, during normal business hours, inspect and copy the recipient’s SDWLP project-related records and the project-related records of its contractors.

NR 166.19(3) (3) Records retention.

NR 166.19(3)(a) (a) The recipient and its contractors shall retain and make all files, books, documents, and records relating to the construction of the scored project available to the department for a minimum of either 3 years from the date the department notifies the recipient that the project closeout is complete or 3 years from final completion of construction, whichever is later.

NR 166.19(3)(b) (b) If a financial assistance agreement is partially or completely terminated, the records relating to the work terminated shall be kept and made available for a period of 3 years from the date of any resulting final termination settlement.

NR 166.19(3)(c) (c) Records that relate to appeals, disputes, or litigation arising out of the performance of the project shall be retained until any appeals, disputes, or litigation have been finally resolved or for a period of 3 years from the date the department notifies the recipient under s. NR 166.16 (4) (b) 7. that the project closeout is complete, whichever is later.

NR 166.19(3)(d) (d) All other files and records relating to the scored project, including as-built plans, shall be retained for at least the term of the financial assistance agreement for the project.

NR 166.19(4) (4) Federal single audit. Recipients of financial assistance provided directly from the federal capitalization grant shall comply with the federal single audit requirements established in 31 USC 7501 to 7506, OMB circular A–133, and ch. Adm 35.

NR 166.19 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2023 No. 814.

NR 166.20 NR 166.20 Breach of contract.

NR 166.20(1) (1) Upon breach of the financial assistance agreement by the recipient, the department may do any of the following:

NR 166.20(1)(a) (a) Declare the unpaid loan balance mature and immediately payable.

NR 166.20(1)(b) (b) Increase the interest rate on the unpaid balance of the loan to the market interest rate in effect on the date the financial assistance agreement was executed.

NR 166.20(1)(c) (c) Immediately terminate the financial assistance agreement and disburse no additional funds if the financial assistance has not been fully disbursed.

NR 166.20(1)(d) (d) Seek an injunction or any other equitable or judicial relief from a court of appropriate jurisdiction.

NR 166.20(1)(e) (e) Seek any other appropriate administrative remedy.

NR 166.20(2) (2) DOA’s receipt of any payment after the occurrence of a breach of contract does not constitute the department’s waiver of any rights and remedies under this section.

NR 166.20 Note Note: DOA may, under s. 281.59 (11) (b), Stats., seek recovery of some or all financial assistance payments by deducting those amounts from any state payments due to a municipality, or by adding a special charge to the amount of taxes apportioned to and levied upon the county under s. 70.60, Stats.

NR 166.20 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.21 NR 166.21 Noncompliance. Upon failure of the recipient to comply with s. 281.59 or 281.61, Stats., or with provisions of this chapter, the department may do any of the following:

NR 166.21(1) (1) Refuse to enter into a financial assistance agreement.

NR 166.21(2) (2) Seek penalties as provided in ch. 281, Stats.

NR 166.21(3) (3) Seek any other appropriate remedy, relief, or penalty.

NR 166.21 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.22 NR 166.22 Variances.

NR 166.22(1) (1) General. The department may, on its own initiative or pursuant to a written request from an applicant, approve a variance from a requirement of this chapter when it determines that special circumstances make a variance in the best interest of the state. Any variance approved shall be consistent with the objectives of ss. 281.59 and 281.61, Stats.

NR 166.22(2) (2) Applicability. The department may only approve a variance from any non–statutory requirement of this chapter.

NR 166.22(3) (3) Request for variance. An applicant shall submit any request for a variance in writing to the department as soon as it is determined a variance is needed. Each request for a variance shall contain all of the following:

NR 166.22(3)(a) (a) The name of the applicant and the SDWLP project number.

NR 166.22(3)(b) (b) The section of this chapter from which the applicant seeks a variance and a statement explaining why the variance is necessary.

NR 166.22(3)(c) (c) An adequate description of the variance desired, and the facts which the recipient believes warrant the department’s approving the variance.

NR 166.22(3)(d) (d) A statement as to whether the recipient has previously requested the same or a similar variance, and if so, the circumstances of the previous request.

NR 166.22(4) (4) Granting a variance. Before granting a variance, the department shall consider factors such as good cause, circumstances beyond the control of the recipient, emergencies, natural disasters, and financial hardship.

NR 166.22 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

subch. III of ch. NR 166 Subchapter III — Priority Scoring and Ranking System

NR 166.23 NR 166.23 Priority scoring criteria.

NR 166.23(1) (1) Purpose. The purpose of the priority scoring criteria is to establish a list of eligible projects to be funded in a manner that is in accordance with the federal requirements of the safe drinking water act, 42 USC 300j–12. Consistent with the act, the criteria in subs. (1) to (4) shall apply. The department may require documentation to support any points requested by the municipality. The department may also require a potential applicant to communicate with the department prior to priority evaluation and ranking form submittal to determine what type of documentation is appropriate to show existing contamination for projects that will expand an existing water system or create a new community water system.

NR 166.23(2) (2) General priority. The department shall give first priority to acute public health risks, particularly those related to microbiological organisms, and second priority to situations that pose chronic and longer-term health risks to consumers, such as organic chemical contamination. The scoring criteria also consider issues that are related to infrastructure upgrading or replacement to address those projects, or portions of a project, that are eligible for funding but not included in the first 2 priority groups, including projects to correct significant deficiencies or develop capacity in a water system.

NR 166.23 Note Note: The act requires, to the maximum extent practicable, that priority ranking be given to projects that: 1) address the most serious risk to human health; 2) are necessary to ensure compliance with the requirements of the safe drinking water act, including requirements for filtration; and 3) assist systems most in need on a per household basis according to state affordability criteria.

NR 166.23(3) (3) Risk to human health. The following criteria related to human health risks are divided into acute and chronic risk categories. The department shall assign points to a project based on criteria in a single category in par. (a), if applicable, or a single category in par. (b), if applicable, but not from both. If the severity of the problem is not reflected in any of the categories in par. (a) or (b), the department shall determine the number of points to assign to the project. This subsection also includes par. (c) which the department shall use when assigning points for a project that will eliminate lead service lines. The department shall assign points for risk to human health based on all of the following criteria as applicable to the project:

NR 166.23(3)(a) (a) Violations and exceedances. Project addresses a maximum contaminant level violation, an action level exceedance, or a treatment technique violation, or an acute or a chronic health hazard under any of the following requirements:

NR 166.23(3)(a)1. 1. ‘Acute contaminants.’ Acute contaminants are divided into 3 groups. Points shall be awarded in the following manner for a project that eliminates a problem that poses an acute health hazard from one of these groups:

NR 166.23(3)(a)1.a. a. Five hundred points shall be awarded to a project that proposes to eliminate a microbiological MCL violation that already occurred or will address a confirmed waterborne disease outbreak as defined in s. NR 809.04 (90), or a demonstrated microbiological contamination problem for a newly created community water system or for expanding an existing community water system in accordance with s. NR 166.06 (1) (f).

NR 166.23(3)(a)1.b. b. Four hundred points shall be awarded to a project that eliminates violations of filtration requirements in s. NR 810.29 and disinfection requirements in ss. NR 810.09 and 810.31, or confirmed microbial, including giardia and cryptosporidium, contamination found in finished water.

NR 166.23(3)(a)1.c. c. Three hundred points shall be awarded to a project that eliminates a continuing nitrate or nitrite MCL exceedance, or a demonstrated nitrate or nitrite problem for a newly created community water system or expansion of an existing community water system in accordance with s. NR 166.06 (1) (f).

NR 166.23(3)(a)2. 2. ‘Chronic contaminants.’ Chronic contaminants are divided into 5 subgroups: inorganics, volatile organic chemicals, synthetic organic chemicals, radionuclides, and disinfection byproducts. For a newly created community water system or for expanding an existing community water system in this subdivision, points shall be assigned by determining the 90th percentile sample for the project area. All individual wells or surface water sources in the project area shall be included in the determination. A single water sample from each individual well or surface water source shall be used for the determination. All water samples submitted shall be collected within the same 6-month period and shall be representative of current conditions. If there is no sample for an individual well or surface water source, a value of zero or no detect shall be used in the determination. The maximum point total that shall be awarded in this subdivision is 250 points. Points shall be awarded in the following manner for a project that eliminates a chronic health hazard from these groups of chemicals:

NR 166.23(3)(a)2.a. a. For each subgroup, other than the disinfection byproducts subgroup, only the MCL exceedance of greatest percentage magnitude shall be used for the point calculation, even though multiple contaminant MCL exceedances might be occurring. For exceedances in multiple subgroups, see subd. 2. c. The MCL exceedance shall be divided by the current MCL or AL and then multiplied by 50 to obtain a subgroup point total.