Chapter NR 335

MUNICIPAL DAM GRANT PROGRAM

NR 335.01   Purpose.

NR 335.02   Applicability.

NR 335.03   Definitions.

NR 335.04   Eligibility for a state grant.

NR 335.05   State share.

NR 335.06   Application and award procedures.

NR 335.07   Grant application.

NR 335.08   Eligible and ineligible costs.

NR 335.09   Criteria for priority ranking.

NR 335.10   Construction period.

NR 335.11   Final project approval.

NR 335.12   Grant payments.

NR 335.13   Adoption of land use controls in the hydraulic shadow.

NR 335.14   Grantee accountability.

NR 335.15   Variances.

NR 335.16   Dam grant inventory.

Ch. NR 335 Note Note: Chapter NR 335 was repealed and recreated by emergency rule effective 9-1-90. Chapter NR 335 as it existed on April 30, 1991, was repealed and a new chapter NR 335 was created effective May 1, 1991.

NR 335.01 NR 335.01 Purpose. The purpose of this chapter is to establish procedures for implementation of the dam maintenance, repair, modification, or abandonment and removal aid program established under s. 31.385, Stats.

NR 335.01 History History: Cr. Register, April, 1991, No. 424, eff. 5-1-91.

NR 335.02 NR 335.02 Applicability.

NR 335.02(1) (1) This chapter shall apply to applications for state aid in the form of grants for dam maintenance, repair, modification, or abandonment and removal under s. 31.385, Stats.

NR 335.02(2) (2) The provisions of this chapter are applicable to dams that:

NR 335.02(2)(a) (a) Are owned by a municipality or public inland lake protection and rehabilitation district; and

NR 335.02(2)(b) (b) Are not inspected, approved and licensed by a federal agency under 18 CFR Part 12.

NR 335.02 History History: Cr. Register, April, 1991, No. 424, eff. 5-1-91; CR 10-032: am. (1) Register October 2010 No. 658, eff. 11-1-10.

NR 335.03 NR 335.03 Definitions. For the purpose of this chapter:

NR 335.03(1) (1) “Abandonment” means abandonment of the permit or approval of a dam and the removal of the dam in compliance with ch. 31, Stats.

NR 335.03(2) (2) “Approval” means the written approval of the department.

NR 335.03(3) (3) “Authorized representative” means the official or employee designated by resolution of the governing body of a municipality or lake district to act on behalf of the owner under this chapter.

NR 335.03(4) (4) “Dam” means any artificial barrier in or across a watercourse which has the primary purpose of impounding or diverting water. A dam includes all appurtenant works, such as a dike, canal or powerhouse.

NR 335.03(5) (5) “Dam grant inventory” means the list of dams maintained by the department that require a dam safety project and for which a grant application has been filed under s. 31.385, Stats.

NR 335.03(6) (6) “Dam safety project” means the maintenance, repair, modification, or abandonment and removal of a dam to increase the safety of the dam or any other activity that will increase the safety of the dam.

NR 335.03(7) (7) “Department” means the department of natural resources.

NR 335.03(8) (8) “Directives” means the requirements for repair, maintenance, modification or abandonment established by the department in the inspection report sent to the owner.

NR 335.03(9) (9) “Force account” means the performance of a project with the forces and resources of the sponsor, including personal services, equipment and materials.

NR 335.03(10) (10) “Fringe benefits” means employers’ contributions or expenses for social security, employee’s life and health insurance plans, unemployment insurance coverage, worker’s compensation insurance, pension retirement plans, and employee benefits in the form of regular compensation during authorized absences from the job (such as annual, sick, court or military leave). These contributions and expenses shall be equitably distributed to all employee labor activities.

NR 335.03(11) (11) “Grantee” means the municipality or lake district which receives a grant award from the state under this chapter.

NR 335.03(12) (12) “Hydraulic shadow” means that area of land downstream from a dam that would be inundated by water upon failure of the dam during the regional flood.

NR 335.03(13) (13) “Indirect costs” means those costs not directly assignable to a grant, program or project. Such costs are generally administrative in nature, are incurred for a common or joint purpose, or are not readily assignable to a project or program.

NR 335.03(14) (14) “Investigation” means an inspection performed by or in coordination with the department after the owner has received either directives in an inspection report or an order, to determine whether the owner may be eligible for a grant under this chapter for work that remains to be performed on the dam.

NR 335.03(15) (15) “Lake district” means a public inland lake protection and rehabilitation district formed under ch. 33, Stats.

NR 335.03(16) (16) “Land use controls” means a floodplain zoning ordinance adopted and approved pursuant to s. 87.30, Stats., or restrictive covenants, easements or other appropriate legal arrangements between the owner of the dam and the owners of all property within the dam’s hydraulic shadow.

NR 335.03(17) (17) “Modification” means any physical change to a dam, other than maintenance or repair of the existing components, that results in a change in the dam’s hydraulic capacity or structural stability.

NR 335.03(18) (18) “Municipality” means any town, village, city, county, or tribe in this state.

NR 335.03(19) (19) “Order” means an enforcement order issued by the department under s. 31.19 (5), Stats., to an owner to repair or abandon a dam.

NR 335.03(20) (20) “Owner” means any municipality or lake district which holds the permit or approval under ch. 31, Stats., to a dam and fee title ownership or permanent legal access for the purposes of operation and maintenance to the specific piece of land on which a dam is physically located.

NR 335.03(21) (21) “Regional flood” means a flood determined to be representative of large floods known to have occurred in Wisconsin and which may be expected to occur on a particular stream once in every 100 years.

NR 335.03 Note Note: The regional flood is based upon a statistical analysis of stream flow records available for the watershed or an analysis of rainfall or runoff characteristics in the watershed or both. The flood frequency of the regional flood is once in every 100 years. In any given year, there is a 1% chance that the regional flood may occur or be exceeded.

NR 335.03(22) (22) “Repair” means work performed on a dam, including maintenance, which is required to provide proper operation or continued structural integrity of the dam and does not change the dam’s hydraulic capacity.

NR 335.03(23) (23) “Sponsor” means a dam owner who applies for a grant under this chapter to do a dam safety project at their dam.

NR 335.03(24) (24) “Sponsor match” means the portion of the dam safety project which is not funded by the state. Eligible sources of sponsor match may include cash from the sponsor; in-kind contributions; funds generated by local, state or federal government; grants or contributions from foundations, businesses, private individuals, non-profit organizations, or other local state or federal grants.

NR 335.03 History History: Cr. Register, April, 1991, No. 424, eff. 5-1-91; CR 10-032: am. (1), (4) and (23), r. (12) to (14), (18) and (20), renum. (5), (6), (7), (8), (9) to (11), (15) to (17) and (19) to be (7), (8), (11), (12), (14) to (16), (17) to (19) and (20) and am. (14), (18) and (20), cr. (5), (6), (9), (10), (13) and (24) Register October 2010 No. 658, eff. 11-1-10.

NR 335.04 NR 335.04 Eligibility for a state grant.

NR 335.04(1) (1) Any municipality or lake district that owns a dam in Wisconsin may apply for state aid for repair, modification or abandonment of the dam upon compliance with sub. (2).

NR 335.04(2) (2) To be eligible to receive a grant under this chapter, the owner shall:

NR 335.04(2)(a) (a) Request, in writing, financial assistance under this chapter within 6 months after receiving directives or an order for repair, modification or abandonment of the dam resulting from a department investigation or inspection of the dam, or have received a directive from the department or have been under order by the department to repair, modify or abandon the dam, on or before August 9, 1989; and

NR 335.04(2)(b) (b) Comply with all applicable requirements of this chapter.

NR 335.04 History History: Cr. Register, April, 1991, No. 424, eff. 5-1-91.

NR 335.05 NR 335.05 State share.

NR 335.05(1) (1) For dam repair, reconstruction or maintenance projects the following cost share provisions shall apply:

NR 335.05(1)(a) (a) The state share may not exceed 50% of the first $400,000 of eligible project costs nor more than 25% of the eligible project costs that exceed $400,000.

NR 335.05(1)(b) (b) The dam owner shall provide a sponsor match for 50% of the first $400,000 of eligible project costs, 75% of the next $800,000 of project costs and all ineligible cost or eligible costs exceeding $1,200,000.

NR 335.05(1)(c) (c) Sponsor match may come from other sources including another state or federal cost sharing or grant program, from another municipality, or any other outside funding source.

NR 335.05(2) (2) For dam removal projects the state share may not exceed 100% of the eligible project costs.

NR 335.05(3) (3) The state share is limited to no more than $400,000 for each dam safety project.

NR 335.05 History History: Cr. Register, April, 1991, No. 424, eff. 5-1-91; CR 10-032: r. and recr. Register October 2010 No. 658, eff. 11-1-10.

NR 335.06 NR 335.06 Application and award procedures. Aid available under this program shall be awarded to those projects with the highest points on a priority list, as determined by the procedures and criteria in s. NR 335.09, and in accordance with the procedures in this section. Projects on the priority list shall be funded within the limits of available funds.

NR 335.06(1) (1) All applications for a grant under this chapter shall be received by the department or postmarked no later than September 15 of each year, unless otherwise noted on the application materials. The signed application and required attachments shall be delivered to the department location identified in the application materials. Acceptable delivery methods shall be identified in the application materials. Applications received or postmarked on the same day shall be randomly assigned an order received within that day.

NR 335.06(2) (2) The department shall review each application received for completeness and within 15 days of the application deadline shall advise the applicant in writing of any deficiencies, omissions or errors in the application in writing. Incomplete applications may not be considered if all information is not received by the department within 45 days of the application deadline for that year. The date that the last materials, required for a complete application, were received by the department shall be used to break ties on the priority list.

NR 335.06(3) (3) The department shall establish a priority list within 60 days of the application deadline, which ranks all complete applications received by the application deadline. Applicants shall be notified of their placement on the priority list and the probability of approval for funding. The ranking of applicants shall be made available upon written request. In developing this list the department shall:

NR 335.06(3)(a) (a) Rank applications with identical point totals based upon the date the complete application was received by the department with highest priority given to the earliest received complete application.

NR 335.06(3)(b) (b) Add a contingency, based on past experience with the grant program to the cost estimates provided in the grant applications to assure adequate funding is available for projects receiving a commitment to funding. If the next project on the list would exceed the available funding the department may choose to reserve those funds until there is adequate funding to fully commit to the next project on the list.

NR 335.06(4) (4) Applicants receiving a commitment for funding shall submit plans and specifications to the department, for approval within 6 months of the notification on placement on the priority ranking list, unless an extension is requested in writing and approved by the department.

NR 335.06(5) (5) Applicants receiving a commitment for funding shall submit construction bids for the proposed work to the department within 90 days of department approval of plans and specifications. Following submission to the department, the owner may rebid the project without losing eligibility if the original bid is deemed too high or inappropriate. The applicant shall rebid the project within 60 days of receipt of the original bid. The department shall direct the owner to rebid the project if it deems the bid inappropriate. The applicant shall rebid the project within 60 days of receiving notification from the department that the department deems the bid inappropriate.

NR 335.06(6) (6) The department shall issue, in writing, a notice of grant award within 30 days of receipt of an acceptable construction bid.

NR 335.06(7) (7) All complete applications received or postmarked after the application deadline shall be returned to the applicant.

NR 335.06(8) (8) If there are insufficient funds to award aid to all eligible applicants on the priority list, their placement on the priority ranking list shall be maintained until the next grant application deadline in case a higher ranked project elects not to receive their grant or returns unused funds to the program. As application requirements could change between grant cycles, sponsors of unfunded projects shall submit new applications each grant cycle.

NR 335.06(9) (9) No grant may be awarded under this program until the owner of the dam provides adequate proof of ownership of the entire dam and a dam failure analysis approvable under the standards of s. NR 333.05 (2), including maps suitable for the purpose of implementing land use controls below the dam.

NR 335.06(10) (10) No grant may be awarded under this program for a dam project that has already received a grant award through the Dam Removal Grant program administered under ch. NR 336.

NR 335.06(11) (11) For any project that does not adequately advance within one year of funding notification to a point where the grant award is written, the department’s commitment to fund said project may be rescinded. Funds that have been so rescinded may then be committed to the next unfunded project on the priority list.

NR 335.06 History History: Cr. Register, April, 1991, No. 424, eff. 5-1-91; CR 10-032: am. (intro.) and (1), renum. (2) to (7) to be (3) to (8) and am. (3) to (5), (7) and (8), cr. (2), (3) (a), (b), (9) to (11) Register October 2010 No. 658, eff. 11-1-10.

NR 335.07 NR 335.07 Grant application.

NR 335.07(1) (1) Procedure. Subject to the availability of funds, the department shall:

NR 335.07(1)(a) (a) Solicit applications on an annual basis for projects to be funded under this chapter by providing notice that the application materials are available upon request.

NR 335.07(1)(b) (b) Distribute to any potential applicant that requests it a copy of the application, instructions for completing the application and guidelines that the department shall use to score the project application.

NR 335.07(1)(c) (c) Require a separate grant application shall be submitted to the department for each individual dam for which financial assistance is requested under this chapter. Only one application under this chapter may be received for any particular dam in any year.

NR 335.07(2) (2) Contents of application. An application for a grant under this chapter shall be made on forms furnished by the department. In addition to the application form, the application shall include the following: