CR 17-097 Rule Text

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

AMENDING, AND REPEALING AND RECREATING RULES

The statement of scope for this rule, WT-04-17, was approved by the Governor on March 7, 2017, published in Register No. 735 A2 on March 13, 2017, and approved by the Natural Resources Board on May 24, 2017. This rule was approved by the governor on March 16, 2018.

The Wisconsin Natural Resources Board proposes an order to amend ch. NR 152 Wis. Adm. Code, repeal and recreate ch. NR 152 Appendix A and Appendix B, relating to model ordinances for construction site erosion and sediment control, and post-construction storm water management.

WT-04-17

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Analysis Prepared by the Department of Natural Resources

1. Statutes Interpreted:

Sections 281.33 and 281.16, Stats.

2. Statutory Authority:

Sections 227.11, 281.16 (2), 281.33(3) (d), and 281.33(4), Stats.

3. Explanation of Agency Authority:

Section 281.33 (4), Stats., directs the department to prepare model ordinances for construction site erosion and sediment control, and post-construction storm water management in the form of an administrative rule.

Section 281.16 (2), Stats., directs the department by administrative rule to prescribe performance standards for nonpoint sources that are not agricultural facilities or agricultural practices.

Section 281.33 (3) (a) 1., Stats., requires the department to establish by rule uniform statewide standards rather than minimum standards for construction site erosion and sediment control, and storm water management. Section 281.33 (3) (d), Stats., provides that if the department determines that the non-agricultural performance standards prescribed by rule pursuant to s. 281.16 (2), Stats., meet the requirements for establishing the uniform statewide standards under s. 281.33 (3) (a) 1., Stats., then the non-agricultural performance standards suffice as the uniform statewide standards. (In October 2014, the department developed program guidance (#3800-2014-03) to clarify that the non-agricultural performance standards prescribed in ch. NR 151, Wis. Adm. Code, are the uniform statewide standards pursuant to s. 281.33 (3) (d), Stats.)

4. Related Statutes or Rules:

This rule is directly related to the statewide non-agricultural performance standards pursuant to ch. NR 151, Wis. Adm. Code, and s. 281.33 (4), Stats., directing the department to prepare model ordinances for construction site erosion and sediment control, and post-construction storm water management in the form of an administrative rule.

5. Plain Language Analysis:

The purpose of this proposed rule change is to reflect the non-agricultural performance standards that were updated in 2011 by removing obsolete language and promoting statewide consistency with implementation of the performance standards.

6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:

Federal regulations do not require states to create model ordinances for the regulation of construction site erosion and sediment control, and post-construction storm water management. This rule revision is to fulfill the state statutory requirement to prepare the model ordinances by administrative rule.

7. Comparison with Similar Rules in Adjacent States:

Each of the neighboring states has some variation of construction site erosion and sediment control, and/or post-construction storm water model ordinance in the form of guidance available to their local units of government. None of the neighboring states require their departments to develop construction site erosion and sediment control, or post-construction storm water management model ordinances for local units of government by administrative rule. Whereas the State of Wisconsin directs the department, via state statute, to develop model ordinances for municipalities by administrative rule. Other states do require that the regulated community (Municipal Separate Storm Sewer System permittees) to develop a construction site runoff control ordinance to require proper soil erosion and sediment control.

*Illinois Department of Natural Resources developed "Model Stormwater Management Ordinance" https://www.dnr.illinois.gov/WaterResources/Documents/IL_Model_Stormwater_Ordinance.pdf)

*The "Iowa Model Construction Site Erosion and Sediment Control Model Ordinance" was prepared by the Iowa Association of Municipal Utilities in coordination with the Iowa Stormwater Partnership and funded from a grant by the Iowa Department of Natural Resources (http://www.iowastormwater.org/documents/filelibrary/files/ordinances/EandSC_Model_Ordinance_User_Guide_4E908F51DA014.pdf)

*Minnesota Pollution Control Agency "Model Erosion and Sediment Control Ordinance" (https://www.pca.state.mn.us/sites/default/files/wq-strm2-16b.pdf)

*Michigan does not have a soil erosion and sediment control model ordinance, but has a low impact development storm water model ordinance developed and reviewed by environmental consultants in their “Low Impact Development Manual for Michigan” (http://www.semcog.org/Reports/LID/index.html#474)

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 152, 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 this economic impact analysis whereas 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):