CR_09-112 Hearings to consider rules to revise Chs. NR 151, 153 and 155, relating to the control of polluted runoff and two grant programs that help fund those controls.

Section 9: The title to HA 2.06 is amended to add the term reconfinement to reflect that the division now has the authority to order reconfinement in extended supervision cases under section 302.113 (9) and 302.114 (9) , Stats.

Section 10: HA 2.06 (1) is amended to delete unnecessary statutory references. HA 2.06 (1) is further amended to add the term reconfinement to this section to reflect that the division now has the authority to order reconfinement in extended supervision cases under section 302.113 (9) and 302.114(9) , Stats.

Section 11: HA 2.06 (2), (3), (4) and (5) are amended to allow this type of hearing to take place by video conferencing or by telephone. These hearings or normally conducted by telephone. There is no factual dispute in these hearings regarding the alleged violations of community supervision. The only issue in these hearings is the length of incarceration to be determined by the administrative law judge.

Section 12: HA 2.06 (6) (c) is amended to delete unnecessary and outdated statutory references.

Section 13: HA 2.06 (6) (d) is amended to replace the term "hearing" with the term "close of the record" which allows more time for situations where the record is held open for a specific period of time after the hearing.

Section 14: HA 2.06 (7) is amended to delete the requirement for a synopsis which is not required by statute and not the practice of the division. A digital recording of all revocation hearings is available for review when necessary.

Section 15: HA 2.07 is amended to delete the reference to the amount charged per page for transcripts. This amount is outdated and not the correct amount charged by the division. The amount charged is determined by the administrator for the division and can be found in the public notice for access to records and on the internet at http://dha.state.wi.us/home/ RecordsPolicy.htm .

Comparison with federal regulations

There are no federal regulations governing practice and procedure before the division. While there are procedures for federal parole revocation hearings before the federal parole commission, they are not comparable to the hearings conducted by the division.

Comparison with rules in adjacent states

There are no comparable state regulations governing hearings for revocation of a person's community supervision by the department of corrections.

Summary of factual data and analytical methodologies

The division has not collected any data nor adopted a methodology in connection with its development of these proposed rule changes. The proposed changes generally are intended to clarify the rules, bring the rules into conformity with applicable practice and update the rules to reflect changes in technology.

Analysis and supporting documentation used to determine effect on small business

The division has not collected any data in connection with its determination of the impact of these proposed rule changes on small business or in preparation of an economic impact report.

Small Business Impact

This proposed rule does not have a significant effect on small business.

Fiscal Estimate

The division has already substantially reduced travel expenditures by conducting hearings by videoconference or telephone conference that would have been necessary if an administrative law judge were required to travel in person to each revocation hearing location.

Agency Contact Person

Diane E. Norman, Assistant Administrator

Division of Hearings and Appeals

5005 University Avenue, Suite 201

Madison, WI 53705

Phone: [phone]

email: [e-mail] .

Notice of Hearings

Natural Resources

Environmental Protection — General, Chs. NR 100—

CR 09-112

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 227.11 (2) (a) , 281.16 , 281.19 , 281.65 and 281.66 , Stats., the Department of Natural Resources will hold public hearings on proposed revisions to Chapters NR 151 , 153 and 155 , Wis. Adm. Code, relating to the control of polluted runoff and two grant programs that help fund those controls.

Hearing Information

The hearings will be held on:

January 25, 2010   Outagamie County Highway Dept.
at 1:00 p.m.   Highway Shop Conference Room
  1313 Holland Road
  Appleton

January 28, 2010   Best Western Trail Lodge
at 1:00 p.m.   3340 Mondovi Road
  Room: Chippewa #1
  Eau Claire

February 2, 2010   State Office Bldg.
at 1:00 p.m.   141 NW Barstow St., Room 151
  Waukesha

February 10, 2010   Lyman F. Anderson Agricultural and
at 1:00 p.m.   Conservation Center
  1 Fen Oak Court
  Classrooms A & B (1st floor)
  Madison

February 11, 2010   Rib Mountain Municipal Center
at 1:00 p.m.   3700 N. Mountain Road (HWY NN)
  Wausau

Each hearing will begin with a 1 hour informational session followed by formal testimony.

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided to qualified individuals with disabilities upon request. Please call Carol Holden at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rule and Fiscal Estimate

The proposed rule revisions and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following internet site: https://health.wisconsin.gov/admrules/public/ Home (Search this website using "NR 151", select "NR 151, 153, 155 Relating to Runoff Management Performance Standards and Grants."). If you do not have internet access, a personal copy of the proposed rules and supporting documents, including the fiscal estimate may be obtained from Carol Holden, DNR – WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by calling [phone].

Submission of Written Comments

Written comments on the proposed rules may be submitted via U.S. mail to Carol Holden, DNR – WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by e-mail to carol.holden@ wisconsin.gov . Comments may be submitted until Feb. 26, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings.

Analysis Prepared by Department of Natural Resources

Statutes interpreted

Sections 281.16 , 281.65 and 281.66 , Stats.

Statutory authority

Sections 227.11 (2) (a) , 281.16 , 281.19 , 281.65 and 281.66 , Stats.

Related statute or rule

Chapter 92 and s. 283.33 , Stats., and chs. ATCP 50 , and NR 120 , 152 , 154 , 216 and 243 , Wis. Adm. Code.

Plain language analysis of the rule

Chapter NR 151 , Runoff Management

The rule adds new and modifies existing performance standards that address nonpoint source pollution from both agricultural and non-agricultural sources, including transportation. The new performance standards include:

•   a setback from waterbodies in agricultural fields within which no tillage would be allowed;

•   a limit on the amount of phosphorus that may run off croplands as measured by a phosphorus index;

•   a prohibition against significant discharge of process wastewater from milk houses, feedlots, and other similar sources;

•   a standard that requires implementation of best management practices designed to meet a load allocation specified in an approved Total Maximum Daily Load (TMDL).

Modifications are made to the agricultural performance standards addressing cropland soil erosion control, nutrient management and manure storage. The rule also changes the non-agricultural performance standards that address construction site erosion control, post-construction storm water management and developed urban areas. The subchapter addressing transportation performance standards is moved to the non-agricultural performance standards sections. The agricultural implementation and enforcement sections are modified to clarify cost-share eligibility and to better align with the department's stepped enforcement procedures. Some definitions are added and other definitions that are no longer used are deleted.

Chapter NR 153 , Targeted Runoff Management And Notice Of Discharge Grant Programs

This existing rule contains policies and procedures for administering targeted runoff management grants to reduce both agricultural and urban nonpoint source pollution. Grants may be used to cost share the installation of best management practices as well as to support a variety of local administrative and planning functions. Projects are selected through a competitive scoring system and generally take two to three years to complete.

The revisions create four project categories for the targeted runoff management grant program instead of one category in the existing rule. The categories include large-scale/TMDL implementation, large-scale/non-TMDL control, small-scale/TMDL implementation and small-scale/ non-TMDL control projects. The rule will help the state make progress in meeting its obligation to address impaired waters by focused funding of projects addressing TMDLs.

To implement recent statutory changes to the grant program, the rule creates a mechanism outside the competitive TRM process to fund Notices of Discharge (NODs) issued under ch. NR 243 . Other provisions allow the department more flexibility in allocating grant funds and ensure an equitable scoring system. Portions of ch. NR 153 are repealed and recreated to accommodate the newly created categories, to eliminate or add definitions, clarify and expand restrictions on cost sharing, require the establishment of a local ch. NR 151 implementation program as a grant condition and allow for additional safeguards in the application documents.

Chapter NR 155 , Urban Nonpoint Source Pollution Abatement And Storm Water Management Grant Program

This existing rule contains policy and procedures for administering the urban nonpoint source and storm water management grant program authorized under s. 281.66 , Stats. The department may make grants under this program to governmental units for practices to control both point and nonpoint sources of storm water runoff from existing urban areas, and to fund storm water management plans for developing urban areas and areas of urban redevelopment. The goal of this grant program is to achieve water quality standards, minimize flooding, protect groundwater, coordinate urban nonpoint source management activities with the municipal storm water discharge permit program and implement the non-agricultural nonpoint source performance standards under ch. NR 151 . Grants to a governmental unit may be used to cost share the installation of best management practices as well as to support a variety of local administrative and planning functions. The department may also make grants to the board of regents of the University of Wisconsin System to control urban storm water runoff from campuses in selected locations. Projects are selected through a competitive scoring system and generally take one to two years to complete.

The revisions to ch. NR 155 increase the department's management oversight and accountability of grants while at the same time increase flexibility in how the grants are used. The revisions limit on the amount of money a grantee may receive in a given grant year, increase the department's management oversight of grants by approving all contracts, regardless of cost, provide the department greater flexibility in awarding funds and allow for additional safeguards in the application documents.

The rule also allows the use of local assistance grants to pay for work done by competent in-house staff rather than hiring an outside consultant thus increasing local government's flexibility to control costs. The rule adds requirements that hired consultants be competent in storm water management, all outstanding grants be completed on schedule prior to a new grant award, a final report be submitted and that the department may deny a grant to an otherwise eligible project if there is a potential impact on hazardous sites in addition to historic sites, cultural resources or endangered resources. Other parts of ch. NR 155 are repealed and recreated to define terms, clarify concepts and merge similar sections, giving the department greater flexibility in awarding funds.

Comparison with federal regulations

The rule revisions are consistent with federal regulations that apply to control of nonpoint sources of pollution, animal feeding operations, nutrient management and storm water management. While federal regulations do not apply specifically to cropland practices or livestock operations that have only nonpoint source runoff, there are federal regulations for concentrated animal feeding operations (point sources) that specify control of nutrients entering surface waters. Certain modifications also better align state grant funding priorities with those of the federal government regarding total maximum daily loads.

The rule's phosphorus index performance standard is based on national policy and guidelines on nutrient management issued by the US Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) in April, 1999. The national policy and guidelines suggested the use of one of three phosphorus risk assessment tools, the most comprehensive of which is the phosphorus index. Prior to the adoption of this national policy, states began developing phosphorus-based nutrient management guidelines or regulations. The tillage setback performance standard is based on the phosphorus index calculation that assumes no tillage to the edge of the bank. The performance standard specifying BMPs to meet the load requirements of approved TMDLs will help the state to control nonpoint source pollutants to achieve federally required and approved TMDLs. The control of process wastewater discharge is of sufficient concern that USDA has developed technical standards for management of process wastewater.

Comparison of similar rules in adjacent states

In general, the adjacent states do not use statewide performance standards specifically designed to address polluted runoff from agricultural sources. However, these states have various regulations and procedures in place to address many of the polluted runoff sources that these rule revisions address. All four states use the phosphorus index in some form but none have proposed using it as a statewide performance standard as this rule does. The rule differs from the adjacent states' rules because it has more detail in its phosphorus index, is more quantitative and has more research to validate it. Also, in Wisconsin, pursuant to s. 281.16 , Stats., cost sharing must be made available to existing agricultural operations before the state may require compliance with the standards.

Illinois:

Illinois does not have a tillage setback requirement, but it does offer a property tax incentive for the construction of livestock waste management facilities including the development of vegetative filter strips. The filter strips must be in cropland that is surrounding a surface-water or groundwater conduit, must be part of a conservation plan, and must have a uniform ground cover. The minimum and maximum widths that are eligible for the tax reduction is determined by the slope. Illinois does not allow raw materials, by-products and products of livestock management facilities, including milkhouse waste, silage leachate, and other similar products to be discharged to waters of the state. In addition to tax incentives, Illinois relies on federal Clean Water Act section 319 funds from US EPA to fund nonpoint source projects in the state.

Illinois requires that permit applicants follow a series of technical standards that are in the Illinois Urban Manual for both construction and post-construction. If the developer uses the technical standards they are considered in compliance, unless an inspection indicates that the technical standard is not working adequately. The developer will then need to make changes to their construction site or storm water management plan.

Iowa:

Iowa requires that nutrient management plans for livestock operation of 500 or more animal units be based on the phosphorus index. The rule's version of the phosphorus index uses Iowa's "quasi-modeling" approach but the equations are based on Wisconsin research. Iowa does not require a separation distance between tillage activities and waterbodies. Iowa prohibits discharge to waters of the state, polluting waters of the state and discharge to road ditches.

Iowa does not have a performance standard approach to construction projects, but does require BMP implementation. There is no specific goal for post-construction other than to have a storm water management plan similar to the way Wisconsin's program was set up before ch. NR 151 was promulgated in 2002. The requirement on the municipality is to try to control runoff from new development. There are no specific goals.

Iowa is making an effort to coordinate the development of TMDLs with the implementation of water quality improvement plans based on TMDLs. There is not yet a separate funding source specifically for implementing TMDL plans, but there are several different funding sources currently used for watershed project implementation, including section 319 funds and three different sources of state-funded watershed implementation funds. There is also a state-funded lakes restoration fund which may be partly used for watershed restoration work. Wherever possible, watershed projects try to leverage EQIP and other federal sources of funds.

Iowa does not currently offer a separate source of funds for Animal Feeding Operation BMPs in response to a Notice of Discharge violation. However, Iowa does not preclude a producer from funding because of a Notice of Violation (NOV), except in the case where the NOV results in the requirement for an NPDES permit. Funding from State Revolving Funds and federal section 319 cannot be used for BMPs requiring an NPDES permit, but can be used for non-permitted BMPs. EQIP funds in Iowa are currently allocated such that counties with water quality livestock projects receive 40 percent of the eligible points when scoring for EQIP funding. The Iowa Department of Agriculture and Land Stewardship has a nutrient management program designed to offer financial assistance for livestock producers for manure management, but the program has not been funded in over 10 years.

Michigan:

Michigan does not require a separation distance between tillage activities and waterbodies. The state's rules regarding process wastewater only apply to permitted concentrated animal feeding operations, but discharges from smaller farms are generally prohibited as a violation of water quality standards.

Within permits that apply to municipal separate storm sewer systems (MS4s), Michigan has similar performance standards for post-construction total suspended solids control and peak flow control in new development. It has a minimum treatment volume standard of one inch (or ½ inch if technically supported) where they must achieve an 80 percent total suspended solids reduction. It also has a channel protection criteria where the post-peak flow rate and volume must match the pre-peak flow rate and volume for all storms up to the 2-yr, 24-hr event. The peak flow control standard is more stringent than this rule because it also controls volume. Wisconsin is trying to control streambank erosion by controlling a greater number of smaller storms. Michigan has also identified some water bodies that are not required to meet the channel protection standard, similar to Wisconsin's approach. Michigan has an option to use low impact development to meet these two standards, which is very different from Wisconsin. However, unlike Wisconsin, Michigan is only implementing these performance standards on new development in municipalities that have an MS4 permit. Also, if the municipality had an ordinance in place prior to this rule that addressed water quality for new development even if the performance standard was not included, they are grandfathered in.

Michigan has a pass through grant (section 319 and Clean Michigan Initiative funds) that places a priority on projects that will restore impaired waters or achieve progress toward meeting TMDL load reductions. Michigan does not have a program similar to the rule's mechanism to fund NODs outside of a competitive grant process.

Minnesota:

Minnesota does not have a tillage setback requirement along all waterbodies in agricultural areas, but the state does require a 16.5 foot (one rod) grass strip along certain public drainage ditches as well as vegetated strips, restored wetlands, and other voluntary set-aside lands through federal, state and local programs. For process wastewater, Minnesota rules place a limit of less than 25 mg/l BOD 5 (biological oxygen demand) that can be released to surface water and, if released to a leach field, the threshold is less than 200 mg/l BOD 5 .

For non-agricultural practices, Minnesota recently reissued construction permits that require infiltration and the need for additional BMPs when sites are located near s. 303 (d) or outstanding resource waters. Its permit generally is more prescriptive in terms of how to design a BMP for optimal control, but it is not usually presented as a performance standard which would provide more flexibility. Based on Minnesota's documentation, it appears to require BMPs that will achieve an 80 percent total suspended solids reduction and ones that will infiltrate the first half inch of runoff from impervious surfaces. Minnesota requires more BMPs, including temperature control, if the receiving water has special needs such as ORW/ERW waters or s. 303 (d) waters.

Minnesota provides funding for TMDLs through its Clean Water Legacy Act and section 319 of the federal Clean Water Act. The state does not have a funding mechanism to fund notices of discharge specifically, but is looking for ways to provide more financial support for runoff from feedlots. There is a state cost-share program which is used alone or in combination with federal cost share.

Summary of factual data and analytical methodologies

The rule's agricultural performance standards were developed with input from an advisory committee that met four times between December 2007 and February 2008. The following research results and methodologies were analyzed as part of the development of these standards.

Phosphorus Index:

The Wisconsin Buffer Initiative: A Report to the Natural Resources Board of the Wisconsin Department of Natural Resources by the University of Wisconsin-Madison, College of Agricultural and Life Sciences . Dec. 22, 2005.

The following series of articles focused on the watershed targeting approach used in the Wisconsin Buffer Initiative report:

Diebel, M. W., J.T. Maxted, P. J. Nowak, and M. J. Vander Zanden. 2008. Landscape planning for agricultural nonpoint source pollution reduction I: A geographical allocation framework. Environmental Management 42 (5): 789-802.

Maxted, J. T., Diebel, M. W., and M. J. Vander Zanden. 2009. Landscape planning for agricultural nonpoint source pollution reduction II: Balancing watershed size, number of watersheds, and implementation effort. Environmental Management 43 (1): 60-68.

Diebel, M. W., J.T. Maxted, D. Robertson, S. Han, and M. J. Vander Zanden. 2009. Landscape planning for agricultural nonpoint source pollution reduction III: Assessing phosphorus and sediment reduction potential. Environmental Management 43 (1): 69-83.

The following studies of in-field runoff sediment and phosphorus concentrations provided some of the data that was used in building phosphorus index equations:

Panuska, J.C., K.G. Karthikeyan and P.S. Miller. 2008. Impact of surface roughness and crusting on particle size distribution of edge-of-field sediments. Geoderma 145: 315 – 324.

Panuska, J.C., K.G. Karthikeyan and J.M. Norman. 2008. Sediment and phosphorus losses in snowmelt and rainfall runoff from three corn management systems. Trans. ASABE 51: 95 – 105.

Panuska, J.C., K.G. Karthikeyan. 2009. Phosphorus and organic matter enrichment in snowmelt and rainfall runoff from agricultural fields. Geoderma XX: XX –XX (in review).

The following articles about the in-field runoff monitoring methods to collect the runoff phosphorus data that are used to validate the phosphorus index:

Bonilla, C.A., D.G. Kroll, J. M. Norman, D.C. Yoder, C.C. Molling. P.S. Miller, J.C. Panuska, J. B. Topel, P.L. Wakeman, and K.G. Karthikeyan. 2006. Instrumentation for measuring runoff, sediment, and chemical losses from agricultural fields. Journal of Environmental Quality 35:216-223.

Stunetebeck, T.D., M.J. Komiskey, D.W. Owens, and D.W. Hall. 2008. Methods of data collection, sample processing and data analysis for edge-of-field, stream gaging, subsurface tile, and meterological stations at Discovery Farms and Pioneer Farm in Wisconsin, 2001-7. U.S. Geological Survey Open File report 2008-1015. 51 p.

The following paper showed one year's worth of research that validated the Wisconsin phosphorus index.

Bundy, L. G., A. P. Mallarino, and L. W. Good. 2008. Field-Scale Tools for Reducing Nutrient Losses to Water Resources. Pp. 159-170 in Final Report: Gulf Hypoxia and Local Water Quality Concerns Workshop. September 26-28, 2005, Ames, Iowa. Sponsored by Iowa State University and EPA. Organized by the MRSHNC, Upper Mississippi River Sub-basin Hypoxia Nutrient Committee. St. Joseph, Michigan.

The following paper in press shows that simple runoff phosphorus loss models, like the Wisconsin phosphorus index can work well:

Vadas, P. A., L.W. Good, P.A. Moore Jr., and N. Widman. 2009. Estimating phosphorus loss in runoff from manure and phosphorus for a phosphorus loss quantification tool. Journal of Environmental Quality (in press).

The following document shows all the phosphorus index equations on the internet:

Good, L. W. and J. C. Panuska. 2008. Current calculations in the Wisconsin P Index. Available at: http://wpindex.soils . wisc.edu .

The following models were used in the development of the Wisconsin phosphorus index:

RUSLE 2 (Revised Universal Soil Loss Equations, version 2), USDA-NRCS official RUSLE2 Program and Database and Training materials and User's Guides are available from http://fargo.nserl.purdue.edu/rusle2_dataweb/RUSLE2_Index.htm The draft user's guide on this site is on the link labeled "RUSLE2 Technology."

Snap-Plus 1.129.1, 1/20/2009 Copyright 2003-2008 by University of Wisconsin Regents Software developed by P Kaarakka, L.W. Good, and J. Wolter in the Department of Soil Science, UW Madison. This a software program links models for nutrient management (SNAP), conservation assessment (RUSLE2) and the Wisconsin Phosphorus Index (PI) into one software program for multi-year nutrient and conservation planning. The most current version is available at http://www.snapplus.net/ .

Process wastewater performance standard:

The rule's performance standard requires that livestock producers have no significant discharge of process wastewater to waters of the state. Sources of greatest concern include feed storage leachate and milk house waste. Process wastewater discharge is of sufficient concern that USDA has developed technical standards for its management. Environmental aspects of milking center waste water and feed storage leachate, including waste characteristics and water quality impacts, are included in:

Pollution Control Guide for Milking Center Wastewater Management. Springman, R.E., Payer, D.D and B.J. Holmes. 1994. University of Wisconsin-Extension, 44 pages.

"Silage Leachate Control". Wright, Peter, in Silage: Field to Feedbunk, Proceedings from the North American Conference, Hershey, Pennsylvania, February 11-13, 1997. Pages 173 – 186. NRAES, editor.

"Environmental Problems with Silage Effluent". Graves, R.E., and P.J. Vanderstappen. USDA Natural Resources Conservation Service, National Water Management Center Publication. 6 pages

"Base Flow Leachate Control." Wright, Peter and P.J. Vanderstappen. Paper No. 94-25 60, ASCE Meeting Presentation at the 1994 International Winter Meeting, Atlanta Ga., December 13 – 16, 1994. 7 pages.

The USDA technical standard for managing milk house waste and feed storage leachate discharges is: Waste Treatment (no. 629). USDA, Natural Resources Conservation Service. August, 2008. 22 pages.

Modifications to the non-agricultural performance standards were developed with input from a technical advisory committee that met four times between October 2007 and February 2008. Changes to the protective areas performance standard are based on the department's Guidance for the Establishment of Protective Areas for Wetlands in Runoff Management Rules, Wisconsin Administrative Code NR 151 in the Waterway and Wetland Handbook, Ch. 10 . Department staff gathered information from municipal engineers and conducted analyses under various scenarios using analytical models to provide information to the technical advisory committee including:

•   analysis showing the impact of redevelopment on total suspended solids loads, recommendations and estimated costs for control practices,

•   analysis of the infiltration performance standards modifications for different land uses.

Analysis and supporting documentation used to determine effect on small business

The department concluded that the revisions to chs. NR 151 , 153 and 155 will result in additional compliance requirements for small businesses, but the rules will not result in additional reporting requirements for small businesses. Rather than mandate specific design standards, the rules either establish new performance standards or revise existing performance standards.

Compliance requirements for agricultural producers vary depending on the type of operation and the performance standard, but the revisions to the rules will not change the existing compliance requirements for agricultural operations. Under state law, compliance with the performance standards is not required for existing nonpoint agricultural facilities and practices unless cost sharing is made available for eligible costs. A less stringent compliance schedule is not included for agricultural producers because compliance is contingent on cost sharing and in many cases, it can take years for a county or the state to provide cost share money to a producer.

Agricultural producers who are in compliance with the existing nutrient management performance standard may already be in compliance with the new phosphorus index and tillage setback performance standards. A phosphorus reduction strategy is included in NRCS nutrient management technical standard 590 (Sept. 5, 2005). A phosphorus index of 6 or less is specified in the PI strategy in Criteria C, 2 of the technical standard. The concept of streambank integrity, as proposed through a tillage setback performance standard, is an assumption of the phosphorus index calculation, which estimates phosphorus delivery to the stream via overland flow, but not from bank erosion or other means that soil, manure or fertilizer might enter the stream from farming operations. In circumstances where the phosphorus index has been determined to be insufficient to achieve water quality standards in areas where an approved total maximum daily load (TMDL) has been approved, a higher level of pollution control may be required. An owner or operator in this situation would be required to implement BMPs designed to meet the load allocation in the TMDL.

The rule revisions will not change the schedules for compliance and reporting requirements for non-agricultural businesses. These requirements are the same as those specified in ch. NR 216 . In determining whether non-agricultural small businesses can be exempted from the rules, the department concluded that because the requirements of ch. NR 151 , Subchapter III are based on federal requirements the state cannot exempt those businesses. Also, the impacts from certain small business construction activities can have as large a water quality impact as from large businesses.

In determining the compliance and reporting effects, the department considered 1) the existing performance standards and prohibitions in ch. NR 151 , 2 ) the requirements of NRCS technical standard 590 needed to meet the nutrient management performance standard, 3) assumptions contained in the Wisconsin Phosphorus Index, 4) compliance and reporting requirements under ch. NR 216 , Subchapter II, 5) agreement with the department of commerce to regulate storm water discharges from commercial building sites under one permit, and 6) feedback from members of advisory committees that included small business owners and organizations.

Small Business Impact (including how this rule will be enforced)

The overall effect on small businesses may be increased time, labor and money spent on BMPs or planning tools, but there will not be a significant economic impact on small business. However, for agricultural producers the proposed new agricultural performance standards and the revised existing agricultural performance standards are not enforceable unless 70 percent cost sharing is provided, or up to 90 percent for economic hardship cases. The rules will be enforced either through county ordinances, DNR stepped enforcement procedures or a combination of the two.

Small businesses in the construction industry will not see an effect from the changes to the construction performance standard, but may experience increased costs from the changes to some of the post-construction performance standards. Most of the businesses affected by the changes to the total suspended solids standard will be commercial and it is difficult to estimate how many of those would be classified as small businesses. The modifications to the infiltration and the protective area performance standards may add additional costs, but they are expected to be small. Businesses affected will be both large and small. The rule will be enforced through permits required under ch. NR 216 , or through local ordinances. For the non-agricultural performance standards, cost sharing is not required for compliance. However, the department may award grants for certain BMPs and planning activities.

Initial regulatory flexibility analysis

Pursuant to s. 227.114 , Stats., the proposed rule may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:

Describe the type of small business that will be affected by the rule.

Agricultural producers (crops and livestock), business and associated professionals involved with construction (developers, engineers, contractors, others in the building profession, and small commercial establishments that meet the definition of small business).

Briefly explain the reporting, bookkeeping and other procedures required for compliance with the rule.

None.

Describe the type of professional skills necessary for compliance with the rule.

Familiarity with software such as SNAP Plus and RUSLE2 will be needed for the phosphorus index agricultural performance standard.

Small business regulatory coordinator

The Department's Small Business Regulatory Coordinator for this rule may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

Summary

Proposed rule revision will result in an increased demand on agency staff devoting more time to training, education, grant oversight, enforcement and development of guidance and procedures. The department estimates that a total of 10.5 FTEs will be needed to implement all three rules.

State fiscal effect

Increase costs. Costs will not be absorbed within the agency's budget.

Local government fiscal effect

Increase costs.

Types of local governmental units affected

Towns, Villages, Cities, Counties.

Fund sources affected

GPR, SEG.

Long-range fiscal implications

State cost-share grants to fully implement the process wastewater performance standard would be $9.3 million or $930,000 annually if awarded over a 10-year period. However, this estimate is dependent upon the availability of cost-share funds to implement the standard.

Agency Contact Person

Carol Holden,

Department of Natural Resources

P.O. Box 7921

Madison, WI 53707-7921

Telephone: [phone]

Email: [e-mail]

Notice of Hearing

Natural Resources

Environmental Protection — General, Chs. NR 100—, WPDES, Chs. NR 200—, Water Regulation, Chs. NR 300—, Water Supply, Chs. NR 800—

CR 09-123

NOTICE IS HEREBY GIVEN THAT pursuant to Wisconsin Stats. ss. 30.12 , 30.19 , 227.11 , 281.15 , 281.41 , 283.11 , 283.31 , 283.37 , 283.39 , and 283.49 , the Department of Natural Resources will hold a public hearing on revisions to Chapters NR 102 , 103 , 105 , 106 , 108 , 110 , 114 , 200 , 203 , 205 , 210 , 214 , 299 , 328 , 341 , and 812 , Wis. Adm. Code, relating to updating rules to accommodate new technologies and construction methods, require electronic submittals of wastewater permit documents, ensure consistency with federal water program regulations, fix typographical errors, and make minor modifications or clarifications to a variety of rules affecting the Bureau of Watershed Management.

Hearing Information

Date and Time   Location

January 28, 2010   Conference Room G09
Thursday   DNR Office Building GEF II
at 11:00 AM   101 S. Webster Street
  Madison

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please contact Susan Sylvester at 608-266-1099 with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rules and Fiscal Estimate

The proposed rules and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov (Search this Web site using the Natural Resources Board Order No. WT-15-09). If you do not have Internet access, a personal copy of the proposed rules and supporting documents, including fiscal estimate may be obtained from Susan Sylvester, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707-7921 or by calling 608-266-1099.

Submission of Written Comments

Written comments may also be submitted via U.S. mail to Ms. Susan Sylvester, Bureau of Watershed Management, P.O. Box 7921; Madison, WI 53707-7921 or by email to [e-mail] . Comments may be submitted until February 5, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearing.

Analysis Prepared by the Department of Natural Resources

Statutes interpreted

Sections 30.12 , 30.19 , 281.15 , 281.17 , 281.41 , 283.13 , 283.31 , 283.37 , 283.39 , 281.49 and 282.55 , Stats.

Statutory authority

Sections 30.12 , 30.19 , 227.11 , 281.11 , 281.12 , 281.15 , 281.17 , 281.41 , 283.11 , 282.13 , 283.31 , 283.37 , 283.39 , 283.49 , and 283.55 , Stats.

Explanation of agency authority

The Department has authority under ss 30.12, 30.19, 227.11, 281.11, 281.12, 281.15, 281.17, 281.41, 283.11, 283.13, 283.31, 283.37, 283.39, 283.49, and 283.55, Stats., to promulgate rules and clarify process.

Related statute or rule

These rules relate directly to regulation of activities in wastewater discharge permits or in navigable waters under ch. 30 , Stats., waters designations in ch. NR 1 , and the NR 100, 200, and 300 series rules.

Plain language analysis

The purpose of this rule update is to modify the existing rules to clarify, make consistent with federal regulations, clean up typographical errors, incorporate technology advances, or make minor modifications. The Bureau of Watershed Management has not undertaken the effort to clean up our rules and therefore this rule package is fairly large since several rules affect the Bureau and need to be updated and corrected.

NR 102 is the chapter that contains the listing waterbodies for outstanding or exceptional resource waters. There are several recommended pages of changes (13 pages in the ORDER). This code has primarily been changed to reflect typographical errors in the original listing of these waters, or if the water exists in more than one county, we have added the other county. To be consistent with the addition of two Wild Rivers to State Statute s. 30.26 in early 2009, language was refined and portions of these two existing ORW waters were moved to the Wild Rivers section of NR 102; however, this does not affect their status as ORW. With the exception of the 2009 statutory additions, there are no additions of new waterbodies, only corrections to the ones currently on the list.

NR 103 is the chapter that contains Water Quality Standards for Wetlands and the changes proposed are technical changes to reflect s. 281.36 , Wis. Stat., a statute that was adopted after the rule went into effect.

NR 105 is the chapter that contains surface water quality criteria and secondary values for toxic substances. The changes requested for this chapter are typographical errors or values that have been updated because of new analytical methods. The changes to Table 9 in ch. NR 105 are done to reflect changes to Federal drinking water standards and are consistent with changes that were made in ch. NR 809 . All other numerical changes are typographical errors.

NR 106 is the chapter which contains procedures for Calculating Water Quality Effluent Limits for substances discharged to surface waters. Changes to this chapter are primarily for clarification or typographical errors.

NR 108 is the chapter which outlines the Requirements for Plans and Specifications submittals for reviewable projects and operations of community water systems, sewerage systems and industrial wastewater facilities. The changes include technology updates requesting electronic submittals in addition to paper copies of final plans and specifications. To be consistent with federal regulations, the department proposes modification to s. NR 108.04 (5) .

NR 110 is the chapter containing requirements for Sewerage Systems. Most of this rule package contains changes to this chapter, which needs to be updated primarily because of confusion on how to implement this rule (22 pages in the ORDER). Many changes are recommended to clarify the rule; other changes are because of technological updates. Revisions to this chapter are proposed to revise and clarify requirements for lift station design, influent and effluent flow monitoring, and to clarify language which has been commonly misunderstood. While these changes are voluminous, they reflect current practice and are not substantial, they are minor changes that make this rule more understandable and easier to implement. In 1997, the Department prepared draft code revisions for lift station requirements in ch. NR 110 , and conducted a public hearing and obtained public comments. But the rule making effort was then placed on hold due to workload issues, and the code revision process was effectively terminated prior to promulgation. Many of the NR 110 code changes now being proposed were obtained from this 1997 work effort.

NR 114 is the chapter for Certification Requirements for Waterworks, Wastewater Treatment Plant, Septage Servicing and Water System Operations. Proposed changes to this chapter include adding a "Master Operator" category to the Septage Servicing subchapter II. This is a category that the stakeholders have asked for to develop a succession of responsibilities. This has been an issue for several years and this code change will help satisfy the needs of the stakeholders.

NR 200 is the chapter for Application for Discharge Permits and Water Quality Standards Variances. The proposed change to this rule is a technological update for the submission of permit applications on the web-based application system. The other changes are typographical or to be consistent with federal regulations.

NR 203 is the chapter for WPDES Public Participation Procedures. The proposed change to this code is to make it consistent with federal regulations.

NR 205 is the chapter for General Provisions in WPDES permits. The proposed technology update is to require electronic submission of discharge monitoring reports. Other changes are clarification of unscheduled bypassing of wastewater or to be consistent with federal regulations.

NR 210 is the chapter for Sewage Treatment Works. The minor clarification changes are to reflect date changes or clarification of terms. A modification is proposed to require that emergency operating provisions (such as stand-by generator or pump) be provided for all wastewater pumping stations.

NR 214 is the chapter for Land Treatment of Industrial Liquid Waste By-Product Solids and Sludges. One proposed change is to clarify subsurface systems to be consistent with ch. COMM 83.

NR 299 is the chapter containing the Water Quality Certification requirements. The proposed changes to this chapter are technical changes to reflect s. 281.36 , a statute that was adopted after the rule went into effect and to provide clarity with respect to the original intent of the rule.

NR 328 is the chapter for Shore Erosion Control Structures in Navigable Waterways. The recommended changes are to provide clarification or typographical changes.

NR 341 is the chapter for Grading on the Bank of Navigable Waterways. The proposed changes to this rule are to provide typographical changes.

NR 812 is the chapter for Well Construction and Pump Installation. The proposed change to this rule is to correct the code reference to NR 110 made in this proposed rule package.

Comparison with federal regulations

The proposed rule contains minor modification, fixes typographical errors and updates the current rules to be consistent with federal regulations. Some of the revisions are to make our current regulations more consistent with federal regulations under the federal Clean Water Act.

Comparison with rules in adjacent states

These rules are being updated to be consistent with federal regulations so they should be consistent with adjacent states.

Summary of factual data and analytical methodologies

The proposed code revisions are minor in nature, so there are no data collections or extensive research to substantiate the revisions. Some of the minor modifications are to clarify but not substantially revise, technical requirements that are based on standard engineering design methodologies.

Analysis and supporting documents used to determine the effect on small businesses

The existing rule requirements are in place and these proposed changes are minimal to current practices therefore there is no impact anticipated to small businesses. No economic impact report has been requested.

Small Business Impact

The proposed rule changes are not expected to have a significant effect on small business. There are no significant changes to these rules that would affect small businesses.

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses.

Environmental Analysis

The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150 , Wis. Adm. Code.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

This rule revision requires submittal of an electronic version of all plans and specifications, and the electronic submittal of discharge monitoring reports and web-based wastewater permit applications by all Wisconsin Pollutant Discharge Elimination System (WPDES) permittees. Permittees are now required to submit monthly discharge operating reports as part of their WPDES permit requirements. A few WPDES permittees may incur some one-time costs to comply with the electronic form submittal requirements, but the requirements will also provide significant annual cost savings for the Department.

I. STATE FISCAL EFFECT

Cost savings associated with the electronic submission of forms are summarized as follows:

A.   Printing cost savings of $6,300 for no longer having to process 100,000 double-sided pages of monthly discharge monitoring reports.

B.   LTE cost savings of $22,900 (1040 hours x $22/hr = $22,880) for no longer having to review the quality control of the documents before sending them to the third-party contractor that converts paper copy submittals to the Department's electronic database.

C.   Contractual savings of $45,000 for no longer needed to contract with a third-party entity for paper-to-electronic information conversion.

D.   Postage savings of $6,000.

E.   LTE cost savings of $22,900 (1040 hours x $22/hr = $22,880) for no longer having to scan WPDES facility plans and specifications to electronic copies for our database.

In total, annual cost savings are estimated to be $103,100. State expenditures for staff will not increase to cover the program revisions, and there will be no reduction in state revenues associated with state cost decreases.

For Plans and Specification submittals, most facilities hire consultants to do this work and they should have a computer or they could scan the documents and submit a CD of the plans with their paper copy submittal. Minor costs may be passed on to the permittee for this additional service.

II. LOCAL GOVERNMENT FISCAL EFFECT

All municipal WPDES permittees (979) are currently submitting their Compliance Maintenance Annual Report (CMAR) electronically as part of NR 208; therefore, this rule change has no fiscal effect at the local government level.

III. PRIVATE SECTOR IMPACT

The proposed rule package would require all industrial permittees to submit monthly reports electronically to our database.

A.   One-Time Costs

1.   The Department estimates that 50 industrial permittees do not have a computer and will be required to incur one-time costs to buy a computer. Estimated costs for the computer are $1,500 x 50 facilities = $75,000.

2.   Once the industrial permittees go on-line and begin electronic report submittals, the Department estimates that they will achieve overall postal cost savings of $1,200 in the first year.

B.   Annualized Costs

1.   Annualized internet access costs for a new computer user to prepare electronic submittals are based on the estimated use per year: $360 year/facility x 50 facilities = $18,000.

2.   Form completion costs should be the same as sending in a paper copy. It is estimated that it will take the same amount of time for the operator to fill out an electronic submission as they spend on a paper copy.

State fiscal effect

Decrease costs.

Local government fiscal effect

None.

Fund sources affected

GPR, FED.

Agency Contact Person

Susan Sylvester

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearing

Public Instruction

EmR0936 , CR 09-117

NOTICE IS HEREBY GIVEN That pursuant to ss. 118.38 (2) (bm) and 227.11 (2) (a) , Stats., the Department of Public Instruction will hold a public hearing as follows to consider emergency and proposed permanent rules creating section PI 8.01 (4) , relating to waiver of school hours.

Hearing Information

The hearing will be held as follows:

Date and Time   Location

February 1, 2010   Madison
1:00 - 3:00 p.m.   GEF 3 Building
  125 South Webster Street
  Room 041

The hearing site is fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Paul Sandrock, Director, Content and Learning, [phone] or leave a message with the Teletypewriter (TTY) at [phone] at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.

Copies of Rule and Contact Person

The administrative rule and fiscal note are available on the internet at http://dpi.wi.gov/pb/rulespg.html . A copy of the proposed rule and the fiscal estimate also may be obtained by sending an email request to [e-mail] or by writing to:

Lori Slauson, Administrative Rules and Federal Grants Coordinator

Department of Public Instruction

125 South Webster Street

P.O. Box 7841

Madison, WI 53707

Submission of Written Comments

Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than February 5, 2010, will be given the same consideration as testimony presented at the hearing.

Analysis Prepared by Department of Public Instruction

Statute interpreted

Sections 115.01 (10 ) (a) 2. and 3. and 118.38 (2) (bm), Stats.

Statutory authority

Sections 118.38 (2) (bm) and 227.11 (2) (a) , Stats.

Explanation of agency authority

Section 118.38 (2) (bm) , Stats., requires the department to promulgate rules establishing criteria for waiving the requirement to schedule at least the number of hours of direct pupil instruction specified under s. 121.02 (1) (f) 2. , Stats., if school is closed by order of a local health officer, department of health services, or school district administrator under s. 115.01 (10) (a) 2. or 3. , Stats.

Section 227.11 (2) (a) , Stats., gives an agency rule-making authority to interpret the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.

Related statute or rule

Section 121.02 (1) (f) 2. , Stats.

Plain language analysis

2009 Wisconsin Act 42 allows school boards to meet the 180 school day requirement by including the following in the definition of "school day": 1) a school district administrator closing a school due to a threat to the health or safety of pupils or school personnel, unless the school board determines otherwise (this does not include days closed due to inclement weather) and 2) the department of health services (in addition to a local health officer) closing a school.

Notwithstanding these provisions, a school board must still provide the required number of instructional hours under s. 121.02 (1) (f) 2. , Stats. Thus, the Act requires the department to promulgate rules establishing criteria for waiving the required number of hours of direct pupil instruction if a school is closed for either reason stated above.

As required in the Act, the proposed rules will establish criteria for waiving the requirement to schedule at least the number of hours of direct pupil instruction specified under s. 121.02 (1) (f) 2. , Stats., to address either of the above scenarios.

Comparison with federal regulations

None.

Comparison with rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota do not have rules relating to school hours or waiving of school hours.

Summary of factual data and analytical methodologies

The information required in the rule is typical of information requested from school districts that have requested waivers from the school hour standard requirement under s. 121.02 (1) (f) 2. , Stats.

Analysis and supporting documents used to determine effect on small business

N/A.

Anticipated costs incurred by private sector

N/A.

Small Business Impact

The proposed rules are not anticipated to have a fiscal effect on small businesses as defined under s. 227.114 (1) (a) , Stats.

Fiscal Estimate

Summary

The proposed rules establish criteria for waiving the requirement to schedule at least the number of hours of direct pupil instruction specified under s. 121.02 (1) (f) 2. , Stats., if a school is closed by a school district administrator, the Department of Health Services, or the local health officer under s. 115.01 (10) (a) 2. or 3. , Stats.

State fiscal effect

The costs associated with administering requests for these waivers will be absorbed by the department.

Local government fiscal effect

School districts may, but are not required to, apply for a waiver for the required number of hours of direct pupil instruction. The application procedures should not have a fiscal effect. The fiscal effect on a district that receives an approved waiver is indeterminate.

Agency Contact Person

Deborah Mahaffey, Assistant State Superintendent

Division for Academic Excellence

Phone: [phone]

Email: [e-mail] .

Notice of Hearing

Tourism

CR 09-111

NOTICE IS HEREBY GIVEN That pursuant to ss. 41.16 and 227.11 (2) , Stats., the Department of Tourism will hold a public hearing on the proposed rule order to create Chapter Tour 3 relating to grants to municipalities and organizations for regional tourist information centers created under 2009 Wisconsin Act 28 .

Hearing Information

Date:   February 1, 2010

Time:   10:00 a.m.

Location:   201 West Washington Avenue
  1 st Floor Human Resource Conf. Room
  WHEDA Building
  Madison, WI 53708

Submission of Written Comments

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are also urged to submit facts, opinions and arguments in writing as well. Facts, opinions and arguments may also be submitted in writing, without a personal appearance, by mail addressed to: Laura Muenich, Department of Tourism, P.O. Box 8690, Madison, WI 53708-8690 or by email to [e-mail] . Written comments must be received by 4:30 P.M. on February 10, 2010, to be included in the record of rule-making proceedings.

Copies of Proposed Rule

Copies of this proposed rule are available upon request to Laura Muenich, Budget & Policy Analyst, Department of Tourism, P.O. Box 8690, Madison, Wisconsin 53708-8690, or by email to [e-mail] .

Analysis Prepared by the Department of Tourism

Statutes interpreted

Section 41.16 (3) (c) , Stats.

Statutory authority

Sections 41.16 (3) (c) , 227.17 , Stats.

Explanation of agency authority

Section 41.16 (3) (c) , Stats., requires the Department to promulgate rules to administer the grants under this section, including the preparation of an application form.

Related statute or Rule

There are no other statutes or rules other than those listed above.

Plain language analysis

Under the proposed rule, tourist information centers may apply for a grant to seek reimbursement to up to 50 percent of eligible costs. The proposed rule identifies the eligible costs, application procedures, contracts, and reporting requirements.

Comparison with federal regulations

The Department is not aware of any existing or proposed federal legislation on this matter.

Comparison with rules in adjacent states

The Department is not aware of any similar rules in surrounding states.

Summary of factual data and analytical methodologies

The proposed rule was developed by a Department workgroup comprised of the secretary, grant coordinator, customer services manager, and the budget and policy analyst. The group researched other states for applicable laws and rules relating to grants to regional tourist information centers for reimbursement of operating costs. The workgroup also reviewed the rules for the Joint JEM grants.

Analysis and supporting documents used to determine effect on small business

This proposed rule will not affect or impact adversely small businesses.

Section 227.137 , Stats., requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Tourism is not included as an "agency" in this section.

Small Business Impact

These proposed rules will have no effect on small businesses as defined in s. 227.114 (1) , Stats.

Fiscal Estimate

2009 Wisconsin Act 28 created a grant to municipalities and organizations for regional tourist information centers. Eligible applicants may submit an application to request that the department reimburse the applicant for up to 50% of eligible costs incurred to operate a regional tourist information center. The rules will have no fiscal effect on the state.

Agency Contact Person

Laura Muenich, Budget and Policy Analyst

Department of Tourism — P.O. Box 8690

Madison, WI 53708-8690

Telephone: [phone]

E-Mail: [e-mail] .

Notice of Hearing

Veterans Affairs

CR 09-091

NOTICE IS HEREBY GIVEN That pursuant to s. 45.40 (3m) , Stats., and Chapter 227 of the Wisconsin Statutes, the Wisconsin Department of Veterans Affairs will hold a public hearing to consider the creation of section VA 2.01 (1) (u) , (v) , and (3) (d) to (g) , Wis. Adm. Code, relating to the assistance to needy veterans grant program.

Hearing Information

Date and Time:	Location:
February 18, 2010 Thursday At 9:30 a.m.	Wis. Dept. of Veterans Affairs Board Room, 8th Floor 30 West Mifflin Street Madison, Wisconsin

The public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact James A. Stewart at [phone] or [e-mail]

Submission of Written Comments

Written comments may be submitted to James A. Stewart, 30 West Mifflin Street, P.O. Box 7843, Madison, WI 53707-7843. Phone: [phone] E-Mail: jimmy. [e-mail] .

Comments should be submitted no later than March 5, 2010.

Analysis Prepared by the Wisconsin Department of Veterans Affairs

Statute interpreted

Section 45.40 , Stats.

Statutory authority

Section 45.40 (3m) , Stats.

Explanation of agency authority

The department is charged with administering a grant program to assist needy veterans with health care. It provides eligible applicants with dental, hearing and vision care through private health care providers.

Related statute or rule

There is no related statute or rule.

Plain language analysis

The creation of VA 2.01 (1) (u) and VA 2.01 (1) (v) will establish a definition for the vision care assistance available under this program. The creation of VA 2.01 (3) (d), VA 2.01 (3) (e), VA 2.01 (3) (f), and VA 2.01 (3) (g) will establish program limitations for the aid offered through the program. The program is intended to provide health care assistance to those veterans who are not eligible for the federal assistance offered to veterans. The current program rules do not provide program limitations or direction for health care professionals in providing necessary services to eligible veterans. The creation of a definition for "vision care" and the creation of specific program limitations will allow veterans to receive a reasonable modicum of the benefits available to those veterans eligible for federal assistance. All care offered through the program will have monetary and frequency limitations imposed upon the available services.

Comparison with federal regulations

There is no current or pending federal regulation which would provide subsistence or health care aid for the eligible veterans under this program.

Comparison with rules in adjacent states

There are no similar rules in adjacent states.

Summary of factual data and analytical methodologies

Surveys of multiple private vendors of dental care services, hearing care services, and vision care services were undertaken to establish the definition of "vision care" and to establish the frequency and monetary limitations of each service. The United States Department of Veterans Affairs was also contacted to determine what services were offered through that agency and to review costing mechanisms used in the provision of each of the elaborated health care services.

Analysis and supporting documents used to determine effect on small business

No analysis was performed regarding an economic impact statement.

Small Business Impact

These rules do not appear to have any effect upon small businesses, nor any significant fiscal impact upon the private sector.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

The proposed administrative rule establishes the following provisions governing the grant program:

1.   Limit "dental care" not to exceed $1,400 every 5 years.

2.   Limit "hearing care" not to exceed $1,300 per ear every 4 years.

3.   Establish "vision care" not to exceed $400 per year.

Provisions of 2007 Wisconsin Act 20 eliminated caps for dental care, hearing care and vision care and increased the lifetime cap to $7,500. Prior to those changes, the annual cap for dental care was $2,500, $1,500 per hear for hearing care and $500 for vision care. The lifetime cap was $5,000. The authorized funding for the 2007-09 biennium was $1,492,000. Of that amount, expenditures in FY08 were $1,277,700, which left a balance of $214,300 to cover FY09 payments. As a result, the program was closed in October, 2008 (FY08-09 expenditures $1,662,500); the provisions of Act 20 had increased the expenditures more than projected. The authorized funding for 2009-11 biennium is $1,991,500. However, based on the proposed rule changes the estimated demand is $1,493,500 ($711,200+$782,300) which would decrease expenditures by $210,550in FY10 and $287,500 in FY11. Thus the projected biennial savings as a result of the proposed rule changes would be approximately $498,000.

Please contact James A. Stewart, 30 West Mifflin Street, P.O. Box 7843, Madison, WI 53707-7843 or Phone: [phone] or E-Mail: [e-mail] to request a copy of the fiscal estimate.

State fiscal effect

Decrease costs.

Fund sources affected

SEG.

Affected Ch. 20 appropriations

Section 20.485 (2) (vm) , Stats.

Text of Proposed Rules

SECTION 1. VA 2.01 (1) (u) is created to read:

VA 2.01 (1) (u) "Vision care" means provision of one vision examination by a licensed health care provider and provision of corrective eyeware.

SECTION 2. VA 2.01 (1) (v) is created to read:

VA 2.01 (1) (v) "Change in refractive error" means an increase of sphere, cylinder and/or power of at least the following: Sphere Power of + or - .25 diopter; Cylinder Power of + or - .5 diopter; Axis Change of + or - .25 to.75 diopters at 5 degrees, + or – 1 to 2 diopters at 3 degrees or + or – 2.25 or more diopters at 2 degrees.

SECTION 3. VA 2.01 (3) (d) is created to read:

VA 2.01 (3) (d) A dental health care professional must indicate in writing that the dental procedures performed were directly necessary to dental care. Such procedures shall not exceed $500.00 in any consecutive 12 month period except where a full or partial upper and / or a lower denture is required. The grant for such denture or dentures shall not exceed $900 for one or $1,400 for both in any consecutive 60 month period.

SECTION 4. VA 2.01 (3) (e) is created to read:

VA 2.01 (3) (e) Hearing care shall not exceed $200.00 in any consecutive 12 month period except where a left and / or a right hearing aid is required. The grant for each hearing aid shall not exceed $1,300 in any consecutive 48 month period. A participant may obtain a grant to fund an additional or a more costly hearing aid or set of hearing aids and a related examination, if a licensed audiological health care professional identifies, in writing, compelling medical circumstances which have required this added assistance.

SECTION 5. VA 2.01 (3) (f) is created to read:

VA 2.01 (3) (f) A grant for vision care shall not exceed $400.00 in any consecutive 12 month period; however, a participant may obtain a grant for replacement glasses before 12 consecutive months have elapsed if the eyewear is prescribed because of a documented change in refractive error

SECTION 6. VA 2.01 (3) (g) is created to read:

VA 2.01 (3) (g) A participant may obtain a grant for an additional visit to a licensed vision care provider and for a more costly set of corrective eyewear or for an additional set of corrective eyewear where an optometrist or an ophthalmologist identifies in writing a compelling medical circumstance which has required this added assistance.

Agency Contact Person

James A. Stewart, Chief Legal Counsel

30 West Mifflin Street, P.O. Box 7843

Madison, WI 53707-7843

Phone: [phone]

Email: [e-mail]

Notice of Hearing

Veterans Affairs

CR 09-092

NOTICE IS HEREBY GIVEN That pursuant to ss. 45.50 (1) (a) , 45.03 (2) and 45.03 (4) , Stats., and Chapter 227 of the Wisconsin Statutes, the Wisconsin Department of Veterans Affairs will hold a public hearing to consider the repeal of section VA 1.11 (8) and the amendment of section VA 1.11 (11) , Wis. Adm. Code, relating to the duties and responsibilities of the secretary.

Hearing Information

Date and Time:	Location:
February 19, 2010 Friday At 9:45 a.m.	Wis. Dept. of Veterans Affairs Board Room, 8th Floor 30 West Mifflin Street Madison, Wisconsin

The public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact James A. Stewart at [phone] or [e-mail]

Submission of Written Comments

Written comments may be submitted to James A. Stewart, 30 West Mifflin Street, P.O. Box 7843, Madison, WI 53707-7843. Phone: [phone] E-Mail: jimmy. [e-mail] .

Comments should be submitted no later than March 5, 2010.

Analysis Prepared by the Wisconsin Department of Veterans Affairs

Statute interpreted

Section 45.50 (1) (a) , Stats.

Statutory authority

Sections 45.50 (1) (a) , 45.03 (2) and (4) , Stats.

Explanation of agency authority

The department is charged with operating skilled nursing facilities and employing supervisory personnel for these facilities. Skilled nursing facilities require administrators who have met state and federal standards and are licensed to operate a skilled nursing facility. The department has created the division of homes and an administrator to supervise the operation of these facilities. The board has determined as a matter of policy that all commandants and the division administrator should be licensed to operate skilled nursing facilities. The board has also determined that the Secretary should not be required to directly supervise the commandants since the division of homes and the attendant administrator position was created for that purpose.

Related statute or rule

Section 50.04 (2) (a) , Wis. Stats., and s. DHS 132.41 , Wis. Adm. Code. These laws require every skilled nursing facility within the state to operate under the supervision of an administrator licensed under Ch. 456 , Wis. Stats.

Plain language analysis

The amendment of VA 1.11 (1) (a) will limit employment, after January 1, 2011, in the positions of commandant or administrator, division of homes to individuals who are licensed as skilled nursing home administrators by the State of Wisconsin or who obtain such licensure within 90 days of initiating employment in the position. The department believes that this requirement will provide better management and more accountability for the skilled nursing facilities. The repeal of VA 1.11 (8) will realign the direction of the commandants from direct supervision by the Secretary to direct supervision by the Administrator, Division of Homes.

Comparison with federal regulations

There is no current or pending federal regulation which would provide subsistence or health care aid for the eligible veterans under this program.

Comparison with rules in adjacent states

38 CFR 51.210 (2) (i) requires any skilled nursing facility receiving per diem payments from the United States Department of Veterans Affairs to be supervised by an administrator who is licensed by that state. 42 CFR 431.703 requires any skilled nursing facility receiving medical assistance (Medicaid) payments from the United States Department of Health and Human Services to be supervised by an administrator who is licensed by that state. Both skilled nursing facilities currently have administrators licensed as nursing home administrators within the management structure. The proposed rules will ensure that the senior official at all skilled nursing facilities operated by the department, as well as the Administrator, Division of Homes, are licensed in accordance with these requirements.

Illinois:

77 Ill. Admin. Code § 340.1370 (a) (Illinois Veterans' Home Code)

(a) There shall be a full-time administrator licensed under the Nursing Home Administrators Licensing and Disciplinary Act for each licensed facility. The licensee will report any change of administrator to the Department, within five days.

Iowa:

Iowa Code § 35D.13(2) (Veterans Home)

2. The commandant shall be a resident of the state of Iowa who served in the armed forces of the United States and was honorably discharged, and is a licensed nursing home administrator.

Michigan:

MCL § 36.10 (Michigan's Veterans' Facility)

Sec. 10. The board of managers shall appoint a commandant for the home, who shall be an ex-officer, soldier, sailor, or marine, whose salary shall be such amount as shall be appropriated by the legislature, and who shall nominate, for the action of the board of managers, all necessary subordinate officers, who shall also be ex-officers, soldiers, sailors, or marines, who may be dismissed by the commandant for inefficiency or misconduct. In case of every removal, a detailed statement of the case shall be reported to the board of managers by the commandant. No member or former member of the board of managers shall be eligible to election or appointment as commandant of the facility until the expiration of at least 1 year from the date of the end of his term as member of the board of managers or the date of his resignation as such member.

Mich. Admin. Code R 325.20111(2) (Licensing of Nursing Homes)

(2) The governing body shall appoint a licensed nursing home administrator and shall delegate to the administrator the responsibility for operating the home in accordance with policies established by the governing body. An administrator and all other persons in supervisory positions shall be not less than 18 years of age.

Minnesota:

Minn. R. 9050.0030(A) (Veterans Homes)

The commissioner of veterans affairs shall ensure compliance by the facility and staff with applicable statutes, with applicable rules of the Minnesota Department of Health and the Minnesota Department of Human Services, and with applicable health, safety, sanitation, building, zoning, and operations codes, including the following:

A.   Minnesota Department of Health licensure and operations requirements in chapters 4655 and 4660 and Minnesota Statutes, sections 144.50 to 144.56 and 144A.02 to 144A.10.

Minn. R. 4655.1200 (Boarding Care Homes)

Subpart 1. The licensee in each nursing home or boarding care home shall be responsible for its management, control, and operation.

Subp. 2. The licensee shall develop written bylaws and/or policies which shall be available to all members of the governing body and shall assume full legal responsibility for matters under its control, for the quality of care rendered and for compliance with applicable laws and rules of legally authorized agencies. The responsibilities of the licensee shall include:

A.   Full disclosure of each person having an interest of ten percent or more of the ownership of the home to the commissioner of health with any changes promptly reported in writing. In case of corporate ownership, the name and address of each officer and director shall be made known. If the home is organized as a partnership, the name and address of each partner shall be furnished. In the case of a home operated by a lessee, the persons or business entities having an interest in the lessee organization shall be reported and an executed copy of the lease agreement furnished. If the home is operated by the holder of a franchise, disclosure as specified above shall be made as to the franchise holder who shall also furnish an executed copy of the franchise agreement.

B.   Appointment of a licensed nursing home administrator or a person in charge who shall be responsible for the operation of the home in accordance with law and established policies.

C.   The authority to serve as administrator or person in charge shall be delegated in writing.

D.   The administrator of a hospital with a convalescent and nursing care unit may serve both units. See the Nursing Home Administrator Licensing Law, Laws of Minnesota 1969, chapter 770.

E.   Notification of the termination of service of the administrator or the person in charge as well as the appointment of a replacement shall be given within five days in writing to the commissioner of health by the governing body of the home. If a licensed nursing home administrator or person in charge of the boarding care home is not available to assume the position immediately, such notification to the commissioner of health shall include the name of the person temporarily in charge of the home. The governing body of a nursing home shall not employ an individual as the permanent administrator until it is determined that the administrator qualifies for licensure as a nursing home administrator in Minnesota. See the Nursing Home Administrator Licensing Law, Laws of Minnesota 1969, chapter 770.

F.   Provision of a competent staff and maintenance of professional standards in the care of patients and residents.

G.   Employment of qualified personnel. There shall be sufficient personnel to provide the basic services such as food service, housekeeping, laundry, and plant maintenance. Employees or volunteers under 18 years of age shall be under direct supervision.

H.   Provision of facilities, equipment, and supplies for care consistent with the needs of the patients and residents.

I.   Provision of evidence of adequate financing, proper administration of funds, and the maintenance of required statistics.

Only a licensee is responsible for the management, control and operation of a nursing home.

Summary of factual data and analytical methodologies

The department commissioned a report on the operation of its skilled nursing facilities by an independent consulting group, Pathways Health Services, Inc. The report reviewed the supervision of both facilities, as well as the supervision provided by the Administrator, Division of Homes. The report identified issues ensuring compliance with health care requirements, interaction with health care inspectors and advocacy for appropriate budget and staffing based on the current organizational structure. The report made recommendations that all commandants and the Administrator, Division of Homes be licensed. The Board has also received testimony from a member of its Long Term Care Committee who is a licensed nursing home administrator in Wisconsin. The testimony identified similar concerns and concurred with the solutions offered in the Pathways report. The Board has adopted the recommendation related to commandants and the Administrator, Division of Homes being licensed as nursing home administrators.

Analysis and supporting documents used to determine effect on small business

No analysis was performed regarding an economic impact statement.

Small Business Impact

These rules do not appear to have any effect upon small businesses, nor any significant fiscal impact upon the private sector.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

The proposed amendment will require that any individual employed as a commandant or as the administrator for the division of the Wisconsin Veterans Homes (WVH), shall be licensed under chapter 456 of the Wisconsin Statues or secure such licensure within 90 days of initiating employment. The proposed repeal will realign the direction of commandants from direct supervision by the secretary to direct supervision by the WVH's division administrator.

The proposed changes will have no fiscal effect on the department.

Please contact James A. Stewart, 30 West Mifflin Street, P.O. Box 7843, Madison, WI 53707-7843 or Phone: [phone] or E-Mail: [e-mail] to request a copy of the fiscal estimate.

State fiscal effect

None.

Text of Proposed Rules

SECTION 1. VA 1.11 (1) is amended to read:

VA 1.11 (1) Employ a commandant s for the Wisconsin veterans home s , designate an employee of the department as deputy secretary, and appoint such persons as may be necessary to carry out the functions of the department. Any individual employed as a commandant or as the administrator for the division of homes, after January 1, 2011, shall be licensed under Chapter 456 of the Wisconsin Statutes or secure such licensure within 90 days of initiating employment as a commandant or administrator of the division of homes.

SECTION 2. VA 1.11 (8) is repealed.

Agency Contact Person

James A. Stewart, Chief Legal Counsel

30 West Mifflin Street, P.O. Box 7843

Madison, WI 53707-7843

Phone: [phone]

EMail: [e-mail]