SS_017-16 Repeal and recreate Wis. Adm. Code chapters: NR 190 Lake Management Planning Grants, NR 191 Lake Protection and Classification Grants, NR 192 Lake Monitoring Contracts and Citizen Lake Monitoring Network, NR 195 River Protection Grants, & ...

Statement of Scope

Department of Natural Resources

Rule No. :

WY-18-15

Relating to :

Repeal and recreate Wis. Adm. Code chapters : NR 190 Lake Management Planning Grants, NR 191 Lake Protection and Classification Grants, NR 192 Lake Monitoring Contracts and Citizen Lake Monitoring Network, NR 195 River Protection Grants, & NR 198 Aquatic Invasive Species Prevention and Control Grants

Rule Type :

Permanent

1. Finding/nature of emergency (Emergency Rule only):

This action will result in a permanent rule.

2 . Detailed description of the objective of the proposed rule :

The Bureaus of Water Quality and Community Financial Assistance propose to repeal 5 related administrative code chapter s that govern 3 cost-sharing grant programs and recreate one consolidated code chapter . The existing grant programs : Lake Protection, River Protection , and Aquatic Invasive Species (AIS) - a re authorized by ss. 281.68 , 281.69 , 281.70 , 281.71 , 281.72 , and 23.22 (2) (c) , Wis. Stats., and administered under chs . NR 190 , 191 , 192 , 195 , and 198 , Wis. Admin. Codes.

The resulting code chapter will govern a comprehensive surface water grant program . It will establish and clarif y policies t o improve customer service and satisfaction, improve administrative consistency and efficiency, and create better and more cost-effective environmental outcomes that serve local needs and advance Department management objectives for s tate surface waters. Some of the proposed changes will implement recommendations from three Lean Six Sigma projects the Department completed to streamline the application process and create administrative efficiencies.

Grants and contracts under existing administrative codes provide state cost-sharing assistance to nonprofit organizations and governmental units f o r 2 primary activities : ( 1) P lanning projects t o help communities understand the condition of aquatic ecosystems and watersheds , conduct studies , and develop management plans , and ( 2) M anagement projects t o protect and improve water quality and aquatic habitat and prevent and control AIS .

The s tatutes and current administrative codes for these grant programs have evolved incrementally over 2 6 years and currently provide over $6 million a year for local ly- led surface water planning and management. Appropriations for all 3 grant programs come from the Water Resources Account of the Conservatio n Fund ( funded by motor boat gas tax revenues ) . T he D epartment historically has tried to be consistent when creating and revising these rules , but the proposed consolidated rule will be the first fully comprehensive review and update.

The recreated rule also will update citations , references, and notes to appropriate statutes and administrative codes a nd include o ther housekeeping changes. Additional rule changes reasonably related to those discussed here also may be pursued.

3 . Description of existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives :

In consolidating 5 codes , common elements will be merged and revised to establish consistent policies for all grants within statutory limits , allow greate r flexibility for use of grant fund s, and streamline administrative processes. Affected c ode provis ions will include: purpose, applicability, sponsor eligibility, application requirements , and sponsor accountability policies regarding reporting, reimbursement, recordkeeping, purchasing , and audit requirements. The consolidated code will include new application deadlines for some grant types. T he Bureau s inten d to thoroughly engage their customers in the drafting process to ensure the final product co difies sound, workable policy.

P ropos ed specific provisions to ensure better and more cost-effective environmental outcomes include:

A. Grant payment provisions include cost-share rates and eligible and ineligible costs, and establishe s the value of in-kind donated labor, supplies, services , and equipment that grantees may use as match ing value . The different programs have varied m aximum state cost-share rates ( 67% to 75% ) and maximum awards ( $3,000 to $200,000 ), and Lake Planning grants have a ‘lifetime’ cap of $100,000 per lake. The consolidated code will adjust and establish consistent cost share rates and maximum grant awards across programs to the extent possible . The consolidated code will use past program experience to set reasonable maximum cost s for common activities , require bidding for some services , and propose var ied cost - share rates for lower priority or routine activities to assure efficient use of state grant funds .

B. G rant product or deliverable provisions vary, but all programs require a final report describing project results . Existing code s do not specify the format or content of reports and other associated deliverables , which can result in incon sistent and less useful products . The consolidated code will clarify required grant deliverables and specif y the format and content for studies, plans and final reports . These clarifications will facilitate efficient pro ject completion and grant close- out and improv e accountability and grant product utility.

C. Eligible and ineligible activit y provisions general ly descri be the types of activities a project may include , with considerable overlap among the grant types. For some activities , the methods to be used are not clearly identified. The consolidated code will include required protocols and standard methods for the collection and assessment of data to assure consistent and comparable information is generated. Protocols developed in recent years will be codified.

D. M inimum training requir e ments will include performance expectations for volunteers, contractors , and service providers that conduct grant work . These provisions do not exist in current codes. Codi f ying m inimum requirements will assure that grant participants possess the skills to successful ly plan and manage projects consistent with state and federal water management policy.

E. P riorities and criteria for project selection provisions apply statewide and result in one prioritized list of applications for each grant type . The consolidated code will update, clarify , and integrate priorities and selection criteria across all grant types and consistently appl y public access requirements for project eligibility as well as for priority setting. M anagement activities that address prohibited species identified in ch. NR 40 , Wis. Adm. Code , will be designated as higher priorities .

F. Management P lanning is a component of all 3 grant programs and r ecommendations in D epartment -approved plans are eligible for M anagement gr ants . Existing Lakes and AIS grant codes list the elements that must be included in a man agement plan and describe the approval process , but the River grant code does not . The consolidated code will create an integrated planning program with basic streamlined requirements for all management plans to assure consistency, comparability , and compliance with state and federal guidelines . The plan approval processes will be s treamline d and p olicies will be created to accommodate project phasing . These changes will make the programs more efficient and make sponsors eligible for a wider range of funding.

G. M anagement grants implement projects to protect and restore water quality and aquatic habitat and control AIS. Management grants allow a sponsor to implement r ecommendations in an approved management plan. T he consolidated code should allow sponsors to use a single approved plan to access funds from Lake, R iver , and AIS programs , as appropriate . The consolidated code will establish policies that describe best management practices and cost-control measures for common management activities.

H. AIS Maintenance and Containment provisions provide limited after-the-fact financial reimbursement to lake organizations managing an AIS population, usually Eurasian watermilfoil, under a Department –approved plan. Current code limits reimbursement to only the c osts of a n aquatic plant management permit issued under ch. NR 107 or NR 109 , Wis. Adm. Code . The consolidated code will expand eligible activities to include reimbursement for some control , monitoring, plan ning and prevention expenses . Proposed requirements for this subprogram will distin guish between managing to maint ain and contain AIS versus implementing large-scale control projects to try to substantially reduc e or eliminat e large AIS populations.

I. Lake Monitoring Contracts and Citizen Lake Monitoring Network provision s allow the Department to award contracts to support a network of citizen volunteers who monitor lake s . The current ch. NR 192 establishes and describes the network and how contracts can be used . The consolidated code will implement the enabling legislation enacted in 2009 ( s. 281.68(3 ) ( bg ) , Wis. Stats. ) t hat allow contracts to provide support for technical assistance to sponsors of AIS   grants .

Analysis of Policy A lternatives:

The u pdates and changes described above are needed to make surface water grants and contracts consistent with current Wis. Stats. and recently developed streamlining practice s . R equests for variances may increase to allow current practice that varies from existing code . Failure to add s treamlining policies in to the consolidated code would increase customer dissatisfaction and result in t he program continu ing to operate in a way that does not reflect contemporary surface water management needs and Department priorities .

4 . Detailed explanation of statutory authority for the rule :

Section 281.68 (3) , Wis. Stats. , directs the Department to develop rules to administer a lake management planning grant and contract program to provide information and education on the use of lakes and lake ecosystems and water and ecosystem quality , improve water quality assessment , and develop plans to prevent pollution and protect and improve lakes .

Section 281.69 (3) , Wis. Stats. , directs the Department to develop rules for a lake management grant program that will improve or protect lake s and lake ecosystem s quality, classify lakes by use , and implement protection activities for the lakes based on their classification.

Section 281.7 0 (2) , Wis. Stats. , directs the Department to develop rules for a river protection grant program to provide grants for planning and ma nagement projects to protect or improve the ways rivers are used, the quality of water in rivers and riverine ecosystems , and/or the fish populations, aquatic life or fish habitat in rivers.

Section 23 .22 (2) (c) , Wis. Stats. , directs the Department to develop rules for a grant program to control invasive species that specifically includes education and inspection activities at boat landings.

Proposed changes are to a voluntary program so no federal act/regulation or judicial decision authority is affected.

5 . Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule :

28 00 hours for developing rule content

1 200 hours for rulemaking

6 . List with description of all entities that may be affected by the proposed rule :

G rant applicants: Units of local government , Wisconsin t rib es , l ake and r iver o rganization s , and n onprofit organization s will benefit from improved rule clarity and streamlining of grant processes.

Business/Industry: Environmental consultants and service providers that work on lake, river and AIS projects will benefi t from improved rule c larity on role s and expectations.

State Government: The proposed consolidated code will enable Department staff to gain efficiencies in several internal processes, allowing state funds to be used more economically .

Public: L ake/river property owners and users, including boaters and sportsmen, benefit from grant funded projects that improve the water quality and aquatic habitats of the surface water s of Wisconsin.

7 . Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule :

There is no direct comparison with federal regulation. The se are non-regulatory programs . P roposed changes are intended to assist the Department in implementing the goals of the federal Clean Water Act and US Fish and Wildlife Service (USFWS) aquatic invasive species regulations . Under plans filed with the US Environmental Protection Agency (US EPA ) and USFWS, federal funding received by the Department may be awarded through these grant s and state funds awarded through these programs may count as state match to federal funds the Department receives.

8 . Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses) :

The D epartment believes the economic impact of the consolidated rule is at level 3 – little to no economic impact is expected. The impact of the consolidated code will be positive for local organizations that protect or improve surface water s of Wisconsin . Small businesses will be benefited by the proposed changes as grant awards provide consulting opportunities for lake, river, and AIS service providers. Local economies will benefit because improved water quality and decreased aquatic invasive species could result in increased visitor s and visitor spending for lodging, meals, fuel, rental of recreational vehicles, and other expenditures. If the grant funds were not available, many of the proposed protection and restoration activities would not be completed due to lack of local funding for implementation .

The lake monitoring contracts and C itizen L ake M onitoring N etwork are voluntary program s that provide contracts to coordinate citizen - led monitoring. Small business is not directly affected by the proposed consolidated code , though businesses may be benefited by increased opportunities to conduct work and sell goods and services in support of the programs . Therefore, the initial regulatory flexibility analysis will not address rule revisions related to lake monitoring contracts.

9. Anticipated number, month and locations of public hearings:

The Department anticipates holding up to 5 public hearings in summer 2017 , most likely in Madison, Stevens Point, Rhinelander, Spooner , and Waukesha . Hearing s may be held using teleconference technology. The Department will hold hearings to provide an overview of the consolidated code that will replace chs . NR 190 , 191 , 192 , 195 , and 198 , Wis. Adm. Code, and receive input from affected parties around the state.

Contact Person:

Shelly Thomsen

Lakes & Rivers Team Lead er

Bureau of Water Quality

Wisconsin Department of Natural Resources

[phone]

[e-mail]