League Testifies against Bill Limiting Municipal Raze Powers

Last week, Toni Herkert, the League's Government Affairs Director testified against SB 434, a bill limiting the authority of a municipality to order the razing of certain insured dwellings. Manitowoc Assistant City Attorney Elizabeth Majerus joined Toni in testifying before the Senate Committee on Insurance during a marathon 7-hour public hearing. Staff from the City of Milwaukee and City of Racine also testified against the bill, which is sought by the Wisconsin Insurance Alliance and individual insurance companies.

Read the League's memo opposing SB 434 here.

PFAS Rulemaking Updates

We have seen a flurry of action in the DNR's rulemaking efforts on PFOA and PFOS recently. Below is a summary of pertinent municipal PFAS action.

NR 809 - Sets new drinking water maximum contaminant levels for PFAs including PFOS and PFOA.
Status: Rulemaking on DG-24-19, (SS 089-19) is open until March 3, 2022. The comment period on the draft Economic Impact Analysis is open and the Department of Natural Resources will accept written comments on the EIA until July 31, 2021. The League will be submitting comments on this rule revision.

Comments may be submitted electronically to: DNRNR809Comments@wisconsin.gov
or may be mailed to: Adam D DeWeese – DG/5, Wisconsin Dept. of Natural Resources, P.O. Box 7921, Madison, WI 53707.

NR 809 is also open under another rulemaking order, DG-31-20, (SS 030-21), until September 15, 2023. Under this permanent rulemaking, DNR is establishing drinking water MCLs for 12 additional PFAS substances and combined standards for 4 PFAS. The Natural Resources Board approved this scope statement on June 23, 2021. Read the League's comments on the Scope Statement here.

NR 140 - Sets numerical standards to minimize the concentration of polluting substances in groundwater.

Status: Rulemaking on DG-15-19 (SS 090-19) is open until March 3, 2022. The League submitted written comments on the NR 140 EIA during the public comment period.

NR 105, 106, and 219 - Establishes surface water quality criteria and analytical methods for PFOS and PFOA and procedures in the WPDES permitting program.
Status: The rulemaking for surface water revisions is WY-23-19 and is open until March 3, 2022. (SS 091-19). The Environmental Impact Analysis is currently out for public comment. The comment period runs until August 18, 2021 and the League will be providing comments to the department before the deadline.

Update on Wetland Mitigation Rule and General Permits for filling Small Wetlands

NR 350 - This spring, DNR announced its first major overhaul in nearly 20 years of the rule governing wetland mitigation, NR 350. Wetland mitigation is the requirement to build replacement wetlands or purchase wetland credits when wetlands are impacted by a project. For municipalities this can be anything from road and pipeline projects to industrial park development. Wetland mitigation can be an expensive and time consuming process, so it is important to have a rule that clearly defines the amount, type and process for wetland mitigation.
The League representative on the Wetland Study Council, attorney Paul Kent, provided key input on a number of critical issues, including the following:
  • Clarifying the relationship between state and federal wetland mitigation approvals and specifying the time frames for mitigation decisions
  • Ensuring that “on–site” mitigation was not precluded by clarifying the wetland mitigation sequencing process. For some municipal projects on-site mitigation is the most cost-effective option. The sequencing process was partially defined by statute and it was critical to ensure the flexibility in the statute was preserved by the rule
  • Clarifying the amount of mitigation required and mitigation ratios for mitigation banks and the “in lieu fee” program
  • Reducing the default amount of time required for monitoring of wetland mitigation projects
  • Ensuring that wetland mitigation banks could release credits prior to project completing in accordance with statutory changes. This is critical to encourage bank development given the lengthy time and expense of wetland bank projects.
The rule, linked above, was adopted by the Natural Resources Board in June and will take effect upon completion of legislative review.
General Permit 11 - Wetland General Permit to Discharge Dredged or Fill material into a Wetland of the State for Municipal Development. 
The wetland law requires permits for filling wetlands. For minor or routine activities there is a general permit (GP). These are easier to obtain, cost less, and do not require wetland mitigation. There had been several GPs that could apply to municipal projects, particularly GP 11, but the terms of the permit were very restrictive so this GP was of limited use. As revisions to GP 11 were being considered, the League weighed in on several points. Among the more significant issues were the following:
  • The inclusion of a clarifying statement that the applicant for the GP may be a municipal stormwater or sanitary sewer utility. The term utility had generally been limited to utilities regulated by the Public Service Commission that did not include stormwater or sanitary sewer.
  • A provision for temporary placement or discharge of fill material onto not more than 2 acres of wetlands. This is critical especially for pipeline projects which require temporary placement of pipe or equipment.
  • A provision for maintenance of stormwater treatment features under this GP for stormwater features that are not “directly connected” to navigable waterways and where wetland conversion for stormwater management occurred prior to August 1, 1991. “Directly connected” under this GP means contiguous surface water discharge from a stormwater treatment feature to a navigable waterway during non-storm events (e.g. online pond). While it would have been preferable to eliminate this restriction on maintenance for stormwater features “connected” to navigable waterways, we were successful in limiting the scope of this restriction. 
General Permit 11 was reauthorized with the above League comments on June 1, 2021 and remains effective until May 31, 2021.

DOR Seeks Municipal Feedback on Draft Uniform Municipal Room Tax Return

2021 Wisconsin Act 55, which the league lobbied in support, requires DOR to prepare a uniform local municipal room tax return that online marketplace providers, such as Airbnb, must use when distributing room taxes to municipalities. Effective October 1, 2021, when short-term lodging is sold/furnished in a municipality that imposes a room tax, the marketplace provider must collect the tax and forward it to the municipality along with the form prepared by DOR.

DOR has prepared a draft room tax return form for your review. Read it here.

DOR welcomes your suggestions and feedback on the draft form. Send your comments and suggestions to Nate Weber, Director of Technical Services, Nathaniel.weber@wisconsin.gov.

DOR's goal is to finalize the form and make it available on its website in early August.