State Budget: Department of Natural Resources

With a few exceptions, the debate over the Department of Natural Resources (DNR) budget was mostly pedestrian. The one exception was the proposal by the governor to remove rulemaking and policymaking authority of the Natural Resources Board, which in effect would have made them merely an advisory council. A firestorm of opposition by conservation and environmental groups resulted in the Joint Finance Committee (JFC) removing the governor’s provision, much to the disappointment of the business community.

Other noteworthy initiatives included the substantial relaxation of shoreland zoning programs for nonconforming structures, limits to the stewardship program, the phase-out of the petroleum environmental cleanup program (PECFA) and changes to environmental improvement fund.

There were also significant debates relating to the elimination of 29 DNR educator and scientist positions. Overall, the budget reduced DNR positions from 2,642 to 2,549, a reduction of 93, many of which were vacancies. Funding for the department also was reduced from $1.15 billion to $1.12 billion over the biennium, amounting to a 2.8% funding reduction.

Natural Resources Board

As noted, Governor Walker proposed making the Natural Resources Board (NRB) advisory. Critics of the change argue such a move would lessen opportunities for citizen participation, cause less transparency, or eliminate needed checks and balances to DNR actions. Business groups responded that such an assertion was unfounded given the statutory process that requires all DNR actions be subject to rigorous notice and comment requirements under Chapter 227 administrative procedures provisions.

The debate in many respects mirrored the divisive debates over whether the DNR secretary should be appointed by the governor or the NRB. In that debate, Gov. Tommy Thompson prevailed with the enactment of legislation, which made the secretary a gubernatorial appointed position. In this budget debate, however, environmental groups won the day by defeating Gov. Walker’s proposal to make the NRB advisory.

Shoreland Zoning Standards and Ordinances

JFC made significant changes to requirements relating to county shoreland zoning ordinances and by DNR. They deleted the reference to “buildings” for the purposes of setbacks and instead provided a new definition for “structure.”

The new law specifies that DNR, or a county shoreland zoning ordinance, may not impair the interest of a landowner in shoreland property with regard to several aspects land-use:

  • Lighting: DNR and counties may not require approval to install or maintain outdoor lighting or otherwise prohibit and regulate lighting designed or intended for residential use.
  • Nonconforming Structures: DNR and counties cannot require approval or impose fees or otherwise prohibit or regulate the maintenance, repair, replacement or remodeling of a nonconforming structure if the activity does not expand the footprint of the structure.
  • Vertical Expansion: DNR counties may also not require any approval or impose fees or otherwise prohibit or regulate the vertical expansion of a nonconforming structure if the expansion does not exceed 35 feet above grade level.

DNR or an ordinance cannot require inspections and upgrades as conditions for sale or transfer of a structured. The provisions also prohibit the regulation of certain impervious surfaces. County shoreland zoning ordinances may not regulate activities more restrictively than DNR shoreland zoning administrative rules. County zoning ordinances may also not require vegetation buffer zones under certain circumstances.

County shoreland zoning ordinances, construction site erosion control and storm water management zoning ordinances, or wetland zoning ordinances will not apply to lands adjacent to artificially constructed drainage ditches, ponds or storm water retention basins that are not hydrologically connected to a natural navigable body of water.

In addition, JFC added provisions to the statute that exempts construction or placement of culverts, as well as their maintenance, from waterway permitting requirements. If a culvert is replacing an existing culvert and is placed substantially in the same location replacement culverts must be installed using best management practices. Also pertaining to water management, JFC included budget provisions restricting the authority of Dane County with respect to area water quality management planning, including the requirements that DNR approve or reject proposed revisions to any area wide water quality management plan for Dane County.

JFC also authorized a municipality to request an extension of water or sewer services from another municipality for areas not already having such services. The provision contains various requirements relating to such requests; for example, a requirement that the water or sewer utility approve or disapprove the request in writing within 45 days. Requests cannot be disapproved less the utility has insufficient capacity to serve the subject area or if the request will have a significant adverse effect on utility. An amendment passed by the Senate and adopted into the budget, however, limited these provisions to Kenosha County.

JFC adopted provisions that limit towns and counties from imposing requirements that are expressly preempted by federal or state law as conditions for proving a conditional use permit. However, it appears this provision is a mere restatement of existing law.

This provision also prohibits any town or county from imposing insurance requirements on an operator of an interstate hazardous liquid pipeline if the pipeline company has comprehensive general liability coverage for sudden and accidental pollution.

Relating to land grants, the governor proposed a moratorium on land acquisition subprogram linked to reducing the level of debt service. Based on the administration projections, this would institute a moratorium until 2028. Under the Warren Knowles- Gaylord Nelson stewardship program, DNR requires land and provides grants to local units of government and nonprofit conservation organizations for land acquisition, easements, and nature-based outdoor recreational property development activities.

JFC deleted the governor’s proposal and instead specified that DNR may not obligate more than $33.3 million in each year from 2015-16 through 2019-20 under the reauthorized stewardship program. They also reduced the amount of total bonding authority from $1.365 to $1.277 billion.

Under environmental improvement fund, the governor’s budget prohibited Petroleum Environmental Cleanup Fund Award (PECFA) eligibility for new sites after February 3, 2015. Costs incurred at eligible sites after June 30, 2017, would ineligible for reimbursement under the program. JFC modified the sunset dates to July 1, 2017 (instead of February 3, 2015) and required the owner or operator to submit a claim for reimbursement within 180 days after incurring the eligible costs, or by the first day of the seventh month after the effective date of the budget, whichever is later. Claims missing those deadlines would not be eligible for reimbursement.

Also, the governor proposed changes to the environmental financing programs for local governments: the Clean Water Fund Program (CWFP) and the Safe Drinking Water Loan Program (SDWLP). Under the SDWLP, the governor proposed to increase general obligation bonding authority of $7.5 million. JFC voted instead to increase bonding authority by $5.3 million, which is based on a federal funding level of $37.7 million over two years.

The governor’s budget expanded eligibility under the SDWLP to private owners of community water systems and nonprofit noncommunity water systems. JFC voted unanimously to expand eligibility instead to just private owners of community water system for a municipality. In addition, JFC voted maintain eligibility of the principal forgiveness component of the program and not expand it to private owners.

Lastly, the governor’s proposal required that in order for the municipality to be eligible for a reduced interest rate under the CWFP, two-thirds of the initial wastewater flow for a new wastewater collection systems be from residences that were in existence for 20 years prior to the application’s submissions date to DNR.