S&B Erosion and Sediment Control, Post-Construction Stormwater Advisory Council Meeting Summaries

Tuesday, May 5, 2009, 9:30 a.m. to 3 p.m., Community Room at the Westport Administration Offices, 5387 Mary Lake Road. Waunakee, Wisconsin

Council Member Attendance: Art Biesek - A; John Czerepinski - A; René Gagner - P; Scott Godfrey - P; Ed Hammer, co-chair - P; Josh Harder - P; Gil Layton - P; Mary Anne Lowndes - P; Stan Martenson - P; Mary Jo Webster - P; Tom Wilson, chair - P; Curt Witynski - P.

Department of Commerce Staff:  Lynita Docken, Robert DuPont, Brian Ferris, Brad Johnson, Lenny Kanter, Jim Quast, Tim Ryan, and Norma Sampson.

Guests: Jim Boullion, Associated General Contractors of Wisconsin, Pat Stevens, Wisconsin Builders Association, and Peter Tonn, Silt Sock Erosion Control Products

Welcome, introductions, housekeeping and review agenda
Chair Tom Wilson opened the meeting by welcoming the Erosion and Stormwater Code Council. After member and guest introduced themselves, Wilson asked for changes or additions to the agenda.

Review previous meeting’s progress report
The Council approved the October 7, 2008 progress report with corrections.

Ed Hammer asked if the Department of Natural Resources had compiled the fiscal numbers relating to the administration of NR 216. Mary Ann Lowndes had brought the 2003 data and copies were made and distributed to Council members.

Department updates
Bob DuPont updated the Council members and visitors on the following:

• Department of Commerce’s budget – The legislature’s Joint Committee on Finance is reviewing the department’s budget. The committee is recommending that Commerce allocate 2 of its 11 vacant positions to staff the electrical inspection program.
• Electrical program rules – The proposed rules, including rules for a statewide inspection system, are at the public hearing stage. Similar to what is being proposed for erosion and sediment control, the local municipality could become an “electrical inspection agency.” The proposed “inspection agency” system will become effective fall, 2010.
• Emergency rule requiring registration of building contractors – Secretary Leinenkugel issued an emergency rule March 2, 2009, requiring building contractors to be registered with Commerce by July 1, 2009. The registration program will boost the department’s communication, education and oversight efforts with contractors and is a cooperative effort with the departments of Workforce Development and Revenue to manage the misclassification of workers.

Overview of changes in the proposed rule draft
Bob discussed some of the changes in the proposed rule draft, including the following:

• The Notice of Intent (NOI) comes before the Construction Land-Disturbing Permit, so an owner must file the NOI before he/she can obtain the permit. The NOI will be filed electronically with the department.
• A process for becoming an erosion and sediment control inspection agency has been developed.
• Sites where land disturbing building construction activity of one or more acres occurs will be inspected by a certified erosion and sediment control inspector.
• The majority of the post-construction stormwater management text has been removed from the proposed rule package because the department does not have authority over it. Commerce and DNR are still discussing how to partner to manage stormwater on a long-term basis and are considering a phased approach.

A discussion ensued about the confusion that occurs around when to get a permit from Commerce and when to get one from DNR. Bob reiterated that under the statutes, Commerce only has authority for building construction sites. 

Review and discuss proposed rule draft
Lynita facilitated a discussion of the entire proposed rule draft of Comm 60 that was prepared by staff. She asked Council members to review the draft by page by page. The Council highlighted the following areas:

• Erosion and sediment control (ESC) inspector credentialing process – Discussion focused on grandfathering in the current soil inspector, continuing education requirements and the exam process.
• Local ordinances – The Council recommended not changing the stormwater standard for post-construction stormwater.
• Definitions for Chapter Comm 60 – Lynita used a PowerPoint presentation to review the definitions for building construction site, disturbed area and owner’s property. The presentation also walked Council members through the notice of intent (NOI) and construction land-disturbing permit process.
• Notice of intent (NOI) – Concern was expressed about database access for the NOI process and that the Construction Land-Disturbing Permit cannot be issued until 7 days after the NOI is filed.
• Construction land-disturbing permit – The Council recommended including the date the NOI was filed in the permit format.
• Erosion and sediment control plan – Recommendations included requiring a scale or dimensional drawing and that the plan shows the existing stormwater inlets that are within 300 feet of the disturbed area.
• Control practices and products approval – The Council recommended regulating the practice and the required products.
• Mandated practices – The Council recommended deleting “existing for more than 7 days” from par. (f).

Department staff will review the Council’s recommendations and distribute a revised proposed rule draft before the next Council meeting.

Meeting adjourned.

Next meeting
Thursday, July 16, 2009, 9:30 am to 3:00 p.m., in the Community Room at the Westport Administrative Offices, 5387 Mary Lake Road, Waunakee, Wisconsin. The meeting has been cancelled because the 2009 Wisconsin Budget Act transferred the Commercial Building Construction Site Soil Erosion Program to the Department of Natural Resources.

• The Wisconsin Building Safety Network had an annual meeting September 24, 2008, in Pewaukee. At the meeting, the City of Appleton discussed its erosion and sediment control and post-construction stormwater management program.
• The Governor appointed Richard Leinekugel as Secretary of the Department effective September 5, 2008.
• The Department was not selected for a federal energy grant. (This was the grant that the department and Governor’s Office had collaborated on.)
• The Department’s fee increase rule package became effective December 1, 2008. The commercial builders’ fee was set at $200, and will stand until this code package goes into effect.

• Uniform code – The Council discussed the uniformity of the code and coordination with the Uniform Dwelling Code and Commercial Building Code.
• Maximum extent possible (MEP) –The Council suggested expanding the MEP determination process to include erosion and sediment control.
• Scope – The Council recommended inserting “construction” into the proposed scope language.
• Local ordinances – The Council proposed limiting the ordinances to those that are more stringent than the chapter’s standards and to include language that the ordinance was in effect before a certain date.
• Delegated municipalities – The Council asked if a municipality could elect to administer only erosion and sediment control, and phase in stormwater at a later date. Scott Godfry pointed to his county and the way it handles septic plans and inspections. He said it is more cost-effective to let the state review plans instead of hiring an engineer; however, the county is happy to handle the inspections. The Council recommended writing the code language to allow flexibility for municipalities.
• Land-disturbing permit – The Council proposed adding language allowing the administering agency to request additional information before denying the application.

Review previous meeting’s progress report
Ed Hammer proposed developing a process for achieving “consensus” because of concern with the words “council agreed” and council members “spoke in favor of” in the progress report of the June 6 meeting.

Ed also requested a breakdown of work – notice of intents (NOIs) – by county and municipalities, and if not NOIs, a list of commercial building projects to give the Council a better sense of the economic impact of the proposed rule changes.

Bob DuPont said the department will try to collect this information adding that it is decentralized and may take some time. During the ensuing discussion, he pointed out that before going to public hearing, the department would need to determine the economic effect of the proposal.

As a follow up to Ed’s “consensus” process question, Gil Layton asked if the Council votes. Lynita and Bob explained that advisory councils rarely vote nor do they follow Robert’s Rules of Order. However, the chair will ask members if they have concerns and will ask them to discuss their concerns.

Lynita asked if there were specific items in the previous meeting’s progress report that should be changed. Council members recommended substituting more general words such as “discussed” or “suggested” for “agreed” and “spoke in favor of.” Josh Harder pointed out that the Dane County ordinance was approved in 2001 instead of 2002. These changes will be made in the June 6 meeting progress report.

Election of chair and vice chair
Lynita discussed the duties of the chair and vice chair and opened the floor for nominations. Stan Martenson nominated Tom Wilson for chair and Ed Hammer for vice chair.

Tom and Ed accepted the nomination followed by unanimous consent of Council members present. Lynita turned the meeting over to chair Tom Wilson.

Department updates
Bob DuPont updated the Council members and visitors on the following:

• The Wisconsin Building Safety Network annual meeting will have a session on erosion control and stormwater management. The meeting is set for September 24, 2008, in Pewaukee, and Council members or their counterparts are encouraged to attend.
• Aaron Olver, deputy secretary, will temporarily oversee the Department of Commerce following Secretary Jack Fisher’s resignation. Zach Brandon of Madison has been named the department’s new executive assistant and will serve as liaison to the Governor’s Office.
• The Department collaborated with the Governor’s Office on an application for a federal energy grant of $500,000. The grant proposal focused on energy reductions in building construction and maintenance. Grant award announcements are expected in late August.

Bob discussed the timeline for the erosion control and stormwater management project with the Council. He proposed revising it to give the Council more time to discuss concepts and review draft code. Bob said the Department plans to have a draft ready for the Council’s October meeting.

Gil Layton reported on his work with Tim Ryan to develop a list of products approved by the Department for erosion control.

Discussion of the rules and steps in the soil erosion and sediment control regulatory process
Lynita reviewed the “Rules and Steps in the Erosion and Sediment Control Regulatory Process” document that was prepared by staff. She asked Council members to brainstorm and list their areas of concerns in developing code for erosion and sediment control and stormwater management. Discussion ensued, and Council members’ comments were recorded and are attached, PDF file.

Meeting adjourned.

Next meeting: Tuesday, October 7, 2008, 9:30 am to 3 p.m.. Community Room at the Westport Administrative Offices, 5387 Mary Lake Road, Waunakee, WI

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