November/December 2023 Issue

Also in this issue: Lease, License, or Easement?     |     Energy Grant Awards: Congratulations to Kaukauna Utilities     |     Wisconsin Court Of Appeals Clarifies Appropriate Use of Vacancy Rate in Tax Assessment Matters

Updated DNR Rules Relax Attorney Letter Requirement for Safe Drinking Water and Clean Water Fund Loans

Lawrie J. Kobza , Jared Walker Smith | 12.07.23

Municipalities seeking funding from Wisconsin’s Clean Water Fund Program (CWFP) or Safe Drinking Water Loan Program (SDWLP) must comply with administrative rules governing those programs. The Clean Water Fund Program is governed by NR 162 of the Wisconsin Administrative Code and the Safe Drinking Water Loan Program is governed by NR 166. These rules have just been updated by the Department of Natural Resources (DNR) effective November 1, 2023.

Before the update, both programs required an applicant submit to the DNR a legal opinion on land ownership and acquisition of easements and rights-of-way before financial assistance could be awarded.

In the rule updates, however, this legal opinion requirement for the SDWLP and CWFP has been relaxed. Sections NR 162.055 and NR 166.09 now provide that an applicant requesting CWFP and SDWLP financial assistance must sign and submit a certification regarding ownership of the land or required easements and permits for access to the land on which the project takes place. An attorney opinion is not automatically required. The DNR retains the ability to require the applicant to submit a legal opinion establishing land ownership or easement rights to the project site if the DNR determines a legal opinion is necessary. In that case, the legal opinion may be in addition to or in lieu of an applicant’s certification. Examples of when the DNR may require a legal opinion include projects for which new land is being purchased by the applicant or the applicant is extending its facilities to land on which no municipally owned infrastructure was previously located.

This change to the legal opinion requirement will apply to SDWLP applications filed with the DNR after November 1, 2023. Any utility which submitted a financial assistance application to the DNR prior to November 1 must still comply with prior DNR rules and guidance related to legal opinions for SDWLP financed projects.

The updated NR 166 rule also clarifies that an applicant is not required to submit a land ownership certification or legal opinion for portions of a project that include removal of lead service lines or galvanized pipe on private property. Accordingly, the DNR does not expect an applicant to provide any type of real property opinion or certification related to a private lead service line replacement project that takes place on private property.

These changes to NR 166 and NR 162 were made in response to comments to the proposed NR 166 rule submitted by Boardman Clark on behalf of the Municipal Environmental Group — Water Division (MEG — Water).