Wisconsin’s New Approach to Land Use Controls Presented by Mark F. Giesfeldt Wisconsin Department of Natural Resources

2006 Brownfields Legislation Act 418 and s , Wis. Stats. Effective June 3, 2006

New “Approach” For Land Use Controls (LUCs) Ensures limitations clearly run with the land and are enforceable Ensures limitations clearly run with the land and are enforceable Provides a more accessible means to inform the public Provides a more accessible means to inform the public

Applies to Cleanups Overseen by Departments of: Commerce (low/medium risk LUST sites) Commerce (low/medium risk LUST sites) Agriculture, Trade & Consumer Protection (agrichemical facilities) Agriculture, Trade & Consumer Protection (agrichemical facilities) Natural Resources (everything else) Natural Resources (everything else)

Before Legislation: Relied on deed restrictions to ensure engineering controls or other limitations remain a protective option Relied on deed restrictions to ensure engineering controls or other limitations remain a protective option Since 2002 used web and GIS system to track LUCs Since 2002 used web and GIS system to track LUCs Many sites in regulatory limbo: cleaned up but no deed restriction filed Many sites in regulatory limbo: cleaned up but no deed restriction filed

Brownfields Study Group (BFSG) Established by the Legislature in 1998 Established by the Legislature in 1998 Stakeholder policy advisory group Stakeholder policy advisory group Took up the issue of LUC enforceability and access to information Took up the issue of LUC enforceability and access to information Considered the Uniform Environmental Covenants Act (UECA) Considered the Uniform Environmental Covenants Act (UECA)

Brownfields Study Group set goals for new effort: Streamline administrative process Streamline administrative process Decrease sites in regulatory limbo Decrease sites in regulatory limbo Remove negative perception of deed encumbrances Remove negative perception of deed encumbrances Enhance public access Enhance public access Clarify responsibility Clarify responsibility

BFSG Agreed with UECA Goals, However: Too administratively challenging Too administratively challenging Would slow down brownfields cleanups Would slow down brownfields cleanups Increase costs of environmental cleanups Increase costs of environmental cleanups Does not enhance public access to information Does not enhance public access to information

Wisconsin’s General Approach Rely on specific state law rather than restrictions on deed Rely on specific state law rather than restrictions on deed Serves dual purpose of enforceability and public notice Serves dual purpose of enforceability and public notice Consistent with Wisconsin’s approach to licensed landfills (1969) and voluntary party liability exemption (1994) obligations – those obligations run with the land Consistent with Wisconsin’s approach to licensed landfills (1969) and voluntary party liability exemption (1994) obligations – those obligations run with the land

Wisconsin’s General Approach (con’t) Applies to all cleanups regardless of agency or type of site Applies to all cleanups regardless of agency or type of site Runs with land unless another party agrees to responsibility Runs with land unless another party agrees to responsibility Is publicly available on the internet Is publicly available on the internet Requires state approval to change or affect LUC, for a few Requires state approval to change or affect LUC, for a few

Wisconsin’s General Approach (con’t) Bi-partisan support in legislature, including Bi-partisan support in legislature, including Realtors Realtors Conservation groups Conservation groups Industry Industry Local governments Local governments Others Others

LUCs are placed on properties that: Require an engineering control to maintain protectiveness Require an engineering control to maintain protectiveness Unable to finish site investigation or cleanup due to structural impediment Unable to finish site investigation or cleanup due to structural impediment Other factors such as “industrial” closure Other factors such as “industrial” closure

Implementation How it works: How it works: All limitations listed in state closure letter or Certificate of Completion All limitations listed in state closure letter or Certificate of Completion Maintenance plan is required part of closure package Maintenance plan is required part of closure package One-time fee One-time fee Downloadable documents in “closure package” are on web Downloadable documents in “closure package” are on web Geo location of site is noted on statewide map Geo location of site is noted on statewide map

Some of the contents of the closure package: Closure letter and maintenance plan Closure letter and maintenance plan Copies of the most recent deed Copies of the most recent deed Copy of the certified surveyed map Copy of the certified surveyed map Parcel identification number Parcel identification number

Closure Package (con’t) Geographic position of all properties within the contaminated site boundaries Geographic position of all properties within the contaminated site boundaries A table of analytical results A table of analytical results An isoconcentration map, if required as part of the site investigation (SI) An isoconcentration map, if required as part of the site investigation (SI) A table of the previous four water level elevation measurements A table of the previous four water level elevation measurements For soil contamination, a map showing the location of all soil samples For soil contamination, a map showing the location of all soil samples

Closure Package (con’t) An RP-signed statement that legal descriptions are accurate An RP-signed statement that legal descriptions are accurate A copy of letters sent by the RP to properties with groundwater exceedances A copy of letters sent by the RP to properties with groundwater exceedances A copy of all written notifications of a public street or highway or railroad right-of-way A copy of all written notifications of a public street or highway or railroad right-of-way A list of addresses for all impacted off-site properties A list of addresses for all impacted off-site properties

Thank you For more information please visit our web page at rr/brownfields/legislation.htm