NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Don Swailes at (608) 266-7093 with specific information on your request at least 10 days before the date of the scheduled hearing.

The department assumes the long-term effect of receiving the requirement electronically will be a reduction of the .5 FTE in the Bureau of Drinking and Groundwater that currently performs the related data entry. The result of this revision will be a reduction of .5 FTE and the associated $33,000 in funding.

Written comments on the proposed rule may be submitted to Mr. Dan Swailes, Bureau of Drinking Water and Groundwater, P.O. Box 7921, Madison, WI 53707 no later than August 16, 2004. Written comments will have the same weight and effect as oral statements presented at the hearings. A copy of the proposed rule and fiscal estimate may be obtained from Mr. Swailes.

NOTICE IS HEREBY GIVEN that pursuant to ss. 84.106, 85.16 and 227.11, Stats., and interpreting s. 84.106, Stats., the Department of Transportation will hold a public hearing in Room 901 of the Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, Wisconsin on the 27th day of July, 2004, at 9:00 AM, to consider the amendment of ch. Trans 201 and the creation of ch. Trans 202, Wisconsin Administrative Code, relating to the Wisconsin scenic byways program.

An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.

Parking for persons with disabilities and an accessible entrance are available on the north and south sides of the Hill Farms State Transportation Building.

Statutory authority: ss. 84.106, 85.16 and 227.11, Stats.,

Statutes interpreted: s. 84.106, Stats.

In 1999 Wisconsin Act 9, the Wisconsin Legislature created § 84.106, Stats., mandating that the Department of Transportation develop, implement and administer a state scenic byways program. This statute also directed the Department to promulgate rules for the program consistent with 23 U.S.C. 162 and regulations established under that section. The purpose of this rule making is to adopt rules to create a Wisconsin scenic byways program consistent with the regulations of the Federal Highway Administration (FHWA) for the national scenic byways program published in the Federal Register on May 18, 1995. This rule making will create ch. Trans 202 to implement a Wisconsin scenic byways program. A Scenic Byways Advisory Committee consisting of a representative from the Department of Tourism, Department of Commerce, Department of Natural Resources, Wisconsin State Historical Society, four at-large members appointed by the Secretary of the Department of Transportation and the chairperson of the senate and assembly standing committees having jurisdiction over transportation matters is created to review applications for designation of Wisconsin scenic byways. The nomination procedure must be initiated by at least one local government sponsor. The Scenic Byway Advisory Committee will make recommendations to the Secretary of the Department of Transportation who has the authority to make designation decisions. In Wisconsin, state scenic byways must be state trunk highways other than interstate highways and must have exceptional scenic qualities. The nomination process may involve two stages. In the first stage of the process, an application is reviewed to see if the proposed route has a reasonable potential for designation as a state scenic byway. The second stage of the process will require the development by the local government sponsors of a corridor management plan. The Department of Transportation will monitor the implementation of such plans on designated scenic byways. The proposed rule also creates a new section in ch. Trans 201 to provide for the control of new outdoor advertising signs along state trunk highways designated as state scenic byways.

The Intermodal Surface Transportation Efficiency Act 1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914, mandated the establishment of a national scenic byways program. Section 1047 of the ISTEA set up an advisory committee to assist the U.S. Secretary of Transportation in establishing a national program. The committee was composed of 17 members including a designee of the Administrator of the FHWA, appointees of U.S. Forest Service, the National Park Service, the Bureau of Land Management, the Bureau of Indian Affairs, the U.S. Travel and Tourism Administration of the Department of Commerce, and individuals representing the interests of recreational users of scenic byways, conservationists, the tourism industry, historic preservationists, highway users, state and local highway transportation officials, the motoring public, scenic preservationists, the outdoor advertising industry, and the planning professions. Following the report of the committee, the FHWA adopted an interim policy for the National Scenic Byways Program which was published in the Federal Register on May 18, 1995. (Vol. 60, No. 96, p. 26759) No federal rules have been adopted and the program is administered in accordance with the interim policy.

The policy sets forth criteria for the designation of National Scenic Byways or All-American Roads based on their scenic, historic, recreational, cultural, archeological and/or natural intrinsic qualities. To be designated as a National Scenic Byway, a road or highway must significantly meet at least one of the six intrinsic qualities listed above. To be designated as a All-American Road, the road or highway must meet the criteria for at least two of the six intrinsic qualities. To be designated, the road or highway must safely and conveniently accommodate two-wheel drive automobiles, conventional tour buses and, where feasible, bicycle and pedestrian travel. Designations are made by the U.S. Secretary of Transportation after consultation with the Department of the Interior, Agriculture and Commerce. A panel of six to eight experts designated by the FHWA may assist in the review of highways nominated for designation as National Scenic Byways or All-American Roads.

The policy provides that any highway submitted for designation by state or federal agencies should first be designated as a State Scenic Byway. All nominations for National Scenic Byways or All-American Roads must be submitted by the state agency responsible for administering the state's scenic byway program activities. A corridor management plan must be submitted with each nomination. A corridor management plan is a written document that specifies the actions, procedures, controls, operational practices and administrative strategies to maintain the scenic, historic, recreational, cultural, archeological and natural qualities of the nominated scenic byway. The plan is intended to provide an effective management strategy to balance conservation and enhancement of the byway's intrinsic qualities as well as promotion of tourism and economic development.

Under the federal program states may apply for discretionary grants for the purpose of planning, designing and developing state scenic byways programs, including the development of corridor management plans; developing state scenic byways to make them eligible for designation as National Scenic Byways or All-American Roads; and enhancing or improving designated National Scenic Byways or All-American Roads. All grant applications must be submitted to the FHWA by the state highway agency.

The FHWA regulations also provide that if a state has a state scenic byway program, the state must control outdoor advertising as provided in 23 U.S.C. 131(s) along any highway on the interstate or primary highway system that is designated as a scenic byway under the state's program. The states must apply the same controls to any National Scenic Byway and All-American Road whether or not they are designated as state scenic byways.

The proposed rule is consistent with and follows the FHWA interim policy on the national scenic byway program quite closely. This includes the use of an advisory body to evaluate and make recommendations regarding designation of routes to be added to the program and a two tier nomination process. The rule adopts the definition of intrinsic qualities used by the FHWA policy as criteria for evaluation of potential scenic byways and makes provision for corridor management plans. The rule making also provides for the control of outdoor advertising consistent with the FHWA regulations which require that if a state has a state scenic byway program, the state may not allow the erection of new signs not in conformance with 23 U.S.C. 131(c) along any highway on the interstate or Federal-aid primary system which is designated as a state or national scenic byway or All-American Road.

The states of Iowa, Illinois, Michigan and Minnesota all have established state scenic byways programs as follows:

Michigan: The Michigan byways program is called Michigan Heritage Routes and is mandated by state statute. (MCL 247.951 to 247.958) Heritage routes are limited to state trunk highways. Criteria for selection of heritage routes and procedures for designation were approved by the Legislature but are not promulgated as administrative rules. The program policy identifies three types of heritage routes: historic, scenic or cultural. Nominations for designation are made to the Department of Transportation by local government sponsors. The program encourages local governments and stakeholders to engage in planning for adjacent land uses consistent with the intent of the designation including outdoor advertising signs along scenic heritage routes. The Heritage Route Program dates from June 22, 1993.

Minnesota: The state scenic byways program is managed by the Minnesota Scenic Byways Commission. The Commission was created by a memorandum of understanding between the Department of Transportation, the Department of Natural Resources, Minnesota Historical Society, and the Office of Tourism of the Department of Trade and Economic Development. The MOU became effective June 12, 1992. The Commission is responsible for final designation of routes with the Department of Transportation taking the lead role. Nominations originate locally and were open yearly for the first three years and once every five years thereafter. All categories of public roads are eligible for nomination and local authorities having jurisdiction over the routes must approve designation. The program is organized on the basis of thirteen “recreational landscape" regions identified by the Department of Natural Resources. Outstanding scenic quality with natural or cultural resources representative of each region is the primary criteria for designation. The jurisdictions through which the designated routes pass must have ordinances to control outdoor advertising consistent with 23 U.S.C.131(s). The Minnesota Department of Transportation also enforces the provisions of 23 U.S.C. 131(s).

Illinois: The Illinois scenic byways program is mandated by statute. The program consists of a process for the Illinois Department of Transportation to nominate to the U.S. Department of Transportation routes for designation as National Scenic Byways or All-American Roads. (225 ILCS 440, sec. 14.02) To be nominated, the highways or roads must possess any of the six intrinsic qualities specified by the FHWA; must accommodate 2-wheel drive vehicles and, where feasible, bicycle and pedestrian traffic; have a corridor management plan meeting federal requirements and developed with community input; business and property owners must receive notice from the appropriate local unit of government that a nomination is pending and must have the opportunity to comment; and must not contain sections that traverse business areas. On highways that have received designation as a National Scenic Byway or All-American Road and which are interstate or primary highways, the statute prohibits the erection of new outdoor advertising signs except for those signs permitted by federal law in 23 U.S.C. 131(s). (225 ILCS 440, sec. 5) The statutes creating the Illinois byways program were effective August 2, 1996.

Iowa: The scenic byways program is mandated by statute. (Ch. 306D of the Iowa Statutes) The Iowa Department of Transportation has adopted rules to implement its program. The rules create a scenic byway advisory council comprised of representatives from the Department of Transportation, the Department of Economic Development, the Department of Cultural Affairs, and the Department of Natural Resources. The council selects the routes to be designated after the Iowa Department of Transportation inventories and evaluates applications for designation. There is a two-year cycle for nominations with specific deadlines for key steps in the evaluation process. Primary roads, secondary roads and city streets are eligible for designation as scenic byways and each city and county, through which a route passes, must approve the scenic byway designation. The designation is based on the scenic qualities of the proposed routes. (Ch. 132 of the Iowa Administrative Code) The Iowa legislature also directed the Iowa Department of Transportation to adopt rules to control outdoor advertising along scenic byways in order to comply with federal requirements for implementation of a scenic byways program. (95 Acts, ch. 135, § 4; 306D.4 of the Iowa statutes) In 761-Ch. 117.3 of the Iowa Administrative Code, the rule provides that no new off-premise advertising device may be erected along an interstate, freeway-primary or primary highway that has been designated as a scenic byway if the advertising device will be visible from the highway.

The Secretary of the Department of Transportation appointed a sixteen (16) member advisory group to recommend procedures and criteria for a Wisconsin scenic byways program. The members of the advisory group were: Rep. Sheryl Albers (Joint Committee on Finance); Sen. Roger Breske (Senate Committee on Transportation); Gary Brunner (Department of Transportation); Mary Jo Carson (Department of Commerce); Dennis Fay (Department of Tourism); Richard Dexter (State Historical Society); Kelly Haverkampf (Wisconsin Rural Partners); Martin Holden (Bay Lake Regional Planning Commission); Tom Howells (Wisconsin Motor Carriers Association); Rob Kennedy (Citizens for a Better Environment); Lisie Kitchel (Department of Natural Resources); Larry MacDonald (Mayor, City of Bayfield); Phil Scherer (Transportation Development Association of Wisconsin); Tom Solheim (Rustic Roads Board); Ernie Stetenfeld (AAA of Wisconsin); and Rep. Jeff Stone (Assembly Committee on Transportation). The advisory group unanimously endorsed the following program structure.

A scenic byway should be a state trunk highway; should be at least 30 miles long; should exclude interstate and Corridor 2020 backbone routes; should not be scheduled for or have anticipated improvement projects; should have scenic qualities as its primary characteristic and have local government sponsors to demonstrate local support. A two-step application process was recommended with an initial screening followed by a more formal application. The review of applications should be performed by an advisory body consisting of representatives from the Department of Tourism, Department of Commerce, Department of Natural Resources and the State Historical Society. The advisory group should make recommendations to the Secretary of the Department of Transportation who makes the final decision on designation. The advisory group will also include the chairpersons of the Senate and Assembly standing committees having jurisdiction over transportation matters and two at-large members appointed by the Secretary of the Department of Transportation. Designation as a scenic byway should not inhibit or prevent safety or capacity improvements, stop private development from occurring, invoke or trigger smart growth legislation or requirements, nor should scenic byways be considered rustic roads.

This rule making implements the recommendations of the advisory group.

The provisions of this proposed rule creating a process for the designation of state trunk highways as scenic byways have no direct affect on small businesses. It is expected that designation of a highway segment as a scenic byway will increase tourism to the area which may have an indirect positive effect on local small businesses especially those that provide goods and services to tourists such as restaurants, hotels and motels, gift shops, and similar businesses.

The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands. The designation of a segment of a state trunk highway as a state scenic byway may make a county or municipality eligible to apply for and receive grants of federal funds for enhancement projects related to the scenic byway. The Department estimates that there will be no impact on state or private liabilities or revenues. Administration of the program by the Department will be absorbed by existing staff and resources.

The public record on this proposed rule making will be held open until close of business August 9, 2004, to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Jane Carrola, Department of Transportation, Division of Transportation Investment Management, Bureau of Planning, Room 901, P. O. Box 7913, Madison, WI 53707-7913. You may also contact Ms. Carrola by phone at (608) 266-0649.

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the website: http://www. dot.wisconsin.gov/library/research/law/rulenotices.htm.