Section 145.02, Stats. - Provides the department with general authority to establish standards and rules to ensure that buildings and facilities in the state shall be safe, sanitary and safeguard the public health. Section 145.23, Stats. - Authorizes the department to make and enforce rules relating to lot size and lot elevation necessary for proper sanitary conditions in the development and maintenance of subdivisions not served by a public sewer, where provision for such service has not been made. Section 145.245 (7), Stats. - The department shall prepare and publish private on-site wastewater treatment system grant funding tables which specify the maximum state share limitation for various components and costs involved in the rehabilitation or replacement of a private on-site wastewater treatment system based upon minimum size and other requirements specified in the state plumbing code promulgated under s. 145.02, Stats. The maximum state share limitations shall be designed to pay approximately 60 percent of the average allowable cost of private on-site wastewater treatment system rehabilitation or replacement based upon estimated or actual costs of that rehabilitation or replacement. The department shall revise the grant funding tables when it determines that 60 percent of current costs of private on-site wastewater treatment system rehabilitation or replacement exceed the amounts in the grant funding tables by more than 10 percent, except that the department may not revise the grant funding tables more often than once every 2 years. Section 227.11 (2) (a), Stat. - (2) Rule-making authority is expressly conferred on an agency as follows: (a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Related statute or rule: Not applicable.
Plain language analysis: The objective of this rule revision was to review and update administrative rules, SPS 381 to 387 and 391, related to private onsite wastewater treatment systems (POWTS) and the POWTS replacement and rehabilitation financial assistant fund, otherwise known as the Wisconsin Fund. The rule was reviewed to identify and update outdated provisions, to improve language clarity, and to update references and notes as needed.
This rule revision also updates funding tables for the Wisconsin Fund. The Wisconsin Fund is a program that provides grants to offset a portion of the cost for the repair, rehabilitation of existing or failing POWTS. Sixty-seven counties, the City of Franklin, and the Oneida Tribe of Wisconsin participate in the program. The department is currently required under s. 145.245 (7) (c), Stats., to review and update funding tables for the Wisconsin Fund if it is determined that 60 percent of costs for rehabilitating or replacing private sewage systems exceeds the amounts in the grant funding tables by more than 10 percent. The funding tables were last revised in February 1999. In addition, the rule revision incorporates the requirements of 2017 Wisconsin Act 59. With the Act’s repeal of s. 145.245, Stats., the rule revision repeals Chapter SPS 387 - Private Onsite Wastewater Treatment System Replacement or Rehabilitation Financial Assistance Program (the Wisconsin Fund), effective June 30, 2021. The proposed rule does the following:
• Sections SPS 381.01 (13m), (93m) and (183) create definitions for an “at-risk” POWTS; “Fats, Oil, and Grease” or “FOG” and “POWTS component manual”. • Table SPS 381.20-11 is updated to include recent editions of POWTS-related national standards incorporated by reference.
• Creates notes throughout the rule clarifying that nothing prohibits the submission and acceptance of planning documents in an electronic or digital media. To further facilitate the submission of planning documents electronically, SPS 385.40 (2) (b) 1. a. is revised to remove the requirement that an original signature is needed on soil evaluation reports.
• Section SPS 383.44 (2) (d) allows the Department to require facilities determined to be “at-risk” to submit additional testing data to the Department and local governmental unit within one year of installation of the POWTS component to determine whether the facility is producing influent in excess of the quantities specified. If the facility exceeds the specified parameters, then the owner will be required to reduce wastewater strength in accordance with the facility’s management plan. • Revisions within s. SPS 383.44 remove references to percolation rates. Previously, percolation testing was used to determine the suitability of soil for a POWTS. Since this approach is no longer used, the rule removes these outdated references to percolation rates. • Section SPS 383.44 (6) (a) 2. allows systems to be constructed within 1 percent of the surface contour. This rule revision clarifies requirements to provide a basis for more consistent interpretation of the rule. • Section SPS 383.45 (2) revises the installation requirement relating to frozen soil to include below the infiltrative surface of the component. • Section SPS 383.45 (6) (b) removes the requirement for observation pipes to terminate at least 2 feet above regional flood levels when located in floodplain areas. • Section SPS 383.45 (7) requires the top of effluent lines and forcemains to be covered by a minimum of 12 inches of soil to prevent freezing and provide protection from damage. • Section SPS 383.255 (1) (a) 1.is amended to eliminate the date of October 1, 2017, which was the deadline for governmental units to conduct an inventory of POWTS located in the governmental unit. • Section SPS 383.255 (2) (a) is amended to eliminate the date of October 1, 2019, which is the deadline for governmental units to develop and implement a comprehensive POWTS maintenance program. The amended provision will take effect on October 1, 2019. • Amends the Table A383.43-1 in SPS 383 Appendix and updates the footnotes regarding public facility wastewater flows.
• Section SPS 384.10 (2) (b) 2. creates a provision that allows the Department to consult with the technical advisory committee to review submittals for products. • Section SPS 384.10 (3) (d) 1. clarifies that the Department shall seek input from the technical advisory committee to review initial applications of POWTS component manuals. • Section SPS 384.10 (3) (e) 1. Clarifies that the Department shall seek public comments for new submittals under this section. • Section SPS 384.10 (3) (e) 2. modernizes and clarifies the process for soliciting public input on POWTS component manuals and clarifies that public comment will be solicited for a minimum of 14 days. The proposed rule removes the requirement that solicitations for public comment be published in the official state newspaper and allows the Department to post notices for seeking public comment on the Department’s website. This change will decrease associated costs and provide the public with improved access to information about POWTS components. • Section SPS 385.60 (2) is revised to adequately reflect the current use of Interpretative Determination Reports (IDR). • The rule revises the format and updates the financial tables (Tables 387.30-1 to 387.30-6) used for the Wisconsin Fund.
• Section SPS 387.03 (9) (c) is repealed to incorporate 2017 Wisconsin Act 59, relating to loans to governmental units. • Several definitions in ch. SPS 387 are repealed due to redundancy. These terms are already defined in ch. SPS 381, which apply to chs. 381 to 387.
• Section SPS 391.11 (2) amends the NSF standard from NSF 41 to NSF Protocol P157 to reflect the appropriate standard for electric incinerating toilets. • Section SPS 391.20 (3) (c) creates a provision to incorporate by reference NSF Protocol P157. • Additional revisions were made throughout the rule to improve clarity and comply with rule drafting requirements.
Summary of, and comparison with, existing or proposed federal regulation:
Under 7 CFR 1924.107, utilities, all development under this subpart must have adequate, economic, safe, energy efficient, dependable utilities with sufficient easements for installation and maintenance. (Utilities include POWTS.) Under 40 CFR 35.918, individual systems and the requirements for discharge of effluents, the U.S. EPA has the authority to prescribe requirements for individual on-site wastewater treatment systems, as well as the provisions of financial assistance. In addition, best practicable waste treatment criteria published by EPA under section 304 (d) (2) of this Act shall be met for disposal of effluent on or into the soil from individual POWTS systems. Under 40 CFR, subch. B, part 31, this rule establishes uniform criteria for POWTS where financial assistance is available on the state and local levels.
Comparison with rules in adjacent states:
Illinois: The Illinois Department of Public Health (IDPH) regulates the installation of all private sewage disposal systems that have no surface discharge. There are approximately 90 local health agencies in Illinois that review plans, either by authority of a local ordinance or as an agent of the Department. IDPH also licenses or certifies Private Sewage Disposal Installation Contractors, Private Sewage Disposal Pumping Contractors, Portable Sanitation Businesses, Portable Sanitation Technicians and Portable Sanitation Technician Trainees. Effective January 1, 2014, the State of Illinois enacted new changes to the Private Sewage Disposal Code. The new changes included new approval, inspection, maintenance, and record-keeping requirements. No state funding program or mechanism exists in Illinois to assist homeowners replacing failing systems or installing new systems.
Iowa: Requirements relating to the design, location, installation, use and maintenance of installation private sewage systems can be found in Chapters 64 and 69 of the Iowa Administrative Code. IAC 567-Chapter 69, Private Sewage Disposal Systems of the Iowa Department of Natural Resources, regulates domestic wastewater from 4 homes or less or non-residential wastewater with a flow of less than 1,500 gallons per day. Private sewer systems are regulated by local boards of health in conjunction with the Iowa Department of Natural Resources. The DNR standards are primarily a prescriptive code giving design criteria for each alternative type of secondary treatment system permitted. Counties have the authority to allow alternative or innovative performance based systems and are required to enter basic information about the systems into the state onsite wastewater database system. An estimated 100,000 septic systems in Iowa are at substandard levels. Funding assistance is available to individuals to replace inadequate onsite sewer systems.
