The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes and order to repeal and recreate ch. ATCP 76, relating to the Safety, Maintenance, and Operation of Public Pools and Water Attractions).
Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (Department) proposes an order to repeal and recreate Wis. Admin. Code ch. ATCP 76 (Safety, Maintenance, and Operation of Public Pools and Water Attractions). This new rule, if adopted, will bring Wisconsin into substantial accord with the current industry technology, innovations, and pool patron experiences.
Statutes Interpreted
Statutes Interpreted: Sections 93.07 (1), 93.07 (24) (e), 97.67 (1) and (4), 93.06 (7) and (8), 97.71, and 97.12 (3), Stats.
Statutory Authority
Statutory Authority:  Sections 93.06 (7) and (8), 93.07 (1), 93.07 (24) (e), 97.65, 97.67(1) and (4), 97.71, Stats.
Explanation of Statutory Authority
The Department has broad general authority, pursuant to s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The Department has specific authority, in par. 93.07 (24)(e), Stats., to enforce the laws for the maintenance and operation of public swimming pools, and the Department has authority pursuant to s. 97.67(1) and (4), Stats., to adopt rules for public swimming pools dealing with fees; license issuance, pre-licensing inspection fees, reinspection fees, fees for operating without a license, and late fees for untimely license renewal. The Department has authority under subs. 93.06 (7) and (8), and s. 97.71, Stats., to set conditions on a license, suspend a license, or void a license. The Department may also issue a special order requiring corrections before a public swimming pool resumes operations, pursuant to sub. 97.12 (3), Stats.
Related Statutes and Rules
Since the transfer of several programs from the Department of Health Service’s Food Safety and Recreational Licensing section in July of 2016, the Department has regulated public pools and water attractions. A public pool operator is responsible for safely operating and maintaining a pool pursuant to ch. 97, Stats. Pool operators are also required to meet the requirements for pool construction pursuant to ch. SPS 390. Public pools and water attractions operators shall also meet the requirements pursuant to chs. NR 108, 811 and 812.
Plain Language Analysis
The proposed rule modifies Wis. Admin. Code ch. ATCP 76 by incorporating significant rule provisions of former ch. DHS 172.
A revised ch. ATCP 76 is needed because new technologies and trends within the pool and water attraction industry need to be acknowledged and addressed. In addition, in using the existing ch. ATCP 76, industry, inspectors and the general public continually note places within the code where clarification is needed to facilitate understanding of the rule and its intent. Because of the need for clarification, many new definitions are needed.
The pool industry encompasses a broad variety of businesses from small motels and campgrounds, to homeowner associations, schools, healthcare, and municipal and resort waterparks. In order to ensure development of a rule that considers all the various niches within industry, robust representation from within the pool industry, public health and the Department of Safety and Professional Services pool plan review was sought in rule development. Also, included in the pool industry are limited-use public pools that now are rented to the general public in a residential environment.
Sections have been added and formatted to align with other Retail and Recreational rules.
The process for assigning a pool license fee has relied on a licensing structure that is complicated to understand and implement. The license fee has not kept pace with the Department's costs for issusing a license and conducting an inspection. The State has not had a license fee increase for pools and water attractions since 2007. In the revised ch. ATCP 76, a pool is licensed using a modernized three-tier risk and complexity model that acknowledges the risks of the pool operation and the associated features. The proposed licensing model more clearly reflects the risks and complexity of the pool operation and more accurately reflects the time it takes for the Department to perform its licensing and inspection responsibilities. This licensing model will promote fairness to small business owners by having the license fee reflect inspection time, and risk associated with their facilities. License fees will not be based on a one-size-fits-all model.
Significant input was received from industry and public health partners related to methods for the operation of a pools recirculation system and methods for chemical testing. Much of the language is outdated, including references that are no longer accurate or relevant. The input recieved ensured that the rule is updated to allow for new materials that perform more effectively in filtering pool water, and potentially a newer water testing kits that employ technologies that may be more accurate or more efficient than the traditional approach. In these sections, the language of the rule has been intensively reviewed and clarified so that it is more easily understood by industry and regulators alike.
Supervision and staffing of pools is key to safely operating the pool as well as addressing risks that may require staffing by a lifeguard or attendant. The input received from industry and local health departments was used to revise the rule to address supervision of pools in general, and supervision of the nearly infinite types of features that may be added to a pool. At one time, a pool was a plain rectangle in the ground. Now there are pools that offer experiences such as waves, vortexes, and slide-based rides. It would be impossible to determine an exhaustive list of safety rules that would be applicable to all possible types of water experiences. The tables that describe attendant and lifeguard staffing were clarified so that they cover each type of water experience in detail (whirlpool, waterslide, pool slide under six feet, for example), and describe what the requirement is for that type of pool. The revised rule requires a pool operator and responsible supervisor to develop rules that make sense and accomplish a common goal of safely participating in the water experience.
When a waterborne illness outbreak occurs, early intervention is essential to identify and contain the outbreak. The rule supports expeditious investigation and resolution of any waterborne outbreaks. Sometimes when a suspected outbreak is occurring, it is difficult to know exactly what is expected of pool operators. The revised rule clearly states requirements for operators in the event of a suspected or confirmed outbreak so that it supports efficient and effective investigation of potential waterborne illnesses.
In recent years, there has been an upward trend in demand for dog swims. The revised rule aims at addressing the risks to ensure health and safety at these events by eliminating time spent on the variance process by pool operators, public health staff, and the Department.
Federal Virginia Graeme Baker Act requirements are intended to prevent entrapment and evisceration from submerged drains in the pool. These requirements specify ratings for drain covers as well as placement of drain covers. The revised rule clearly states the requirements and aligns with federal regulations.
Input received from pool operators and pool technical service companies has been incorporated into the rule to reflect current technologies and trends.
With this rule revision, the Department has sought to eliminate duplication, clarify expectations, and to simplify licensing and align fees with costs.
The Department also addressed limited-use public pools. These pools are not addressed under the current rule. Licensing and health and safety requirements have been developed for this new business model.
Wisconsin has a greater variety of requirements for disinfectant levels in order to address the risks and unique chemical environment for each type of pool. The revised rule continues to require higher disinfectant residuals in situations where there is more demand on the free chlorine, such as within whirlpools, where free chlorine disinfectant dissipates relatively rapidly, and within wading pools, where toddlers may be playing and there is a concern to keep the level above the minimum so that it does not rapidly drop below the minimum needed to kill many pathogens that may be present in feces. Some of the disinfectant requirements outside of those where specific requirements are necessary, however, have been streamlined, to make the requirements easier to find and follow. The revised rule streamlines and simplifies disinfectant residual requirements to be in line with those of surrounding states, while maintaining more stringent requirements in settings where appropriate.
In the revised rule, Wisconsin will be the first to address the toxicity of cyanuric acid by recognizing that a level of 300 parts per million (ppm) is toxic to humans, per the National Sanitation Foundation (2019).
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
There are no existing or proposed federal regulations that address the activities to be regulated by this proposed rule as a whole. However, the Consumer Product Safety Commission (CPSC) pursusant to 15 U.S. Code § 8003 requires specific construction and placement of drain covers.
The Centers for Disease Control and Prevention (CDC), oversees the guidance, Model Aquatic Health Code (MAHC). This is a comprehensive guidance document for pools, created with input from state health departments and industry partners. The Department referred to this guidance document in the revision process.
Summary of Comments Received during Preliminary Comment Period and at Public Hearing on Statement of Scope
The Department held preliminary hearings on the statement of scope (SS 005-20) on February 14, 2020 in Madison and February 17, 2020 in Wausau, with comments open until February 24, 2020. The Department received eight oral comments during the preliminary hearings and twelve written comments. The Department considered the comments received which included a desire for careful consideration towards adopting the Model Aquatic Code, and although it is mandated by Federal law, commenters expressed concerns with Virginia Graeme Baker Act (VGBA) and the Americans with Disabilities Act (ADA). The commenters also mentioned the importance of involving industry experts throughout the rule-revision process.
Comparison with Rules in Adjacent States
Surrounding states have regulations in place for public pools and water attractions. Regulations are similar to those in Wisconsin, though there are a few differences in which rules are enforced by sanitarians (construction and operation vs. only operation), licensing, requirements for disinfection and other chemical levels, dog swims, outbreak response, and other areas.
Surrounding states combine pool construction and operation into one code. In Wisconsin, pool construction and plan review fall under the regulatory authority of the Department of Safety and Professional Services and safety and maintenance of pools fall under the regulatory authority of the Department.
Illinois: Illinois’s pool code, Part 820, is similar to Wisconsin’s although their code combines construction and operation into one code. Pools at single family residences are not considered ‘public’ and are not subject to permitting if the intended use is only for owner and guests. Illinois’s code does not have specific requirements for the chemical feed to be interlocked with the recirculation pump to prevent accidental chemical feed. Illinois allows cyanuric acid levels up to 100 ppm. One set of chemical parameters (including free chlorine and pH) is defined for all swimming basins. An emergency telephone is required within 300 feet of the pool enclosure. Telephone design (cellular vs. landline) is not described in the code. Pool license fees are based on square footage and range from $150 to $650.
Iowa: Iowa’s pool rule, Rule 641, ch.15, is similar to Wisconsin’s, but like Illinois’s also combined construction and operation into one code. Residential pools operated for more than a certain number of hours per month are subject to the rule, Rule 641, ch.15, while other residential pools offered to the public for fewer hours per month are subject to a more limited set of rules within Rule 641, ch. 15.4(6) n. Iowa requires a certified operator, except for smaller condominiums, apartment complexes and home owners associations. A telephone is required to be available, but technology and location is not specified. The level for pool closure for cyanuric acid level is 80 ppm. Pool license fees range from $170 to $270.
Michigan: In Michigan, R-325.2191 through R-325.2199 contains regulations for both construction and operation of public swimming pools. Electrical interlock is covered in construction code. Pools in single-family residence are subject to the rule if offered to the public. The cyanuric acid limit is 80 ppm. Michigan requirements for disinfection are based on pH of the pool, but are similar for all bodies of water. A telephone must be provided. If it’s not in the enclosure, written advice must be provided for how to find the phone, as in Wisconsin’s proposed ATCP 76. Telephone technology is not specified. Requirements for disinfection of whirlpools are less specific and are outcome-based. State pool license fees are $70, but the local health department may charge an additional inspection fee, of approximately $200 to $300 more.
Minnesota: Minnesota’s pool code, Chapter 4717, provides one set of disinfection parameters. Under subparagraph 11, Minnesota is also phasing-out use of cyanuric acid in indoor pools and sets a limit at 100 ppm. As of February, 2022, Minnesota will no longer require a telephone for public pools. Minnesota’s lifeguarding requirements are similar to those of Wisconsin, although in Minnesota, a competitive pool would not be required to have a lifeguard, whereas in Wisconsin, the same pool would be required to have a lifeguard due to the size of the pool, and due to the presence of instructional programs. State pool license fees for a pool are $510.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.