The statement of scope for this rule, SS 119-19, was approved by the Governor on December 5, 2019, published in Register No. 768A2 on December 9, 2109, and approved by the Natural Resources Board on February 26, 2020. This rule was approved by the Governor on February 24, 2022. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING, AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to amend NR 812.12 (5) (b), 812.13 (3) (c), (4) (b) and (8) (a), 812.14 (3) (a), (4) (intro.), (b) (intro.) and (c), 812.15 (2) (c), 812.31 (2) (a) and 812.46 (1) (a) 5.; and to create NR 812.07 (79x), 812.10 (13) (d), 812.12 (5) (c), 812.13 (8) (d) 3. and 4., and 812.14 (3) (e), (f) and (g), (4) (d), and (5) (c) 3., relating to well construction and pump installation and affecting small business. |
DG-25-19
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
Sections 280.11 and 281.34, Wis. Stats. 2. Statutory Authority:
3. Explanation of Agency Authority:
Section 227.11(2)(a)(intro.), Wis. Stats., provides that a state 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,” subject to certain restrictions. Chapter 280, Wis. Stats., establishes the statutory authority and framework for regulation of well drilling, heat exchange drilling and pump installation. Section 280.11, Wis. Stats., specifically directs the department to prescribe, publish and enforce minimum reasonable standards and rules for methods to be pursued to obtain pure drinking water for human consumption, and to establish safeguards deemed necessary in protecting the public health against the hazards of polluted sources of impure water supplies intended or used for human consumption. This statute gives the department general supervision and control over all methods of obtaining groundwater for human consumption including the construction or reconstruction of wells, authority to prescribe, amend, modify or repeal any applicable rule, and to perform any act deemed necessary for the safeguarding of public health. Section 280.13(1), Wis. Stats., gives the department the authority to promulgate such rules as are reasonably necessary to carry out and enforce the provisions of ch. 280, Wis. Stats. Chapter 281, Wis. Stats., gives the department authority to regulate groundwater withdrawals (s. 281.34, Wis. Stats.), establish, administer and maintain a safe drinking water program no less stringent than the requirements of the safe drinking water act (s. 281.17(8)(a), Wis. Stats.) and includes enforcement authorities (s. 281.98, Wis. Stats.). 4. Related Statutes or Rules:
Chapter NR 146, Wis. Adm. Code, implements the licensing and registration requirements of ch. 280, Wis. Stats., for water well drillers, heat exchange drillers, pump installers and rig operators. Chapter NR 809, Wis. Adm. Code, establishes minimum standards and procedures for the protection of the public health, safety and welfare in the obtaining of safe drinking water. 5. Plain Language Analysis:
Although thermoplastic casing is an approved material in Wisconsin, its current use is restricted to wells that terminate in unconsolidated formations only. Wisconsin is the only state in the upper Midwest, and one of only three states nationally, that prohibits the use of thermoplastic casing for wells that terminate in bedrock formations. This puts Wisconsin’s well drillers and homeowners at a disadvantage when it comes to safe and affordable options for well construction. Specific edits include:
1 Allows construction of wells using thermoplastic casing to terminate in bedrock formations. All neighboring states (and most states in the U.S.) allow this.
2. Allows the use of cementous grout as an annular space seal for wells with thermoplastic casing. 3. All neighboring states allow the use of cementous grout in bedrock wells, although Minnesota restricts the depth of thermoplastic cased wells into limestone and dolomite bedrock to five feet.
Allows clamp-on, bolt-on, or bolt-through pitless adapters for all wells (currently these are only allowed for wells serving single families). This was proposed during the last rule revision too late to include in the rule. After consulting with the department’s Public Water Program, the perceived risk to ground water and public health was deemed to be minimal.
3. Adds maximum annular space requirements for wells constructed with thermoplastic casing and cementous grout to prevent damage from pressure and heat of hydration. This suggested rule revision is unique to Wisconsin as an added precaution and is not present in neighboring states’ regulations.
4. Clarifies s. NR 812.13 (4) (b), Wis. Adm. Code, making the use of a packer or shale trap to provide a sand seal between the bottom of a casing and the top of a screen optional rather than required. This was a clarification of the rule suggested by an industry member of the PVC Casing Study Group. 5. Allows the department to investigate wells that it suspects have suffered damage to thermoplastic casing. This suggested rule revision is an added precaution to allow department staff to investigate wells constructed with thermoplastic casing that they suspect have been damaged during construction.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
Federal law does not directly regulate the construction of wells or heat exchange drillholes, and does not regulate the installation of pumps. For public drinking water systems, Wisconsin is a primacy state, with the primary responsibility to enforce state drinking water regulations consistent with the federal Safe Drinking Water Act. One federal requirement of Wisconsin’s primacy role, 40 CFR § 142.10(b)(5), is that the state assures that the design and construction of new or substantially modified public water system facilities will be capable of compliance with the state primary drinking water regulations. For non-community public drinking water systems, ch. NR 812, Wis. Adm. Code, provides the design and construction standards to meet this federal requirement. 7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
A preliminary public hearing on the statement of scope was not held.
8. Comparison with Similar Rules in Adjacent States:
The department considered well regulations related to thermoplastic casing for all neighboring states, plus Indiana and Ohio. All six states allow the use of thermoplastic casing terminating in bedrock, and the use of cementous grout for thermoplastic casing. Wisconsin does not.
Illinois, Indiana, Iowa, Michigan and Ohio allow drilling through thermoplastic casing; Minnesota and Wisconsin prohibit drill-through. DG-25-19 would not lift that prohibition in Wisconsin.
Five of the six states (except Indiana) have specific prohibitions against driving or mechanically advancing thermoplastic casing. Indiana has no specific prohibition against it. DG-25-19 would not lift that prohibition in Wisconsin. All six states allow the construction of water wells terminating in bedrock using thermoplastic casing and cementous grout. Currently, ch. NR 812, Wis. Adm. Code, prohibits both of these practices 9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Most of the rule revisions simplify, clarify and streamline rule language to allow for increased use of thermoplastic casing for water wells. Data and methodologies used to support substantive changes include:
An external advisory group of well drillers was convened to provide input and review proposed changes to construction standards in subch. II of ch. NR 812, Wis. Adm. Code.
Department staff investigated current research and studies of the efficacy of using thermoplastic casing for water wells; those include:
