CR 22-074 Rule Text

The statement of scope for this rule, SS 037-21, was approved by the Governor on April 15, 2021, published in Register No.   784A3 on April 19, 2021, and approved by the Natural Resources Board on June 23, 2021. This rule was approved by the Governor on May 4, 2023.

ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD

REPEALING, RENUMBERING, RENUMBERING AND AMENDING, CONSOLIDATING RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES

The Wisconsin Natural Resources Board adopts an order to repeal NR 811.39 (2) (e) 2., 811.48 (5) (e), 811.52 (1) (d) 1., 2., 3., 811.56 (1) (f), 811.57 (2) (j) 7. (Note), 811.58 (1) (e), 811.64 (4) (c) 1., (10) (i) (Note) and (16) (b); to renumber NR 811.02 (1) and 811.232 (4); to renumber and amend 811.232 (intro.) (1), (2), (3), 811.75 (1) (a) and 811.85; to consolidate, renumber, and amend 811.64 (4) (c) (title) and 2.; to amend NR 811.01, 811.08 (3) (intro.), 811.09 (1) (h) 2. (intro.), 811.12 (1) (c) and (d) 1., 811.12 (5) (intro.), (a), (d) 9., (7) (b), (c), (h), (10) (c), (11) (intro.), (12) (intro.) and (f), (13) (intro.), (14) (a) 1., 15 (a) and (Note), 811.13 (1) (intro.), (a), (b), (c), (2) (intro.), (3), (4) (title), (a), (c), (d) (intro.), (5) (intro.), (6) (intro.), (a), (7) (intro.), (a), (d), (e) 2. and (8), 811.14 (5), 811.19 (3) and (5), 811.21 (intro.), (1) (intro.), (b), (e) and (2) (a), 811.22 (3), 811.23 (1) (f), 811.231 (2) (d) and (g), 811.27 (1) (c), 811.28 (5) (b), 811.29, 811.31 (2) (b), 811.34 (6) (e), 811.36 (1) (a), 811.37 (1), (4) (Note), (5) (a) and (b) 2., 811.39 (2) (e) (intro.), 3. (intro.), (f) 1., 2. (Note), (3) (d), (6) (a) to (d) and (7) (f), 811.40 (1) (d), (g) and (j) and (n) (intro.), 811.43 (1), (4), 811.45 (1) (e), 811.47 (intro.) and (7) (b) 1., 811.48 (1) (a) 2., 3., 4., (b), (4) (title), (5) (title), (6) (b), (7) (a), 811.49 (1) (b), (c), (f) 6. b. and (j) 1., 811.50 (3), 811.51 (1) (c), (2) (a), (3) (h), 811.52 (1) (d) (intro.), (3) (d), 811.53 (2) (e) 7., 811.54 (2) (d) 2., 811.55 (2) (c), 811.57 (2) (intro.), (j) 3., 4., 811.60 (intro.), (3) and (5) (c), 811.61 (7), 811.63 (5) (a) and (b), 811.64 (1) (a), (3) (a) 2., 3., (4) (a) 1., 3., 5., (4) (d) 1., (7) (a), (b), (8) (c), (10) (i) and (16) (c), 811.68 (2), (3), 811.69 (1), (3), 811.70 (1), (4), (9), 811.71 (1), (5), (7), 811.72 (1), (2) (c), 811.73 (2) (e), 811.75 (1) (c), 811.84 (9), 811.851, 811.853 (1), (2) (a), (d), (3) (b), (4) (b), (d), 811.856 (2) (a), 811.857 (2), (3), 811.858 (intro.), (1) (b), (d), (f), (2), (3), 811.859 (1) (intro.), (a), (2), 811.860 (1), 811.861 (1), (2), (4) (title) and 811.862 (1) (b); to repeal and recreate NR 811.12 (9), 811.13 (title), 811.39 (6) (intro.), 811.40 (1) (L), 811.45 (2) (k), 811.48 (8), 811.853 (2) (g) and (3) (d), 811.853 (4) (c), 811.854, 811.855, 811.856 (intro.), 811.858 (4) and 811.860 (2) and (3); and to create NR 811.02 (1g), (19m), (29m), (37d), (37h), (37p), (37t), (38m), (46m), (63m), (64m), 811.12 (1) (g) (intro.), 5., (k), (5) (d) 10., (10) (c) (Note), (12) (h), (i), (13) (a) 8., (b) 7., (14) (intro.), 811.13 (intro.), 811.21 (2) (a) (Note), 811.22 (1m), (3m), 811.23 (1) (i) and (j), 811.231 (2) (i), 811.232 (1) (d) and (2), 811.25 (1) (h) 2. bm., 811.31 (1m), 811.39 (2) (e) 3. a., b., c., d., e., (6) (e), (f), 811.40 (1) (cm), (n) 1., 2., 811.43 (9), 811.44 (1) (h) and (2) (Note), 811.45 (3m), 811.49 (1) (k) 9., 811.495, 811.50 (3) (Note), 811.57 (2) (j) 8. and 9., 811.575, 811.60 (Note), 811.605, 811.61 (7) (Note), 811.64 (4) (a) 6., 7., (8) (f) 4. and (16) (d), 811.685, 811.73 (2) (e) (Note), 811.75 (1) (ag), 811.85 (1), (2), 811.853 (intro.), (3) (e), 811.857 (1) (title), 811.858 (1) (g), (h), (2) (Note), and 811.861 (2) (Note) relating to updating, correcting and clarifying existing code requirements and adding requirements for new technologies related to community drinking water system sources, source water quality, storage, treatment, and distribution and affecting small business.

DG-22-20

Analysis Prepared by the Department of Natural Resources

1. Statute Interpreted: Chapters 280 and 281, Wis. Stats.

2. Statutory Authority: Sections 280.11(1), 280.13(1), 281.12, 281.17(8), and 281.41(1), Wis. Stats.

3. Explanation of Agency Authority:

Chapter 280, Wis. Stats., established the statutory authority and framework for regulation of community water systems. Section 280.11(1), 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, 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 authority to exercise powers and promulgate rules reasonably necessary to carry out and enforce the provisions of ch. 280, Wis. Stats.

Under s. 281.12, Wis. Stats., the department has general supervision and control over waters of the state and authority to plan and manage the regulatory programs that are necessary for fulfilling that responsibility. Section 281.41(1), Wis. Stats., gives the department authority to require complete plans for proposed water system extensions, maintenance, and operation.

Section 281.17(8), Wis. Stats., authorizes the department to establish, administer, and maintain a safe drinking water program no less stringent than the requirements of the federal safe drinking water act.

4. Related Statutes or Rules:

Chapter NR 809, Wis. Adm. Code, establishes minimum standards and procedures for the protection of public health, safety, and welfare in the obtaining of safe drinking water. Chapter NR 810, Wis. Adm. Code, governs the general operation and maintenance of all public water systems.

5. Plain Language Analysis:

The primary objectives of revisions to ch. NR 811, Wis. Adm. Code, are to correct, clarify, and update design and construction standards and address new technologies related to community drinking water systems. Specific objectives include:

— Modify, add and clarify NSF/ANSI Standard 61 certification requirements for all materials or products that come into contact with finished water.

— Modify, add, and clarify groundwater well design including siting, construction, rehabilitation, reconstruction, and abandonment.

— Modify, add, and clarify groundwater and surface water treatment facility design including construction, reconstruction, treatment technologies, facility layout, equipment, piping, storage, and disposal of waste.

— Modify, add, and clarify finished water storage design including siting, construction, rehabilitation, reconstruction, and decommissioning.

— Modify, add, and clarify distribution and transmission system design including separation distance to potential contamination sources, installation, construction, location of appurtenances, rehabilitation technologies, testing, and abandonment.

— Modify, add, and clarify drinking water system building construction requirements.

— Modify, add, and clarify source water quality treatment requirements.

— Modify, add, and clarify exemptions or alternative code requirements for other-than-municipal (OTM) community drinking water systems.

— Remove code requirements that may be conflicting or are no longer applicable.

— Address grammatical errors and inconsistencies.

6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:

The U.S. Environmental Protection Agency (EPA) granted Wisconsin primary enforcement authority (primacy) for the federal Safe Drinking Water Act, which Wisconsin does through creation, maintenance, and enforcement of state statutes and administrative rules governing safe drinking water. As a primacy state, Wisconsin must enforce state regulations that assure that the design and construction of new or modified public water system facilities will be capable of compliance with the state primary drinking water regulations. (40 C.F.R. § 142.10(b)(5)).

7. If Held, Summary of Comments Received During Preliminary Comment Period

and at Public Hearing on the Statement of Scope:

The department held a virtual preliminary public hearing on the statement of scope on June 7, 2021. Thirteen members of the public attended the preliminary public hearing. No attendees provided testimony at the hearing. Comments were accepted through June 9, 2021. No written comments were received.

8. Comparison with Similar Rules in Adjacent States:

The four surrounding states use the Great Lakes – Upper Mississippi River Board of State and Provincial Public Health and Environmental Manager Recommended Standards for Water Works (10 States Standards) as the regulatory requirements for community water systems. Wisconsin does not use the 10 States Standards directly for regulatory requirements, but many sections of ch. NR 811, Wis. Adm. Code, have similar requirements to the 10 States Standards. The proposed revisions to ch. NR 811, Wis. Adm. Code, generally include adopting requirements from the 10 States Standards.

A brief comparison with the four states surrounding Wisconsin – Illinois, Michigan, Iowa, and Minnesota – is provided below on the most substantive changes proposed in these rule revisions.

— The surrounding states, through the 10 States Standards, require that the total developed groundwater source capacity shall equal or exceed the design maximum day demand with the largest producing well out of service. For apartment units, condominium units, and manufactured (mobile) homes it is difficult to determine the maximum day demand. The department is proposing that the minimum pumping capacity for apartment units, condominium units, and manufactured (mobile) homes be 1 gallon per minute per living unit, which is generally deemed adequate capacity by department experience and industry standards.

— The surrounding states regulate nitrate treatment systems through the treatment requirements listed in the 10 States Standards. The existing and proposed rules for nitrate treatment in ch. NR 811, Wis. Adm. Code, largely follow the requirements listed in the 10 States Standards. However, the department is proposing to add a requirement that nitrate treatment or blending systems be provided with a continuous nitrate analyzer to ensure that entry point water is continuously meeting the maximum contaminant level for nitrate, which is an acute drinking water contaminant. This additional protection is not part of surrounding states’ regulations but will provide additional protections for water consumers in Wisconsin.

— The surrounding states regulate packed tower aeration design with the requirements listed in the 10 States Standards. Wisconsin currently does not have specific design requirements for packed tower aeration systems and is proposing to adopt the requirements listed in the 10 States Standards.

— The surrounding states regulate pressure filtration design with the requirements listed in the 10 States Standards. Wisconsin currently does not have specific design requirements for pressure filtration systems and is proposing to adopt the requirements listed in the 10 States Standards.

— The surrounding states regulate anion exchange system design with the requirements listed in the 10 States Standards. Wisconsin currently does not have specific design requirements for anion exchange systems and is proposing to adopt the requirements listed in the 10 States Standards.

9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:

Many of the rule revisions simplify, clarify, and streamline rule language. Data and methodologies used to support substantive changes include:

— A series of four preliminary stakeholder meetings where the department gathered input from water systems, consultants, and industry professionals.