Statement of Scope
Department of Natural Resources
Relating to: | Revisions of ch. NR 809 related to control of lead and copper in public drinking water, to be consistent with revisions to the federal Lead and Copper Rule and the federal Lead and Copper Rule Improvements. |
This revised statement of scope replaces SS 088-23 (Board Order DG-16-23), which was approved by the Governor on October 26, 2023, published in Register 814B, on October 30, 2023, and approved by Deputy Secretary Steven Little for Secretary Adam Payne on January 18, 2024. 1. Finding/nature of emergency (Emergency Rule only):
The rules will be proposed as permanent rules.
2. Detailed description of the objective of the proposed rule:
The objective of the proposed rule is to update ch. NR 809, Wis. Adm. Code, related to control of lead and copper in public drinking water, to be consistent with 2021 revisions to the Federal Lead and Copper Rule, 40 CFR 141.80 to 141.93, and with the anticipated 2024 federal rule revision – Lead and Copper Rule Improvements, and other federal law addressing lead and copper in public drinking water. Additional rule changes may be considered to effectuate the goals in this scope statement, clarify ambiguities, and address circumstances unique to Wisconsin. This may include cross references in other areas of administrative code that refer to provisions in this rulemaking.
Areas of the rule the department expects to address include:
— General requirements for the control of lead and copper in public drinking water.
— Compliance monitoring, supplemental monitoring, and analytical requirements for lead and copper.
— Descriptions and applicability of corrosion control treatment steps for small, medium and large-size water systems.
— Description of corrosion control treatment requirements.
— Source water monitoring and treatment requirements.
— Lead service line inventory requirements.
— Lead service line replacement requirements.
— Public education and outreach requirements.
— Monitoring requirements and corrective actions for lead and copper in tap water, including individual tap samples.
— Requirements for establishing and maintaining optimal water quality parameters.
— Monitoring requirements for water quality parameters.
— Monitoring requirements for lead and copper in source water.
— Reporting requirements for lead and copper.
— Monitoring and notice requirements for lead in schools and childcare facilities.
— Small water system compliance flexibility.
— Recordkeeping requirements.
— Any other changes necessary for Wisconsin administrative rules to be no less stringent than the requirements of the federal Lead and Copper Rule, including the 2021 Revisions and the Lead and Copper Rule Improvements.
3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
Under the Safe Drinking Water Act (Act), the U.S. Environmental Protection Agency (EPA) establishes regulations that public drinking water systems must meet. Under Section 1413 of the Act, EPA authorizes states, territories, and Indian Tribes to have primary responsibility for administration and enforcement of these drinking water regulations (also called primacy) if they meet certain requirements. When EPA issues new drinking water regulations, primacy agencies are required to adopt these new requirements within two years after the EPA regulation is promulgated. However, states may apply for an extension of up to two additional years and EPA may approve the extension if it meets certain regulatory criteria.
The Federal Lead and Copper Rule Revisions (LCRR) went into effect on December 16, 2021. Shortly thereafter, EPA announced its intention to propose changes to the LCRR requirements that could affect all parts of the rule other than the initial lead service line inventory submission. EPA refers to the additional rule changes they proposed in December 2023 and expect to finalize in October 2024 as the Lead and Copper Rule Improvements (LCRI). To avoid the inefficient adoption of multiple rules over a short period of time EPA recommends that states group the promulgation of the LCRR and LCRI requirements into a single action. Wisconsin Department of Natural Resource (DNR), as a primacy agency, is required to promulgate state administrative rules that are no less stringent than the federal LCRR and LCRI requirements by the dates established by the EPA.
Under the existing lead and copper rule, public water systems are required to monitor lead and copper concentrations in drinking water and take follow-up actions if the 90th percentile of their monitoring results exceed the lead or copper action level. Required follow-up actions include public education; water quality parameter and source water monitoring; system evaluation; and recommending a plan of action to reduce lead and/or copper levels in drinking water. In addition, following an action level exceedance (ALE), certain systems are required to conduct a corrosion control treatment (CCT) study and/or to undertake lead service line replacements.
Under the 2021 LCRR all systems are required to develop and submit an initial lead service line inventory to the department by October 16, 2024; the initial lead service line inventory requirement does not change under the proposed LCRI.
It is not known with certainty at this time which proposed changes in the LCRI will make the final rule, but the proposed LCRI requires full lead service line (LSL) replacement for all systems, regardless of whether they have an ALE, over a set period of time and lowers the lead action level from 15 ug/L to 10 ug/L. Additionally, the proposed LCRI would strengthen both inventory and monitoring requirements; add more stringent requirements for systems that exceed the lead action level; and add new requirements for public water systems to monitor in schools and childcare facilities. EPA may make changes to the proposed LCRI before it is finalized. To ensure Wisconsin complies with the final LCRI, the DNR intends to wait until EPA finalized the LCRI before it issues a proposed rule under this scope.
The alternative is to not promulgate these rules, in which case the federal regulations would still apply to all Wisconsin public water systems. However, the EPA would administer and enforce the regulations in Wisconsin rather than the Wisconsin DNR. This is because not promulgating these rules would result in Wisconsin losing primacy for the lead and copper rules under the Safe Drinking Water Act (SDWA) and for administering and enforcing the SDWA lead and copper rules in Wisconsin.
4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Under s. 281.17(8)(a), Wis. Stats., “the department may establish, administer and maintain a safe drinking water program no less stringent than the requirements of the Safe Drinking Water Act, 42 USC 300f to 300j-26.” Chapter NR 809, Wis. Adm. Code, is Wisconsin’s safe drinking water program and establishes minimum standards and procedures for the protection of public health, safety and welfare in obtaining safe drinking water.
