STATE OF WISCONSIN
DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE THE
DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES
ORDER OF THE DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES
ADOPTING RULES
(CLEARINGHOUSE RULE 17-065)
ORDER
An order of the department of safety and professional services to repeal SPS 381.01 (71) (Note) and (92) (Note) and (111) (Note) and (114) (Note) and (194) (Note) and (215) (Note), 383.21 (4) (Note), 383.21 (8) (b) (intro), 383.22 (2) (b) 2. (Note), 383.44 (4) (a) 1. f., Table 383.44-1, 384.03, 384.10 (3) (e) 2. b., 384.30 (4) (Note), Ch. 387, 387.03 (1) to (4) and (6) and (7) (b) (Note) and (7m) and (8) and (9) (c) and (Note) and (10), 387.20 (2) (Note), 387.30 (2) (Note) and (4), 387.31(3) (Note), 387.80 (6) (Note), and 391.03 (1) (Note) and (4) (Note) and (8) (Note); to renumber SPS 384.10 (2) (b) to renumber and amend SPS 384.10 (3) (e) 2. a.; to consolidate, renumber, and amend SPS 383.21 (8) (b) 1. and 2.; to amend SPS 381.01 (194), 381.20 (2) (a) and (b) and (c) and (3) (intro.) and (Note), Table 381.20-11, 383.21 (2) (a) (Note) and (b) 2. (Note) and (c) 3., 383.21 (8) (intro.) and (a), 383.02 (1) (c) (Note) [3], 383.20 (1) (b) and (Note), 383.22 (1) (a) and (2) (a) 3. and (b) 1. and a. (Note) and 2. and (c) 1. and (3) (b) 1. and 2. and (c) and (7) (a), 383.25 (2) (b) (intro.) and 1. and (c) 1. and a. and 2. and a. and (d) 3., 383.255 (1) (a) 1. and (2) (a), 383.44 (6) (a) 2., 383.45 (2) and (6) (b), 383.54 (2) (a) and (e) 2. (Note), Table A-383.43-1, 384.10 (intro.) and (2) (a) 2. and (a) and (c) and (d) and (3) (title) and (c) and (d) and 1. and 2. and (e) 1. and (f) 1. and (g), 384.20 (5) (s), 384.25 (12), 384.30 (4), 385.40 (2) (b) 1. a., 385.60 (2) (a), 387.03 (9) (a), 387.90 (2) (Note), 391.10 (4) (a), 391.11 (2) and (4) (a) (Note), 391.14 (1) (b), and 391.20 (1) and (2) and (3) (intro.); to repeal and recreate SPS 383.21 (2) (c) 7. (Note) and (8) (b) (intro.) and 1. and 2., 384.10 (3) (e) 2. a. (Note), and Tables 387.30-1 to 6, and 391.20 (3) (a) and (b); to create SPS 381.01 (13m) and (93m) and (183), 383.21 (2) (c) 2. (Note), 383.22 (2) (b) 1. g. and (d) (Note), 383.44 (2) (d), 383.45 (7), 384.10 (2) (b) 2. and (3) (c) 12. and (d) 2. h. and i., 385.40 (2) (b) 2. (Note), and 391.20 (3) (c), relating to Private Onsite Wastewater Treatment Systems and the Wisconsin Fund. Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Statutes interpreted: s. 145.20, Stats. Explanation of agency authority:
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.
