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. 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. These administrative rules were last reviewed in their entirety in April 2000. The rule was reviewed to identify and update outdated provisions, to improve language clarity and to update references and notes as needed.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 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. The proposed rule does the following:
• SPS 381.01 (13m), (93m), and (154r) create definitions for an “at-risk” POWTS; “Fats, Oil, and Grease” or “FOG”; “Moh’s Scale of Hardness”, and “POWTS component manual”.
• SPS 381.01 (111) (Note) updates the definition for “governmental unit” in accordance with s. 145.01 (5), Stats., and 2013 Act 124. • Table SPS 381.20-11 is updated to include more recent editions of POWTS-related standards.
• Creates notes throughout the rule clarifying that nothing in the chapter prohibits the submission and acceptance of planning documents in an electronic or digital media. To further facilitate the submission of planning documents electronically, SPS 385.40 (2) (b) 1. a. is revised to remove the requirement that an original signature is needed on soil evaluation reports.
• SPS 383.44 (2) (d) allows the department to require facilities determined to be “at-risk” to submit additional testing data to the department and local governmental unit within one year of installation of the POWTS component to determine whether the facility is producing influent in excess of the quantities specified. If the facility exceeds the specified parameters, then the owner will be required to reduce wastewater strength in accordance with the facility’s management plan.
• Revisions within s. SPS 383.44 remove references to percolation rates. Previously, percolation testing was used to determine the suitability of soil for a POWTS. Since this approach is no longer used, the rule removes these outdated references to percolation rates. • SPS 383.44 (6) (a) 2. allows systems to be constructed within 1 percent of the surface contour. This rule revision clarifies requirements to provide a basis for more consistent interpretation of the rule.
• SPS 383.45 (2) revises the installation requirement relating to frozen soil to include below the infiltrative surface of the component.
• SPS 383.45 (6) (b) removes the requirement for observation pipes to terminate at least 2 feet above regional flood levels when located in floodplain areas.
• SPS 383.45 (7) requires the top of effluent lines and forcemains to be covered by a minimum of 12 inches of soil to prevent freezing and provide protection from damage.
• Amends the Table A383.43-1 in SPS 383 Appendix and updates the footnotes regarding public facility wastewater flows.
• SPS 384.10 (2) (b) 2. creates a provision that allows the Department to consult with outside experts to review submittals for products.
• SPS 384.10 (3) (d) 1. clarifies that the Department shall seek input from the technical advisory committee to review initial applications of POWTS component manuals.
• SPS 384.10 (3) (d) 2. revises the composition of the technical advisory committee.
• SPS 384.10 (3) (e) 1. Clarifies that the Department shall seek public comments for new submittals under this section.
• SPS 384.10 (3) (e) 2. modernizes and clarifies the process for soliciting public input on POWTS component manuals and clarifies that public comment will be solicited for a minimum of 14 days. The proposed rule removes the requirement that solicitations for public comment be published in the official state newspaper and allows the department to post notices for seeking public comment on the department’s website. This change will decrease associated costs and provide the public with improved access to information about POWTS components.
• SPS 384.30 (6) (j) clarifies the standards for sand used as a treatment medium.
SPS 385.60 (2) is revised to adequately reflect the current use of Interpretative Determination Reports (IDR).
• The rule revises the format and updates the financial tables (Tables 387.30-1 to 387.30-6) used for the Wisconsin Fund.
• Additional revisions were made throughout the rule to update the references to adopted standards and improve clarity, style, and format.
Summary of, and comparison with, existing or proposed federal regulation:
Under 7 CFR 1924.107, utilities, all development under this subpart must have adequate, economic, safe, energy efficient, dependable utilities with sufficient easements for installation and maintenance. (Utilities include POWTS.) Under 40 CFR 35.918, individual systems and the requirements for discharge of effluents, the U.S. EPA has the authority to prescribe requirements for individual on-site wastewater treatment systems, as well as the provisions of financial assistance. In addition, best practicable waste treatment criteria published by EPA under section 304 (d) (2) of this Act shall be met for disposal of effluent on or into the soil from individual POWTS systems. Under 40 CFR, subch. B, part 31, this rule establishes uniform criteria for POWTS where financial assistance is available on the state and local levels.
Comparison with rules in adjacent states:
Illinois: The Illinois Department of Public Health (IDPH) regulates the installation of all private sewage disposal systems that have no surface discharge. There are approximately 90 local health agencies in Illinois that review plans, either by authority of a local ordinance or as an agent of the Department. IDPH also licenses or certifies Private Sewage Disposal Installation Contractors, Private Sewage Disposal Pumping Contractors, Portable Sanitation Businesses, Portable Sanitation Technicians and Portable Sanitation Technician Trainees. Effective January 1, 2014, the State of Illinois enacted new changes to the Private Sewage Disposal Code. The new changes included new approval, inspection, maintenance, and record-keeping requirements. No state funding program or mechanism exists in Illinois to assist homeowners replacing failing systems or installing new systems.
Iowa: Requirements relating to the design, location, installation, use and maintenance of installation private sewage systems can be found in Chapters 64 and 69 of the Iowa Administrative Code. IAC 567-Chapter 69, Private Sewage Disposal Systems of the Iowa Department of Natural Resources, regulates domestic wastewater from 4 homes or less or non-residential wastewater with a flow of less than 1,500 gallons per day. Private sewer systems are regulated by local boards of health in conjunction with the Iowa Department of Natural Resources. The DNR standards are primarily a prescriptive code giving design criteria for each alternative type of secondary treatment system permitted. Counties have the authority to allow alternative or innovative performance based systems and are required to enter basic information about the systems into the state onsite wastewater database system. An estimated 100,000 septic systems in Iowa are at substandard levels. Funding assistance is available to individuals to replace inadequate onsite sewer systems. Michigan: Michigan is the only state in the nation without uniform standards governing how on-site sewage treatment systems are designed, built, installed, and maintained. Eleven counties exercise some oversight of septics, including regular inspections, but they are unregulated in the remaining 72 counties. Michigan also does not have a statewide licensing/certification program for individual onsite wastewater systems. Standardized criteria is used by the Michigan Department of Environmental Quality and by 44 local health departments, which develop their own local rules to regulate single- and two-family systems. Reports conservatively estimate that nearly 10 percent of the state’s septic systems – about 130,000 systems – are failing. There is no funding assistance program available to homeowners replacing failing systems or installing new systems.
Minnesota: Onsite wastewater regulations are split between one or more agencies in Minnesota. Statute, Chapter 115, relating to water pollution control and sanitary districts, establishes rules for “Individual and Alternative Discharging Sewage Treatment Systems.” The rules require counties to adopt local ordinances containing minimum standards and criteria for the design, location, installation, use, maintenance, and closure of subsurface sewage treatment systems (SSTS). These regulations detail: Minimum technical standards for individual and mid-size SSTS (Chapter 7080 and 7081); A framework for local administration of SSTS programs (Chapter 7082) and; Statewide licensing and certification of SSTS professionals, SSTS product review and registration, and establishment of the SSTS Advisory Committee (Chapter 7083). The Minnesota Pollution Control Agency (MPCA) administers MN Rule 7080, the statewide rule regarding onsite sewage treatment systems and licensing program for onsite professionals. In 2004, 39 percent of all Minnesota septics were failing. In 2015, the legislature passed regulations requiring permits and regular inspections to be conducted once every three years for existing systems. Permit fees cover the program costs. A funding program is available to assist low-income homeowners to replace failing systems or install new systems. Summary of factual data and analytical methodologies:
The department established an advisory committee to comprehensively review administrative rules related to POWTS. The committee members represent stakeholders involved in the private sewage system industry including designers, contractors, regulators, academics, and manufacturers. The committee met periodically from November 2015 to March 2017 to review rule provisions and best practice standards and to make recommendations for revising the department’s rules relating to POWTS.
The department solicited financial information from private onsite wastewater treatment system installers and used financial information collected as part of the replacement and rehabilitation program to estimate the maximum state share of support for rehabilitation or replacement of private onsite wastewater treatments as authorized under s. 145.245, Stats. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
The proposed rules was posted for a period of 14 days to solicit public comment on economic impact, including how the proposed rules may affect small businesses, local government units, and individuals.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis document is attached.
Effect on small business:
These proposed rules do not have an economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department’s Regulatory Review Coordinator may be contacted by email at Kirsten.Reader@wisconsin.gov, or by calling (608) 267-2435.
