Chapter NR 123

NR 123.01 NR 123.01 Purpose and duties of the department.

NR 123.01(1) (1) Purpose. The purpose of this chapter is to establish rules, under s. 281.75, Stats., for the implementation and administration of a financial assistance program for the replacement of contaminated private water supplies.

NR 123.01(2) (2) Duties. The department shall:

NR 123.01(2)(a) (a) Establish, by rule, procedures for the submission, review and approval of claims under this chapter.

NR 123.01(2)(b) (b) Assist claimants in submitting applications for compensation under this chapter.

NR 123.01(2)(c) (c) Establish casing and liner depth and other construction requirements for a new or reconstructed private water supply.

NR 123.01(2)(d) (d) Issue awards under this chapter.

NR 123.01 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; am. (1), Register, February, 1991, No. 422, eff. 3-1-91; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1999, No. 527.

NR 123.02 NR 123.02 Applicability. This chapter applies to contaminated private water supplies compensable under s. 281.75, Stats. Well compensation grants awarded prior to August 9, 1989 are governed by s. 281.75, Stats., and this chapter as they existed on August 8, 1989. This chapter does not apply to contamination which is compensable under subch. II of ch. 107, Stats., or s. 293.65 (4), or 295.61 (8), Stats.

NR 123.02 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; am. Register, February, 1991, No. 422, eff. 3-1-91; correction made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1999, No. 527; CR 13-057: am. Register July 2015 No. 715, eff. 8-1-15; correction made under s. 35.17, Stats., Register July 2015 No. 715.

NR 123.03 NR 123.03 Definitions.

NR 123.03(1) (1) “Advisory” means a written opinion, issued by the department, containing a specific descriptive reference to the well or private water supply and recommending that the well or private water supply not be used because of potential human health risks.

NR 123.03(2) (2) “Alternate water supply” means a supply of potable water obtained in bottles, by tank truck or by other similar means, or a temporary connection to an existing private water supply, supplied at a capacity sufficient to satisfy water use functions impaired by the contaminated private water supply.

NR 123.03(3) (3) “Approval” means a written approval of the department.

NR 123.03(4) (4) “Connection to an existing private water supply” means a connection to an existing private water supply that tests free from coliform bacteria, and is not a contaminated private water supply.

NR 123.03(5) (5) “Contaminated well” or “contaminated private water supply”means a well or a private water supply which:

NR 123.03(5)(a) (a) Produces water containing one or more substances of public health concern, other than bacteria or nitrates, in excess or a primary maximum contaminant level promulgated in the national drinking water standards in 40 CFR 141 and 143; or

NR 123.03(5)(b) (b) Produces water containing one or more substances of public health concern, other than bacteria or nitrates, in excess of an enforcement standard established in ch. NR 140; or

NR 123.03(5)(c) (c) Is subject to an advisory for substances other than bacteria or nitrates; or

NR 123.03(5)(d) (d) Is a livestock water supply or is a residential water supply which is used as a source of potable water for livestock as well as for a residence, and;

NR 123.03(5)(d)1. 1. Is used at least 3 months each year and while in use provides an estimated average of more than 100 gallons per day for consumption by livestock; and

NR 123.03(5)(d)2. 2. Produces water containing nitrates in excess of 40 parts per million expressed as nitrate-nitrogen.

NR 123.03(6) (6) “Department” means the department of natural resources.

NR 123.03(7) (7) “Dwelling unit” means a principal or part-time residence such as a second home or vacation or recreation residence.

NR 123.03(9) (9) “Lessee” means:

NR 123.03(9)(a) (a) A claimant who has a lease with a property owner with provisions for the lessee to perform property improvements; or

NR 123.03(9)(b) (b) A claimant who has a lease with a property owner and who has secured the property owner’s permission for improvement of the private water supply through the owner’s signature on the claim form or a letter from the owner.

NR 123.03(10) (10) “Livestock” has the meaning specified in s. 95.80 (1) (b), Stats., and includes poultry.

NR 123.03(11) (11) “Livestock water supply” means a well which is used as a source of potable water only for livestock and which is:

NR 123.03(11)(a) (a) Approved by the department of agriculture, trade and consumer protection for grade A milk production under s. 97.24, Stats.; or

NR 123.03(11)(b) (b) Constructed by boring or drilling.

NR 123.03(12) (12) “Municipality” means a city, town, village, county, county or other utility district, or town sanitary district.

NR 123.03(13) (13) “Municipal water supply” means a private or public water supply owned or operated by a municipality.

NR 123.03(14) (14) “Not feasible” means not physically, mechanically or functionally possible.

NR 123.03(15) (15) “Plumbing” means that portion of the water distribution piping extending from the well to the various distribution points of use.

NR 123.03(16) (16) “Private water supply” means a residential water supply or a livestock water supply.

NR 123.03(17) (17) “Public water supply” means a system used for human consumption, if such system has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year.

NR 123.03(18) (18) “Pump installer” has the meaning specified in ch. NR 812.

NR 123.03(19) (19) “Records” means books, documents, papers, accounting records, other evidence relating to project work, and accounting procedures and practices.

NR 123.03(20) (20) “Replacement water supply” means:

NR 123.03(20)(a) (a) Reconstruction of a contaminated private water supply;

NR 123.03(20)(b) (b) Construction of a new private water supply;

NR 123.03(20)(c) (c) Provision of a public water supply to replace the contaminated private water supply; or

NR 123.03(20)(d) (d) Connection to an existing private water supply.

NR 123.03(21) (21) “Residential water supply” means a well which is used as a source of potable water for humans or humans and livestock and is connected to 14 or less dwelling units.

NR 123.03(22) (22) “Sand point well” has the same meaning as a “driven point well” as defined in ch. NR 812.

NR 123.03(24) (24) “Well” means an excavation or opening in the ground made by boring, drilling or driving for the purpose of obtaining a supply of groundwater. “Well” does not include dug wells and springs.

NR 123.03(25) (25) “Well driller” has the meaning specified in ch. NR 812.

NR 123.03 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; r. (8) and (23), Register, February, 1991, No. 422, eff. 3-1-91; correction in (18), (22) and (25) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1995, No. 477.

NR 123.04 NR 123.04 Determination of contamination. Contamination of a private water supply, as defined in s. NR 123.03 (5), shall be established by:

NR 123.04(1) (1) The test analyses of at least 2 samples of water, taken at least 2 weeks apart and not more than 2 years apart. All samples shall be taken within 2 years prior to the date that the claimant’s application is received by the department. The department may reject test results which are not sufficiently recent. The samples shall be analyzed by the state laboratory of hygiene or by a laboratory certified under s. 299.11, Stats. Samples shall be analyzed using a methodology specified in ch. NR 809 or from a reference authorized by rules promulgated pursuant to s. 299.11 (7) (b), Stats.; or

NR 123.04(2) (2) An advisory issued or reviewed by the department after July 1, 1984.

NR 123.04 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1999, No. 527.

NR 123.05 NR 123.05 Allocation of funds.

NR 123.05(1) (1) The department shall allocate money for the payment of completed claims and amendments according to the order in which completed claims and amendments are received by the department. A list shall be compiled of completed claims and amendments in the order received. The department may conditionally approve a completed claim or amendment even if the appropriations are insufficient to pay the claim or amendment. The department shall allocate money for the payment of a claim or amendment which is conditionally approved as soon as funds become available. A claim or amendment shall be considered complete when:

NR 123.05(1)(a) (a) All eligibility requirements are met in s. NR 123.20;

NR 123.05(1)(b) (b) All forms required in s. NR 123.22 are submitted; and

NR 123.05(1)(c) (c) All information necessary for departmental evaluation and acceptance of the least costly feasible replacement water supply or the equipment to be used for treating the contaminated private water supply is provided. If the department does not approve the claimant’s chosen solution, the reasons shall be communicated in writing to the claimant explaining why the solution is not acceptable. If the claim has been denied for reasons other than those specified in s. NR 123.06, the department shall assist the claimant in revising the claim to meet, if possible, the intent of s. 281.75, Stats.

NR 123.05(2) (2) If any department approvals other than the award or proceed notice need to be obtained by the claimant or other parties before installation of the replacement water supply or the equipment to be used for treating the contaminated private water supply can proceed, the claimant shall be informed in writing that they have been placed on the list of completed claims and amendments subject to the following conditions:

NR 123.05(2)(a) (a) Within 60 days of the date of the written notice from the department, applications shall be submitted to receive any department approvals that need to be obtained.

NR 123.05(2)(c) (c) Within 60 days of the date of a public other than municipal water supply or private water supply approval by the department, the claimant shall submit bidding documents or finalized cost estimates. Any bidding documents shall include the tabulation of all bids, copies of the low bidder’s proposals, and the claimant’s proposed action on the bids.

NR 123.05(3) (3) The department shall cancel the allocation of funds to a claimant if the claimant does not meet the requirements of sub. (2).

NR 123.05(4) (4) If claim and amendment requests exceed funds available, the department shall determine those claims and amendments which will receive an award based on their ranking on the list. After claims and amendments are determined to be complete and eligible, awards shall be issued to the extent that funds are made available to the department. After funds become depleted, eligible completed claims and amendments shall be added to the list and conditionally approved. Proceed notices shall be issued to notify claimants of conditional approval. Awards shall be issued if and when additional funds become available.

NR 123.05 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; am. (1) (a), (b) and (c) and r. (2) (b), Register, February, 1991, No. 422, eff. 3-1-91.; correction in (1) (c) made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1999, No. 527.

NR 123.06 NR 123.06 Denial of claims.

NR 123.06(1) (1) The department shall deny a claim if:

NR 123.06(1)(a) (a) The claim is not within the scope of this chapter as determined by the department.

NR 123.06(1)(b) (b) The claimant submits a fraudulent claim.

NR 123.06(1)(c) (c) The claim is for reimbursement of costs incurred before the date of issuance of an award or proceed notice except costs allowed under ss. NR 123.21 (1) (d) 3. and 123.27.

NR 123.06(1)(d) (d) One or more of the contaminants upon which the claim is based was introduced into the well through the plumbing connected to the well.

NR 123.06(1)(e) (e) One or more of the contaminants upon which the claim is based was introduced into the well intentionally by a claimant or a person who would be directly benefitted by payment of the claim, or a person who aids and abets the introduction of the contaminant, or a person who is a party to a conspiracy with another to commit, advise, hire, counsel or procure another to introduce the contaminants into the well.

NR 123.06(1)(f) (f) All of the contaminants upon which the claim is based are naturally occurring substances and the concentration of contaminants in water produced by the well does not significantly exceed the background concentration of the contaminants in groundwater at that location.

NR 123.06(1)(g) (g) Except as provided in s. NR 123.26, an award has been made under this chapter within the previous 10 years for the private water supply.

NR 123.06(1)(h) (h) A residential water supply is contaminated by bacteria or nitrates or both and is not contaminated by any other substance.

NR 123.06(1)(i) (i) A livestock water supply is contaminated by bacteria and is not contaminated by any other substance.

NR 123.06(1)(j) (j) The claimant submits a claim to replace a contaminated public water supply that is connected to 15 or more dwelling units.

NR 123.06 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; am. (1) (c) and r. (2), Register, February, 1991, No. 422, eff. 3-1-91.

NR 123.07 NR 123.07 Variances. The department may approve variances from non-statutory requirements of this chapter upon the request of a claimant when it is determined that such variances are essential to effect necessary actions or department objectives, and where special circumstances make such variances in the best interests of the state. Before granting a variance, the department shall take into account such factors as good cause, circumstances beyond the control of the claimant, and financial hardship.

NR 123.07 Note Note: Variances may not be obtained from statutory requirements.

NR 123.07 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86.

NR 123.08 NR 123.08 Termination of awards. An award may be terminated in whole or in part by the department.

NR 123.08(1) (1) The department and a claimant may enter into an agreement to terminate the award at any time pursuant to this section. The agreement shall establish the effective date of termination of the project and award, the basis for settlement of award termination costs, and the amount and date of payment of any sums due either party.

NR 123.08(2) (2) A claimant may not unilaterally terminate the work authorized in the award, except for good cause. The claimant shall promptly give written notice to the department of any complete or partial termination of the project work by the claimant. If the department determines that there is good cause for the termination of all or any portion of the project work, the department may enter into a termination agreement or unilaterally terminate the award pursuant to sub. (3), effective on the date of cessation of the project work by the claimant. If the department determines that a claimant has ceased work on the project without good cause, the department may unilaterally terminate the award pursuant to sub. (3).

NR 123.08(3) (3) Awards may be terminated by the department in accordance with the following procedure:

NR 123.08(3)(a) (a) The department shall give not less than 10 days written notice to the claimant of its intent to terminate an award in whole or in part. Notice shall be served on the claimant personally or by mail, certified mail — return receipt requested.

NR 123.08(3)(b) (b) The department shall consult with the claimant prior to any termination. After the department has received any views expressed by the claimant, the department may terminate the award in whole or in part. Any such termination shall be in writing and shall state the reasons for terminating the award. Notices of termination shall be served on the claimant personally or by mail, certified mail — return receipt requested.

NR 123.08(3)(c) (c) The department may terminate an award for good cause if negotiations and payment of appropriate termination settlement costs are offered to the claimant.

NR 123.08(4) (4) Upon termination, the claimant shall refund or credit to the state of Wisconsin that portion of any funds paid or owed to the claimant and allocable to the terminated project work, except such an amount as may be required to meet commitments which had become enforceable prior to the termination. The claimant may not make any new commitments without department approval. The claimant shall reduce the amount of outstanding commitments insofar as possible and report to the department the uncommitted balance of funds awarded.

NR 123.08 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86.