Chapter NR 123

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.

NR 123.09 NR 123.09 Enforcement. The following sanctions may be imposed for noncompliance with s. 281.75, Stats., the provisions of this chapter or any award made under this chapter:

NR 123.09(1) (1) The award may be terminated under s. NR 123.08;

NR 123.09(2) (2) Project costs directly related to the noncompliance may be declared ineligible;

NR 123.09(4) (4) Other administrative or judicial remedies may be instituted as legally available and appropriate.

NR 123.09(5) (5) The department may seek recovery of some or all payments.

NR 123.09 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; am. (intro.) and r. (3), 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 123.20 NR 123.20 Eligibility of claimant.

NR 123.20(1) (1) 

NR 123.20(1)(a) (a) A claim may be submitted for the replacement of a contaminated private water supply which is contaminated at the time the claim is submitted under s. NR 123.04, irrespective of the time the contamination is or could have been discovered in the private water supply.

NR 123.20(1)(b) (b) A claim may be submitted for the replacement of a contaminated private water supply which does not comply with ch. NR 812 at the time of submission of the claim.

NR 123.20(1)(c) (c)

NR 123.20(1)(c)1. 1. In order to be eligible for an award under this chapter, the annual family income of the landowner or lessee of the property on which a contaminated private water supply is located may not exceed $65,000.

NR 123.20(1)(c)2. 2. Except as provided under subd. 4., annual family income shall be based upon the adjusted gross income of the landowner or lessee and landowner’s or lessee’s spouse, if any, as computed for Wisconsin income tax purposes for the taxable year prior to the year in which the claim is made.

NR 123.20(1)(c)3. 3. The department shall determine county median family income based on statistics provided by the federal department of housing and urban development for the taxable year prior to the year in which the claim is made.

NR 123.20(1)(c)4. 4. The claimant shall submit a copy of the landowner’s or lessee’s joint Wisconsin income tax return for the year prior to the year in which the claim is made; or, if filing separately, the landowner’s or lessee’s separate Wisconsin income tax return and the separate Wisconsin income tax return of his or her spouse, if any, for the year prior to the year in which the claim is made. The department may disregard the Wisconsin income tax return for the year prior to the year in which the claim is made and may determine annual family income based on satisfactory evidence of income in the current year as provided under s. NR 123.22 (2) (g) 2. through 4.

NR 123.20(2) (2) 

NR 123.20(2)(a) (a) Except as provided under sub. (4), a landowner or lessee of property on which a contaminated private water supply is located, or the spouse, dependent, heir, assignee or legal representative of the landowner or lessee may submit a claim under this chapter.

NR 123.20(2)(b) (b) The department shall consolidate claims if more than one claimant submits a claim to replace the same contaminated private water supply.

NR 123.20(2)(c) (c) The department may consolidate claims and recommend the replacement of several contaminated private water supply systems with a single water supply system if it deems the replacement to be the most cost effective solution and the claimants agree to a single system. Each original claimant shall be eligible for an award amount as established under s. NR 123.24 for their share of the cost of the replacement system.

NR 123.20(3) (3) The department may delay approval of a claim if the department determines that a municipal water supply may be the most feasible solution to the problem of contaminated private water supplies in the area.

NR 123.20(4) (4) The following may not submit a claim under this subchapter:

NR 123.20(4)(a) (a) The state;

NR 123.20(4)(b) (b) An office, department, independent agency, institution of higher education, association, society, or other body in state government;

NR 123.20(4)(c) (c) An authority created under ch. 231 or 234, Stats.;

NR 123.20(4)(d) (d) A city, village, town, county or special purpose district;

NR 123.20(4)(e) (e) A federal agency, department or instrumentality;

NR 123.20(4)(f) (f) An interstate agency.

NR 123.20 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; cr. (1) (c), Register, February, 1991, No. 422, eff. 3-1-91; r. and recr. (1) (c) 1., Register, April, 1995, No. 472, eff. 5-1-95; correction in (1) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1995, No. 472.

NR 123.21 NR 123.21 Eligible and ineligible costs.

NR 123.21(1) (1) Eligible costs. Eligible costs include the following items:

NR 123.21(1)(a) (a) Obtaining an alternate water supply for a maximum period of one year after the date of issuance of a proceed notice or an award as provided in s. NR 123.23, or until the replacement water supply or equipment used for treating the contaminated private water supply has been installed and completed, whichever is earlier. If it is determined by the secretary of the department that the contamination in the private water supply can be expected to be remedied in 2 years or less, an award or proceed notice may be issued for an alternate water supply for up to a 2 year period or until the well is no longer contaminated, whichever is earlier. At the end of this period, the department shall review water quality data for this water supply to determine if contamination has been remedied. If the well is still contaminated, the department shall request the claimant to submit any information necessary to complete his or her claim application. Once the claim is complete, the application review process will resume.

NR 123.21(1)(b) (b) A replacement water supply which includes new or reconstructed wells, providing for a municipal water supply or providing a connection to an existing public or private water supply.

NR 123.21(1)(c) (c) Equipment used for treating the contaminated private water supply only if it is not feasible to remedy the contamination with a replacement water supply.

NR 123.21(1)(d) (d) Other costs as deemed necessary by the department. These may include but are not limited to the following:

NR 123.21(1)(d)1. 1. Purchasing and installing a pump, if a new pump is necessary for the new or reconstructed private water supply.

NR 123.21(1)(d)2. 2. The cost of abandoning a contaminated private water supply, if a new private water supply is constructed or if providing for a public water supply or if connection to an existing private water supply is obtained.

NR 123.21(1)(d)3. 3. The cost of obtaining a maximum of 2 water sample analyses to show that the private water supply was contaminated if the cost of those tests was originally paid by the claimant. Payment will be made for analysis for additional parameters if these tests were requested by the department as part of the 2 tests demonstrating well contamination.

NR 123.21(1)(d)4. 4. Replacement, relocation or installation of new piping, pitless adapters, pressure or booster tanks, or both, and any other appurtenances deemed necessary by the applicant and approved by the department to connect the replacement water supply to the buildings served by it.

NR 123.21(1)(d)5. 5. Landscaping costs to restore the site to preconstruction conditions. Costs of improvement or decoration are not eligible. Landscaping costs include the costs of excavating and replacing portions of streets, sidewalks, driveways or other similar items to allow for the installation or relocation of piping.

NR 123.21(1)(e) (e) If the replacement water supply is to be provided by connection to a municipal water supply, the eligible costs include the costs listed under par. (d) 2., 3. and 5., and the following additional items:

NR 123.21(1)(e)1. 1. The claimant’s costs of obtaining an alternate water supply for a maximum period of 2 years after the date of issuance of a proceed notice or an award as provided in s. NR 123.23, or until the municipal water supply has been installed and completed, whichever is earlier.

NR 123.21(1)(e)2. 2. The claimant’s costs assessed by the municipality for the municipality’s direct capital costs of providing a municipal water supply. These costs may include the direct capital costs for the installation of surface water inlet piping, treatment and appurtenances, new wells, pumps, pump controls, pumphouses, water storage facilities, distribution mains, water meters, auxiliary power, valves and other appurtenances, test wells and continuous chlorination. Eligible costs are limited to the minimum capacity necessary to provide a municipal water supply to the dwelling unit with a contaminated private water supply. The minimum capacity does not include capacity required for fire protection, residential and industrial growth, or dwelling units not having a contaminated private water supply.

NR 123.21(1)(e)3. 3. The cost of installing the lateral connection from the distribution main to the dwelling unit with a contaminated private water supply.

NR 123.21(1)(e)4. 4. The cost of connecting the lateral connection to the internal plumbing of the dwelling unit with a contaminated private water supply.