Chapter NR 166

NR 166.03(41) (41) “Population” means the most recent year’s final population estimate published by the DOA demographic services center for the city, town, or village that submitted priority evaluation and ranking information as required by the department. For a public water system owned by other than a city, town, or village, “population” means the most recent population count or estimate done for the system or municipality and provided to the department by the municipality for purposes such as completing a sanitary survey or an estimate determined by multiplying the number of households served by the water system by the average household size in the area, as determined by the department.

NR 166.03(42) (42) “Priority score” means the numerical value determined by the department that is assigned to each project in accordance with ss. NR 166.23 and 166.24.

NR 166.03(43) (43) “Private service line” means the portion of a service line that is privately-owned.

NR 166.03 Note Note: The privately-owned portion is typically the segment that is downstream of the curb stop and located on private property but may include a portion in the public right of way if the municipality considers the private residential, commercial, institutional, or industrial users to be the owners of the complete service line from the publicly-owned water main to the private structure being served.

NR 166.03(44) (44) “Professional services” means non-construction work provided under contract for the project, including engineering, archaeological, legal, financial, or technical services, provided by a higher education institution or a formally certified member of a professional body, such as a trade association or organized profession.

NR 166.03(45) (45) “Project” means a set of activities intended to result, or that has resulted in completed construction of drinking water system related facilities.

NR 166.03(46) (46) “Project closeout” means the procedures described in s. NR 166.16 (4) (b).

NR 166.03(47) (47) “Project completion date” means the earliest date on which all of the following apply:

NR 166.03(47)(a) (a) Construction of the scored project is complete.

NR 166.03(47)(b) (b) The department or its agents have certified that the scored project was constructed according to department-approved plans and specifications.

NR 166.03(47)(c) (c) The department or its agents have certified that the facilities are operating according to design.

NR 166.03(47)(d) (d) The project closeout is complete.

NR 166.03(47)(e) (e) The department has notified the recipient that the scored project is complete.

NR 166.03(48) (48) “Public service line” means the portion of a service line that is owned by the municipality.

NR 166.03 Note Note: The public service line is typically the segment of pipe that goes from the public water main to the curb stop at the end of the public right of way but may include a segment of pipe located on private property if that segment is owned by the municipality.

NR 166.03(49) (49) “Public water system” means a system for the provision to the public of water for human consumption through pipes and other conveyances, and includes any collection, treatment, storage, and distribution facilities used primarily in connection with the system that are under control of the water supplier for the public water system, if the water system has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days each year. A public water system is either a community water system or a non–community water system.

NR 166.03 Note Note: The definition of public water system as regulated by this chapter is broader and includes more water systems than those governed by the Public Service Commission under its definition of a public utility in ch. 196, Stats.

NR 166.03(50) (50) “Recipient” means any municipality or group of municipalities that has been awarded or has received financial assistance under ss. 281.59 and 281.61, Stats.

NR 166.03(51) (51) “Replacement” means obtaining and installing equipment, accessories, or appurtenances that are necessary during the useful life of the public water system project funded through the SDWLP to maintain or improve the capacity and performance levels for which the public water system was designed and constructed.

NR 166.03(52) (52) “Safe drinking water act” means the federal safe drinking water act, 42 USC 300f to 300j–26.

NR 166.03(53) (53) “Safe drinking water loan program” or “SDWLP” has the meaning given in s. 281.61 (1) (d), Stats.

NR 166.03(54) (54) “Scored project” means a project for which the department reviewed the scope provided by the applicant and assigned a priority score based on the scope determined by the department to be eligible for financial assistance under a single SDWLP project number.

NR 166.03(55) (55) “Service line” means a pipe located in the public right–of–way or on private property that connects a residential, commercial, institutional, or industrial user to a publicly- or privately- owned water system.

NR 166.03(56) (56) “Significant noncomplier” means a public water system that the U. S. environmental protection agency has reported to the department to be in significant noncompliance with any requirement of a primary drinking water regulation or variance under 42 USC 300g-1.

NR 166.03(57) (57) “Subscribing municipality” means a municipality that receives piped water for human consumption from another municipality that owns a public water system.

NR 166.03(58) (58) “Subsidy” means the amount provided by the environmental improvement fund to a recipient of SDWLP financial assistance to reduce the interest rate of a loan made under the SDWLP from the market interest rate to a lesser rate, or to forgive a portion of the principal of an SDWLP loan.

NR 166.03(59) (59) “Substantial completion” means the date on which construction of the scored project is sufficiently complete in accordance with the contract documents so that the owner can occupy or utilize the scored project for its intended use.

NR 166.03(60) (60) “Treatment technique” means one or more methods of treatment that are known to remove or inactivate giardia and viruses as described under ss. NR 810.29 and 810.31.

NR 166.03(61) (61) “Utility” means a public utility as defined in s. 196.01 (5) (a), Stats.

NR 166.03(62) (62) “Water rates” means a charge or system of charges levied on users of a water system for the user’s proportional share of the revenue requirement of a water system that consists of operation and maintenance expenses, depreciation, taxes, and return on investment.

NR 166.03(63) (63) “Water system” means all structures, conduits, and appurtenances, including water meters, by means of which water is obtained or drawn from a source and eventually delivered to consumers, except piping and fixtures inside buildings served and any private service lines.

NR 166.03(64) (64) “Women business enterprise” or “WBE” means a DBE that is owned or controlled on a daily basis by a woman or women.

NR 166.03 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23; correction in (38) (f), (49) made under s. 35.17, Stats., Register October 2023 No. 814.

subch. II of ch. NR 166 Subchapter II — Financial Assistance Requirements

NR 166.04 NR 166.04 Types of financial assistance available.

NR 166.04(1) (1) The department and DOA may, subject to applicable requirements of ss. 281.59 and 281.61, Stats., and ch. Adm 35, provide to an eligible applicant for a scored project any of the following types of financial assistance:

NR 166.04(1)(a) (a) Subject to the limits established in s. NR 166.07 (3), the purchase or refinance of a municipality’s interim debt.

NR 166.04(1)(b) (b) The guarantee of, or purchase of insurance for, municipal obligations for construction of a water system if the guaranteed or purchased insurance would improve credit market access or reduce interest costs on the municipal obligations.

NR 166.04(1)(c) (c) Loans below the market interest rate.

NR 166.04(1)(d) (d) Using funds received as federal capitalization grants under 42 USC 300j-12, any other type of assistance that is consistent with the federal program for safe drinking water state loan funds under 42 USC 300j-12 or any other federal law providing funding for or otherwise relating to that program, except funds received as federal capitalization grants may not be used to provide principal forgiveness to a private owner of a community water system.

NR 166.04 Note Note: The language included in par. (d) and under s. 281.61 (2r) (e), Stats., allows the department to provide principal forgiveness as part of a financial assistance agreement.

NR 166.04(2) (2) If a project reaches substantial completion more than 3 years prior to the date the applicant submits a complete application for financial assistance under s. NR 166.08 (4) or the applicant already has long-term affordable debt outstanding for a project that is already complete or has reached substantial completion prior to the application submittal date, the department and DOA may not provide financial assistance for the project.

NR 166.04 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.05 NR 166.05 Annual funding policy, project priority list, and funding list.

NR 166.05(1) (1) Funding policy and project priority list. The department may produce an annual SDWLP funding policy in conjunction with the fiscal year’s project priority list established under s. NR 166.25. The funding policy may be in the form of the SDWLP annual intended use plan and may describe methods for making funding determinations and other policies related to the fiscal year. When the department publishes a funding policy for a given year, it shall provide an opportunity for public comment regarding the funding policy.

NR 166.05(2) (2) Funding list. The department shall prepare an annual funding list in accordance with s. 281.61 (8), Stats., and s. NR 166.25.

NR 166.05 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.06 NR 166.06 Project eligibility.

NR 166.06(1) (1) Eligible projects. Under s. 281.61 (2), Stats., the department and DOA administer a financial assistance program for projects that facilitate compliance with national primary drinking water regulations under 42 USC 300g-1 or otherwise significantly further the health protection objectives of the Safe Drinking Water Act, 42 USC 300f to 300j-26. Under s. 281.61 (2), Stats., a municipality may receive financial assistance under this chapter for a project that has any of the following purposes:

NR 166.06(1)(a) (a) Address safe drinking water act health standards that have been exceeded or prevent future violations of health standards and regulations contained in ch. NR 809. This includes projects to maintain compliance with existing regulations for contaminants with acute health effects and regulations for contaminants with chronic health effects.

NR 166.06(1)(b) (b) Replace or construct infrastructure if necessary to maintain compliance with or further the public health protection goals of the safe drinking water act. This includes projects with any of the following purposes:

NR 166.06(1)(b)1. 1. Rehabilitate or develop sources to replace contaminated sources, excluding open reservoirs, dams, dam rehabilitation, and water rights.

NR 166.06(1)(b)2. 2. Install or upgrade treatment facilities if, in the department’s opinion, the project would improve the quality of drinking water to comply with primary or secondary drinking water standards.

NR 166.06(1)(b)3. 3. Install or upgrade storage facilities, including finished water reservoirs, to prevent microbiological contaminants from entering the public water system.

NR 166.06(1)(b)4. 4. Install, replace, or rehabilitate transmission and distribution pipes to prevent contamination caused by leaks or breaks in the pipe, or improve water pressure to safe levels.

NR 166.06(1)(c) (c) Consolidate existing community water systems that have technical, financial, or managerial difficulties. Projects for consolidating existing systems shall be limited in scope to the service area of the systems being consolidated.

NR 166.06(1)(d) (d) Purchase a portion of another public water system’s capacity if it is the most cost–effective solution.

NR 166.06(1)(e) (e) Restructure a public water system that is in noncompliance with the safe drinking water act requirements or lacks the technical, managerial, and financial capability to maintain the system if the assistance will ensure that the system will return to and maintain compliance with the safe drinking water act requirements.

NR 166.06(1)(f) (f) Create a new community water system or expand an existing community water system that, upon completion, will address an existing public health threat from contaminated drinking water provided by individual wells or surface water sources. Projects to address existing public health threats associated with individual wells or surface water sources shall be limited in scope to the specific geographic area affected by contamination and shall be a cost-effective solution to resolve the problem threatening public health. Projects under this paragraph must meet all of the following criteria:

NR 166.06(1)(f)1. 1. The municipality submits documentation, such as well sampling results, showing that the MCL for a microbiological, nitrate or nitrite, or chronic contaminant is exceeded by 40 percent or more of the individual wells or surface water sources within the affected area; or, for other public health threats, the municipality submits hydrogeological data or other documentation that indicates contamination is imminent.

NR 166.06(1)(f)2. 2. The department determines that a community water system is a necessary and appropriate response to the contamination.

NR 166.06(2) (2) Ineligible projects. The department may determine that an entire project or a portion of a project is ineligible for SDWLP financial assistance. If the department determines that a portion of a project is ineligible, it shall specifically identify the ineligible portion and the associated costs or prorate the amount of financial assistance provided to reflect the appropriate proportion of eligible to ineligible project costs, or both, in the financial assistance agreement. The following types of projects or portions of projects are not eligible for financial assistance under this chapter:

NR 166.06(2)(a) (a) Building or rehabilitating a dam.

NR 166.06(2)(b) (b) Purchasing or selling water rights, except if the water rights are owned by a public water system that is being purchased through consolidation as part of a capacity development strategy.

NR 166.06(2)(c) (c) Developing an open reservoir unless the reservoir is part of the treatment process and is located on the property on which the water treatment facility is located.

NR 166.06 Note Note: A finished water reservoir or a reservoir that is part of the treatment process and located on the property where the treatment facility is located is eligible under sub. (1) (b) 3.

NR 166.06(2)(d) (d) A project or a portion of a project needed primarily for fire protection.

NR 166.06(2)(e) (e) A project for a public water system that lacks adequate technical, managerial, and financial capability, unless assistance will ensure compliance.

NR 166.06(2)(f) (f) A project for a water system determined to be a significant noncomplier unless funding will ensure compliance with safe drinking water act requirements.

NR 166.06(2)(g) (g) A project or a portion of a project primarily intended to serve future growth.

NR 166.06(2)(h) (h) A project or a portion of a project for water systems owned by state or federal agencies.

NR 166.06(2)(i) (i) A project not reasonably necessary and appropriate to address a public health concern.

NR 166.06(2)(j) (j) Any portion of a project that is not reasonably necessary and appropriate to address a public health concern within the scope of the scored project, except when approved by the department as eligible and necessary for the efficient operation or integrity of the overall water system.

NR 166.06(2)(k) (k) Except for a project for which the project type falls under sub. (1) (c) or (d), any project from which no construction costs are to be funded through the SDWLP, unless another governmental agency is providing financing for the construction costs and the department receives acceptable documentation of the other agency’s commitment, as determined by the department.

NR 166.06(2)(L) (L) Any project that will serve 2 or more municipalities and to which any of the following applies, unless the applicant provides documentation that meets the requirements described under s. NR 166.08 (4) (i):

NR 166.06(2)(L)1. 1. The applicant will obtain water from another municipality’s water facilities.

NR 166.06(2)(L)2. 2. The applicant is providing water to another municipality.

NR 166.06(2)(m) (m) Projects of a municipality that is failing to substantially comply with conditions or requirements of s. 281.58 or 281.59, Stats., ch. Adm 35, this chapter, an existing financial assistance agreement with the SDWLP or the clean water fund program, or the terms of a federal or state grant used to pay the costs to plan, design, or construct a water system.

NR 166.06 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.07 NR 166.07 Cost eligibility.

NR 166.07(1) (1) Eligible costs. Allocable project-specific costs that are necessary and reasonable are eligible for financial assistance under this subsection. Eligible costs include expenses incurred by the municipality for any of the following items and activities when specific to the scope of a scored project, or when approved by the department as necessary and reasonable for the efficient operation or integrity of the overall water system:

NR 166.07(1)(a) (a) Abandonment. Abandonment of an entire water system or portions of a water system if approved in the plans and specifications of an eligible project or by department staff, including activities such as demolition, re-landscaping, and removal and disposal of debris.

NR 166.07(1)(b) (b) Access roads. Construction of roadways necessary to provide appropriate access to water system facilities such as wellhouses, storage tanks, and water treatment plants.

NR 166.07(1)(c) (c) Administrative buildings and equipment. Buildings, offices, and office equipment and furnishings used for purposes of operating a water system, such as administration and storage buildings when part of the scope of the scored project and included in the approved plans and specifications or otherwise approved by department staff. The department may prorate costs for buildings, offices, and office equipment and furnishings that are partially used for purposes not related to the water system.

NR 166.07(1)(d) (d) Administrative costs of a commission. Administrative, legal, and other costs incurred by a commission solely for the scored project if identifiable in a contract or agreement between the member municipalities.

NR 166.07(1)(e) (e) Compliance with state and federal requirements. Costs incurred for activities associated with complying with state and federal requirements related to the scored project.

NR 166.07 Note Note: State and federal requirements may include any of the following: Americans with Disabilities Act design and construction; green project reserve documentation; Davis-Bacon and Related Acts administration or other activities associated with wage rate requirements; DBE solicitation and documentation; activities associated with the use of products made in the United States; environmental review of project sites and other activities related to ch. NR 150 compliance, including costs of public notices and hearings; historical, architectural, archaeological, and cultural resources work identified during planning, design, or construction of the project and incurred prior to project closeout; signage requirements, including on a website or at a drinking water facility or project site; audit activities related to the federal single audit act portion of the municipality’s annual audit report until the project is complete.

NR 166.07(1)(f) (f) Construction activities. Activities defined in s. NR 166.03 (14) and included in construction contracts or performed by force account, including any of the following:

NR 166.07(1)(f)1. 1. Replacing, repairing, or rehabilitating a water system if identified in the plans and specifications as cost-effective and necessary.