Chapter NR 166

NR 166.20 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.21 NR 166.21 Noncompliance. Upon failure of the recipient to comply with s. 281.59 or 281.61, Stats., or with provisions of this chapter, the department may do any of the following:

NR 166.21(1) (1) Refuse to enter into a financial assistance agreement.

NR 166.21(2) (2) Seek penalties as provided in ch. 281, Stats.

NR 166.21(3) (3) Seek any other appropriate remedy, relief, or penalty.

NR 166.21 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.22 NR 166.22 Variances.

NR 166.22(1) (1) General. The department may, on its own initiative or pursuant to a written request from an applicant, approve a variance from a requirement of this chapter when it determines that special circumstances make a variance in the best interest of the state. Any variance approved shall be consistent with the objectives of ss. 281.59 and 281.61, Stats.

NR 166.22(2) (2) Applicability. The department may only approve a variance from any non–statutory requirement of this chapter.

NR 166.22(3) (3) Request for variance. An applicant shall submit any request for a variance in writing to the department as soon as it is determined a variance is needed. Each request for a variance shall contain all of the following:

NR 166.22(3)(a) (a) The name of the applicant and the SDWLP project number.

NR 166.22(3)(b) (b) The section of this chapter from which the applicant seeks a variance and a statement explaining why the variance is necessary.

NR 166.22(3)(c) (c) An adequate description of the variance desired, and the facts which the recipient believes warrant the department’s approving the variance.

NR 166.22(3)(d) (d) A statement as to whether the recipient has previously requested the same or a similar variance, and if so, the circumstances of the previous request.

NR 166.22(4) (4) Granting a variance. Before granting a variance, the department shall consider factors such as good cause, circumstances beyond the control of the recipient, emergencies, natural disasters, and financial hardship.

NR 166.22 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

subch. III of ch. NR 166 Subchapter III — Priority Scoring and Ranking System

NR 166.23 NR 166.23 Priority scoring criteria.

NR 166.23(1) (1) Purpose. The purpose of the priority scoring criteria is to establish a list of eligible projects to be funded in a manner that is in accordance with the federal requirements of the safe drinking water act, 42 USC 300j–12. Consistent with the act, the criteria in subs. (1) to (4) shall apply. The department may require documentation to support any points requested by the municipality. The department may also require a potential applicant to communicate with the department prior to priority evaluation and ranking form submittal to determine what type of documentation is appropriate to show existing contamination for projects that will expand an existing water system or create a new community water system.

NR 166.23(2) (2) General priority. The department shall give first priority to acute public health risks, particularly those related to microbiological organisms, and second priority to situations that pose chronic and longer-term health risks to consumers, such as organic chemical contamination. The scoring criteria also consider issues that are related to infrastructure upgrading or replacement to address those projects, or portions of a project, that are eligible for funding but not included in the first 2 priority groups, including projects to correct significant deficiencies or develop capacity in a water system.

NR 166.23 Note Note: The act requires, to the maximum extent practicable, that priority ranking be given to projects that: 1) address the most serious risk to human health; 2) are necessary to ensure compliance with the requirements of the safe drinking water act, including requirements for filtration; and 3) assist systems most in need on a per household basis according to state affordability criteria.

NR 166.23(3) (3) Risk to human health. The following criteria related to human health risks are divided into acute and chronic risk categories. The department shall assign points to a project based on criteria in a single category in par. (a), if applicable, or a single category in par. (b), if applicable, but not from both. If the severity of the problem is not reflected in any of the categories in par. (a) or (b), the department shall determine the number of points to assign to the project. This subsection also includes par. (c) which the department shall use when assigning points for a project that will eliminate lead service lines. The department shall assign points for risk to human health based on all of the following criteria as applicable to the project:

NR 166.23(3)(a) (a) Violations and exceedances. Project addresses a maximum contaminant level violation, an action level exceedance, or a treatment technique violation, or an acute or a chronic health hazard under any of the following requirements:

NR 166.23(3)(a)1. 1. ‘Acute contaminants.’ Acute contaminants are divided into 3 groups. Points shall be awarded in the following manner for a project that eliminates a problem that poses an acute health hazard from one of these groups:

NR 166.23(3)(a)1.a. a. Five hundred points shall be awarded to a project that proposes to eliminate a microbiological MCL violation that already occurred or will address a confirmed waterborne disease outbreak as defined in s. NR 809.04 (90), or a demonstrated microbiological contamination problem for a newly created community water system or for expanding an existing community water system in accordance with s. NR 166.06 (1) (f).

NR 166.23(3)(a)1.b. b. Four hundred points shall be awarded to a project that eliminates violations of filtration requirements in s. NR 810.29 and disinfection requirements in ss. NR 810.09 and 810.31, or confirmed microbial, including giardia and cryptosporidium, contamination found in finished water.

NR 166.23(3)(a)1.c. c. Three hundred points shall be awarded to a project that eliminates a continuing nitrate or nitrite MCL exceedance, or a demonstrated nitrate or nitrite problem for a newly created community water system or expansion of an existing community water system in accordance with s. NR 166.06 (1) (f).

NR 166.23(3)(a)2. 2. ‘Chronic contaminants.’ Chronic contaminants are divided into 5 subgroups: inorganics, volatile organic chemicals, synthetic organic chemicals, radionuclides, and disinfection byproducts. For a newly created community water system or for expanding an existing community water system in this subdivision, points shall be assigned by determining the 90th percentile sample for the project area. All individual wells or surface water sources in the project area shall be included in the determination. A single water sample from each individual well or surface water source shall be used for the determination. All water samples submitted shall be collected within the same 6-month period and shall be representative of current conditions. If there is no sample for an individual well or surface water source, a value of zero or no detect shall be used in the determination. The maximum point total that shall be awarded in this subdivision is 250 points. Points shall be awarded in the following manner for a project that eliminates a chronic health hazard from these groups of chemicals:

NR 166.23(3)(a)2.a. a. For each subgroup, other than the disinfection byproducts subgroup, only the MCL exceedance of greatest percentage magnitude shall be used for the point calculation, even though multiple contaminant MCL exceedances might be occurring. For exceedances in multiple subgroups, see subd. 2. c. The MCL exceedance shall be divided by the current MCL or AL and then multiplied by 50 to obtain a subgroup point total.

NR 166.23(3)(a)2.b. b. For the disinfection byproducts subgroup, the total sum disinfection byproducts exceedance as defined in s. NR 809.566 shall be used for the calculation.

NR 166.23(3)(a)2.c. c. For MCL exceedances in more than one subgroup, the highest point level of the subgroups shall be used as the primary number to be divided by the current MCL or AL and then multiplied by 50. The other subgroup exceedances will be divided by their respective MCL or AL and then multiplied by 10. The total point value shall be the sum of points in each subgroup.

NR 166.23(3)(b) (b) Anticipated violations and exceedances. Project prevents an anticipated MCL, AL, or treatment technique violation or critical health hazard. Points shall be awarded to a single group under either subd. 1. or 2. to a project that proposes to eliminate an anticipated acute or chronic health hazard under the following requirements:

NR 166.23(3)(b)1. 1. ‘Acute contaminants.’ Acute contaminants are divided into 3 groups. Points shall be awarded from one of the following groups for a project that eliminates an anticipated acute health hazard:

NR 166.23(3)(b)1.a. a. Three hundred points shall be awarded to a project that eliminates an anticipated microbiological MCL violation, where no actual violation has yet occurred.

NR 166.23(3)(b)1.b. b. Two hundred points shall be awarded to a project that proposes to eliminate anticipated violations of filtration requirements, or turbidity, in s. NR 810.29, or anticipated violations of the requirements of the federal long term 2 enhanced surface water treatment rule promulgated by the U.S. environmental protection agency as directed by the U.S. congress.

NR 166.23(3)(b)1.c. c. One hundred points shall be awarded to a project that proposes to eliminate an anticipated nitrate or nitrite violation.

NR 166.23(3)(b)2. 2. ‘Chronic contaminants.’ Chronic contaminants are divided into 5 subgroups: inorganics, volatile organic chemicals, synthetic organic chemicals, radionuclides, and disinfection byproducts. Points shall be awarded in the following manner for a project that eliminates an anticipated chronic health hazard from these groups of chemicals:

NR 166.23(3)(b)2.a. a. Twenty points shall be awarded to a project that proposes to eliminate an anticipated exceedance of an inorganic, volatile organic chemical, synthetic organic chemical, radionuclide, or disinfection byproducts contaminant.

NR 166.23(3)(b)2.b. b. Five points shall be awarded for each additional subgroup addressed by a project that eliminates an anticipated exceedance.

NR 166.23(3)(c) (c) Private LSL replacement. Points shall be awarded to watermain replacement projects that also include the replacement of private LSLs under the following defined quantities:

NR 166.23(3)(c)1. 1. Thirty points shall be awarded if at least 200 private LSLs are being removed as part of the project.

NR 166.23(3)(c)2. 2. Twenty-five points shall be awarded if at least 100 private LSLs but less than 200 are being removed as part of the project.

NR 166.23(3)(c)3. 3. Twenty points shall be awarded if at least 50 private LSLs but less than 100 are being removed as part of the project.

NR 166.23(3)(c)4. 4. Fifteen points shall be awarded if at least 25 private LSLs but less than 50 are being removed as part of the project.

NR 166.23(3)(c)5. 5. Ten points shall be awarded if at least 15 private LSLs but less than 25 are being removed as part of the project.

NR 166.23(3)(c)6. 6. Four points shall be awarded if less than 15 private LSLs are being removed as part of the project.

NR 166.23(3)(c)7. 7. Ten additional points shall be awarded if the project will remove all remaining private LSLs in the municipality.

NR 166.23(4) (4) Secondary contaminant violation or system compliance with ch. nr 811. The department may not award points for specific areas related to secondary contaminant violations or system compliance with ch. NR 811 if the project is already receiving points under sub. (1) for the same issue. The department shall assign points to a project for any of the following criteria that are applicable to the project:

NR 166.23(4)(a) (a) Twenty points shall be awarded if the project will reduce a secondary drinking water contaminant, as listed in s. NR 809.70, to a level below the aesthetic standard.

NR 166.23(4)(b) (b) Twenty points shall be awarded if the project addresses areas of inadequate distribution system pressure, as defined in s. NR 810.10, 810.11, or 811.70 (4).

NR 166.23(4)(c) (c) Twenty points shall be awarded if the project will address a documented storage deficiency, excluding fire demand, within an existing public water supply system.

NR 166.23(4)(d) (d) Twenty points shall be awarded if the project addresses a source or capacity deficiency where there is a demonstrated need within the existing public water supply system.

NR 166.23(4)(e) (e) Twenty points shall be awarded if the project will address system reliability under all operational situations, where there are significant concerns regarding reliability in the existing system, such as lack of redundancy of major components of the water system. Activities for which these points may be awarded include the addition of a second crossing of a river, railroad, or highway to a major system divide; installation of a second surface water intake; or construction of a second well.

NR 166.23(4)(f) (f) Twenty points shall be awarded if a major portion of the project will address significant deficiencies identified in a sanitary survey conducted by the department and the activities to correct deficiencies are related to the scored project activities.

NR 166.23(4)(g) (g) Four points shall be awarded if the project replaces lead joints in water mains.

NR 166.23(4)(h) (h) Four points shall be awarded if the project includes long–term zebra mussel control.

NR 166.23(4)(i) (i) Four points shall be awarded if the project includes installation of an auxiliary power source to a well, pump station, or water treatment plant.

NR 166.23(4)(j) (j) Four points shall be awarded if the project includes replacement of asbestos–cement pipe material.

NR 166.23(4)(k) (k) Four points shall be awarded if the project includes upgrading an existing supervisory control and data acquisition system.

NR 166.23(4)(L) (L) Four points shall be awarded if the project includes installation or replacement of fluoridation equipment.

NR 166.23(4)(m) (m) Four points shall be awarded if the project includes the upgrading of existing facilities for capturing, holding, or disposing of liquid or solid waste generated from the water system operation.

NR 166.23(4)(n) (n) Four points shall be awarded if the project includes the replacement of a water main or mains less than 6 inches in diameter.

NR 166.23(4)(o) (o) Four points shall be awarded if the project includes the looping of water mains or the elimination of dead-end water mains.

NR 166.23(4)(p) (p) Four points shall be awarded if the project includes treatment that reduces the potential for formation of disinfection by-products.

NR 166.23(4)(q) (q) Four points shall be awarded if, as a secondary benefit, the project will increase the fire protection of the community.

NR 166.23 Note Note: If the primary purpose of the project is to improve the fire protection of the system, the project is not eligible for funding.

NR 166.23(4)(r) (r) Four points shall be awarded if the project will include the installation of a water booster station or pressure reducing station to improve the quality of service to the customers by supplying water at a more acceptable level of pressure.

NR 166.23(4)(s) (s) Four points shall be awarded if the project includes the installation of an additional river, railroad, or highway crossing to a major system divide when two or more crossings already exist, and the additional crossing may result in greater system reliability.

NR 166.23(4)(t) (t) Four points shall be awarded if the project includes replacement of one or more pumps or pump motors that are no longer functional or have reached the end of their useful life.

NR 166.23(4)(u) (u) Four points shall be awarded if the project improves the intake structure for a surface water plant.

NR 166.23(4)(v) (v) Four points shall be awarded if the public water system currently has non-revenue water in excess of 30 percent of the total amount of water that enters the distribution system, or water losses exceeding 25 percent for public water systems with 1,000 customers or less, or water losses exceeding 15 percent for public water systems with more than 1,000 customers, and the project reduces the amount of non-revenue water within the system.

NR 166.23(4)(w) (w) Four points shall be awarded if the project includes removal of watermains that pass through sanitary sewer manholes, or correction of other types of undesirable cross connections as determined by the department.

NR 166.23(4)(x) (x) Four points shall be awarded if the applicant has a wellhead protection plan for all active source water wells in their water system constructed prior to May 1, 1992.

NR 166.23(5) (5) System capacity points. The department shall assign negative points to a project based on an applicant’s lack of required technical, financial, and managerial capacity for the existing public water system as follows:

NR 166.23(5)(a) (a) Negative 5 points shall be assigned if the applicant does not have a written emergency action plan for the public water system.

NR 166.23(5)(b) (b) Negative 5 points shall be assigned if the applicant has not implemented a private well abandonment ordinance for the public water system.

NR 166.23(5)(c) (c) Negative 5 points shall be assigned if the applicant’s public water system operator is not certified or the applicant has a certified operator but does not have provisions for a certified back–up operator for the public water system.

NR 166.23(5)(d) (d) Negative 5 points shall be assigned if the applicant does not have a cross connection control program for the public water system.

NR 166.23(6) (6) Consolidated systems capacity points. For consolidating existing systems that are eligible in accordance with s. NR 166.06 (1) (c), the department shall award 30 points for each existing water system that is consolidated which is having technical, financial, or managerial difficulties. The maximum number of points that shall be awarded under this subsection is 90 points.

NR 166.23(7) (7) Project priority score. The total points from subs. (1) to (6) shall be summed to determine the final project priority score.

NR 166.23(8) (8) Intended use plan. The department may include additional or modify existing scoring criteria through the annual SDWLP intended use plan.

NR 166.23 Note Note: The intended use plan is required of the department by the U.S. environmental protection agency as part of the application package for the federal capitalization grant for the SDWLP.

NR 166.23 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23; correction in (6) made under s. 35.17, Stats., Register October 2023 No. 814.

NR 166.24 NR 166.24 Procedure for determining and updating project priority scores. A municipality intending to apply for SDWLP financial assistance under this chapter shall submit to the department project priority evaluation and ranking form information in the department’s online format and by the date required by the department. The submittal shall include all required documentation to justify points requested in the form. The department may not assign a priority score greater than 0 to a project until the applicant has submitted complete priority evaluation and ranking form information to the department for evaluation. The procedure for determining and updating project priority scores shall be detailed in the SDWLP annual intended use plan under s. NR 166.05 (1).

NR 166.24 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.25 NR 166.25 Project ranking system.

NR 166.25(1) (1) The department shall maintain a project priority list for each state fiscal year, based on the priority evaluation and ranking information submitted by municipalities under s. NR 166.08 (1), and shall rank the projects for which the department has determined priority scores. The projects shall be ranked in the order of descending priority score, with the project with the highest priority score ranked first. The department shall develop an annual funding list consisting of all projects for which applications are submitted under s. NR 166.08 (3) to (5).

NR 166.25(2) (2) If 2 or more projects have the same priority score, the project serving the larger population shall have the higher priority.

NR 166.25(3) (3) Funds shall be allocated to projects in the order in which they appear on the funding list, except that projects may be given priority or removed from the list, upon written notice by the department, if any of the following situations occur: