Natural Resources Board Approves Update to Well Code

June 11, 2019

There has been much attention recently regarding water quality.  For example, Wisconsin Governor Tony Evers has declared 2019 “the year of clean drinking water.”  In addition, concerns regarding lead in drinking have escalated, particularly after high levels of lead were discovered in drinking water in Flint, Michigan. More recently, there has been increasing focus on perfluoroalkyl and polyfluoroalkyl substances (PFAS), which are a large group of chemicals that have been used for many different purposes for decades.  In fact, the City of Madison recently reported it was shutting down one of its wells when the well tested positive for PFAS.

One significant tool in attempting to ensure the citizens of Wisconsin have a clean supply of water, which has not received broad attention, is Wisconsin’s Well Construction and Pump Installation Administrative Code (Well Code).  The fact that Wisconsin has over 800,000 private wells puts this into perspective.  About 70% of Wisconsin residents get their drinking water from groundwater, and about a quarter of Wisconsin’s population obtain their drinking water from private wells, rather than public water supply wells.

The Well Code is contained in chapter 812 of the Wisconsin Administrative Code, and is administered by the Wisconsin Department of Natural Resources (the DNR).  At its May 22nd meeting, the Natural Resources Board, after a significant amount of discussion, approved a major rewrite of the Well Code.  This code contains requirements regarding the location, construction and reconstruction, maintenance and inspections of wells and water systems.  It also contains provisions for filling and sealing wells and drill holes, and for installing and maintaining pumping and treatment equipment.

The DNR indicated that the purpose of this code update was to “correct errors and unclear language, streamline processes and requirements, update construction standards, and be consistent with federal and state law while maintaining the protection of groundwater and public health.”  Here are some highlights of what is contained in this rule proposal:

  • Locational Standards: NR 812 sets forth separation distances that wells (newly constructed or reconstructed), reservoirs, and developed springs must be from certain potential sources of contamination.  The DNR simplified these provisions and modified some of the separation distances that were in NR 812.  For example, for fertilizer or pesticide surface storage tanks containing 1500 gallons or less, the setback from potable wells went from zero to 100 feet, making it consistent with the setback requirements for tanks over 1500 gallons.  For one and two family residential locations, the setback from a stormwater infiltration basin or system went from 100 feet to eight feet.
  • Construction Approvals: NR 812 specifies that DNR approval must be obtained before engaging in construction activities or other listed activities.  For example, approval is required before construction, reconstruction or operation of a high capacity well, or for the development of a spring for use as a potable water supply.  This proposed rule will impose a two-year expiration date for all construction approvals.  In addition, notice must be provided to the DNR at least one working day before starting construction.
  • Product Approvals: Products and components used in performing work under the Well Code have typically needed approval from the DNR.  This includes, for example, grout and sealing materials, drilling aids and additives, and well head components.  This rule proposal consolidates the approval requirements into one section of the Well Code.  In addition, certain products, such as drinking water treatment chemicals, which have certain national certifications, will no longer need DNR approval.  For a list of approved products and components, go to https://dnr.wi.gov/topic/Wells/drillerPumpInstall.html.
  • Construction/Reconstruction: A number of changes are included in the rule package to update the drilling and well construction standards to be performance-based, and to reflect current industry standards.  Some of these changes are clearly intended to protect water quality.  For example, the time a well driller/constructor has to return to a well after the driller/constructor knows that the well tested positive for coliform bacteria decreased from 30 days to 10 days.  In addition, DNR increased the casing depth requirements for wells completed in limestone and dolomite from 40 feet to 60 feet when the depth to limestone/dolomite is less than 20 feet, in an effort to minimize the chances for pollutants from the surface impacting these wells.
  • Filling and Sealing: This proposal would require the filling and sealing of seasonal and high capacity irrigation wells if they were not used for more than three consecutive years.
  • Treatment: The requirements for installing a bacteria treatment system are modified so that DNR approval is not needed if the well is inspected by a licensed well driller or pump installer, and the well is in compliance with the Well Code requirements.
  • Sampling: Water sampling, analysis and reporting requirements were consolidated into one section.

While this rule-making effort has been ongoing since 2016, it generated a fair amount of discussion when brought before the Natural Resources Board.  The Wisconsin Water Well Association testified against the rule, raising a number concerns regarding specific provisions in the proposal.  Moreover, the rule proposal generated significant discussion among Natural Resource Board members.  Some members expressed concerns over parts of the rule package, but there was also a desire not to delay the entire 146-page rule package.  Ultimately, the Natural Resources Board adopted the rule by a 6 to 1 vote.

The Board, however, directed the DNR to begin a new rulemaking effort to address some of the concerns raised.  While it was somewhat unclear what all would be included in the new rulemaking effort, two items of particular focus included:

  • The expanded casing depth requirement discussed above; and
  • The existing prohibition on the use of PVC casing in consolidated formations.

While the Natural Resources Board has adopted this rule, it still has a way to go before it will go into effect.  The rule will next go to the Governor for approval, and then to the Wisconsin Legislature for its review.  The DNR estimates this rule will become effective in 2020.

To view this proposed rule and related information, go to: https://dnr.wi.gov/About/NRB/2019/May/2019-05-2A1%20adoption%20DG-16-16%20well%20construction%20and%20pump%20installation.pdf

On a final note, private wells are not subject to the extensive regulatory oversight directed to public water systems.  Private well owners are primarily responsible for their wells.  Consequently, the DNR recommends testing your well annually.  For information about testing your well, and other information regarding wells, go to: https://dnr.wi.gov/topic/Wells/homeowners.html

For more information about "Natural Resources Board Approves Update to Well Code," contact Patrick Stevens at pstevens@axley.com or 262.409.2296.