281.35 Water resources conservation and management.
(1) Definitions. In this section:
(a) “Approval" means a permit issued under s. 30.18, 281.344 (5), or 281.346 (5) or an approval under s. 281.17 (1), 2001 stats., or s. 281.34 or 281.41.
(b) “Authorized base level of water loss" means any of the following:
1. The maximum 30-day average water loss authorized as a condition of an approval.
2. If subd. 1. does not apply, the highest average daily water loss over any 30-day period that is reported to the department under s. 281.17, 2001 stats., or s. 30.18 (6) (c), 281.34, 281.344 (5), 281.346 (5), or 281.41.
3. If there is no water loss from an existing withdrawal, zero gallons per day.
(bm) “Compact's effective date" means the effective date of the Great Lakes — St. Lawrence River Basin Water Resources Compact under s. 281.343.
(c) “Consumptive use" means a use of waters of the state, other than an interbasin diversion, that results in a failure to return any or all of the water to the basin from which it is withdrawn. “Consumptive uses" include, but are not limited to, evaporation and incorporation of water into a product or agricultural crop.
(cm) “Facility" means an operating plant or establishment providing electricity to the public or carrying on any manufacturing activity, trade, or business on one site, including similar plants or establishments under common ownership or control located on contiguous properties.
(d) “Great Lakes basin" means the watershed of the Great Lakes and the St. Lawrence River upstream from Trois-Rivieres, Quebec.
(e) “Great Lakes charter" means the document establishing the principles for the cooperative management of Great Lakes water resources, signed by the governors and premiers of the Great Lakes region on February 11, 1985.
(f) “Great Lakes region" means the geographic region composed of the states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio and Wisconsin, the commonwealth of Pennsylvania and the provinces of Ontario and Quebec, Canada.
(g) “Interbasin diversion" means a transfer of the waters of the state from either the Great Lakes basin or the upper Mississippi River basin to any other basin.
(h) “International joint commission" means the commission established by the boundary water agreement of 1909 between the United States and Canada.
(i) “Person" has the meaning given in s. 281.01 (9) and also includes special purpose districts established under s. 66.0827, other states and provinces and political subdivisions of other states and provinces.
(j) “Upper Mississippi River basin" means the watershed of the Mississippi River upstream from Cairo, Illinois.
(k) “Upper Mississippi River region" means the geographic region composed of the states of Illinois, Iowa, Minnesota, Missouri and Wisconsin.
(L) “Water loss" means a loss of water from the basin from which it is withdrawn as a result of interbasin diversion or consumptive use or both.
(m) “Withdrawal" means the removal or taking of water from the waters of the state.
(2) Aggregation of multiple withdrawals. In calculating the total amount of an existing or proposed water loss for purposes of determining the applicability of sub. (4), a person shall include all separate interbasin diversions and consumptive uses, or combinations thereof, which the person makes or proposes to make to supply a single facility or public water supply system.
(4) Water loss approval required.
(a) This subsection applies to all of the following:
1. A person to whom a permit has been issued under s. 30.18 or who is required to obtain a permit under that section before beginning or increasing a withdrawal.
2. A person who is operating a well under an approval issued under s. 281.17 (1), 2001 stats.
2m. A person who is operating a well under an approval issued under s. 281.34 or who is required to obtain an approval under that section before constructing a well.
3. An owner who is operating a system or plant under plans approved under s. 281.41 or who is required to submit plans and obtain an approval under that section before construction or extension of a proposed system or plant.
4. A person to whom a permit under s. 281.344 (5) or 281.346 (5) has been issued or who is required to obtain a permit under one of those provisions before beginning or increasing a withdrawal.
(b) Before any person specified in par. (a) may begin a new withdrawal or increase the amount of an existing withdrawal, the person shall apply to the department under s. 30.18, 281.34, 281.344 (5), 281.346 (5), or 281.41 for a new approval or a modification of its existing approval if either of the following conditions applies:
1. The person proposes to begin a new withdrawal that will result in a water loss averaging more than 2,000,000 gallons per day in any 30-day period.
2. The person proposes to increase an existing withdrawal that will result in a water loss averaging more than 2,000,000 gallons per day in any 30-day period above the person's authorized base level of water loss.
(5) Application; approval; denial.
(a) Application. An application under sub. (4) (b) shall contain a statement of and documentation for all of the following:
1. The current operating capacity of the withdrawal system, if the proposed increase requires the expansion of an existing system.
2. The total new or increased operating capacity of the withdrawal system.
3. The place and source of the proposed withdrawal.
4. The place of the proposed discharge or return flow.
5. The place and nature of the proposed water use.
6. The estimated average annual and monthly volumes and rates of withdrawal.
7. The estimated average annual and monthly volumes and rates of water loss.
8. The anticipated effects, if any, that the withdrawal will have on existing uses of water resources and related land uses both within and outside of the Great Lakes basin or the upper Mississippi River basin.
9. Any land acquisition, equipment, energy consumption or the relocation or resiting of any existing community, facility, right-of-way or structure that will be required.
10. The total anticipated costs of any proposed construction.
11. A list of all federal, state, provincial and local approvals, permits, licenses and other authorizations required for any proposed construction.
13. A statement as to whether the proposed withdrawal complies with all applicable plans for the use, management and protection of the waters of the state and related land resources, including plans developed under s. 283.83.
14. A description of other ways the applicant's need for water may be satisfied if the application is denied or modified.
15. A description of the conservation practices the applicant intends to follow.
16. Any other information required by the department by rule.
(b) Great Lakes basin; consultation required. If the department receives an application before the compact's effective date that, if approved, will result in a new water loss to the Great Lakes basin averaging more than 5,000,000 gallons per day in any 30-day period, or an increase in an existing withdrawal that will result in a water loss averaging 5,000,000 gallons per day in any 30-day period above the applicant's authorized base level of water loss, the department shall notify the office of the governor or premier and the agency responsible for management of water resources in each state and province of the Great Lakes region and, if required under the boundary water agreement of 1909, the international joint commission. The department shall also request each state and province that has cooperated in establishing the regional consultation procedure under sub. (11m) to comment on the application. In making its determination on an application, the department shall consider any comments that are received within the time limit established under par. (c).
(c) Department response. Within the time limit established by the department by rule, which shall be consistent with the time limit, if any, established by the governors and premiers of the Great Lakes states and provinces, the department shall do one of the following in writing:
1. Notify the applicant that the application is approved or denied, and if it is denied, the reason for the denial.
2. Notify the applicant of any modifications necessary to qualify the application for approval.
(d) Grounds for approval. Before approving an application, the department shall determine all of the following:
1. That no public water rights in navigable waters will be adversely affected.
2. That the proposed withdrawal does not conflict with any applicable plan for future uses of the waters of the state, including plans developed under ss. 281.12 (1) and 283.83.
3. That both the applicant's current water use, if any, and the applicant's proposed plans for withdrawal, transportation, development and use of water resources incorporate reasonable conservation practices.
4. That the proposed withdrawal and uses will not have a significant adverse impact on the environment and ecosystem of the Great Lakes basin or the upper Mississippi River basin.
5. That the proposed withdrawal and uses are consistent with the protection of public health, safety and welfare and will not be detrimental to the public interest.
6. That the proposed withdrawal will not have a significant detrimental effect on the quantity and quality of the waters of the state.
7. If the proposed withdrawal will result in an interbasin diversion, all of the following:
a. That each state or province to which the water will be diverted has developed and is implementing a plan to manage and conserve its own water quantity resources, and that further development of its water resources is impracticable or would have a substantial adverse economic, social or environmental impact.
b. That granting the application will not impair the ability of the Great Lakes basin or upper Mississippi River basin to meet its own water needs.
c. That the interbasin diversion alone, or in combination with other water losses, will not have a significant adverse impact on lake levels, water use, the environment or the ecosystem of the Great Lakes basin or upper Mississippi River basin.
d. That the proposed withdrawal is consistent with all applicable federal, regional and interstate water resources plans.
(e) Right to hearing. Any person who receives notice of a denial or modification requirement under par. (c) is entitled to a contested case hearing under ch. 227 if the person requests the hearing within 30 days after receiving the notice.
(f) The department shall charge each applicant for an approval under this subsection the fee established under sub. (10) (a) 5. All moneys collected under this paragraph shall be credited to the general fund.
(6) Approval.
(a) Issuance; contents. Subject to par. (am), if an application is approved under sub. (5), the department shall modify the applicant's existing approval or shall issue a new approval that specifies all of the following:
1. The location of the withdrawal.
2. The authorized base level of water loss from the withdrawal.
3. The dates on which or seasons during which water may be withdrawn.
4. The uses for which water may be withdrawn.
5. The amount and quality of return flow required and the place of discharge.
6. The requirements for reporting volumes and rates of withdrawal and any other date specified by the department.
7. Any other conditions, limitations and restrictions that the department determines are necessary to protect the environment and the public health, safety and welfare and to ensure the conservation and proper management of the waters of the state.
8. Any requirements for metering, surveillance and reporting that the department determines are necessary to ensure compliance with other conditions, limitations or restrictions of the approval.
9. If the department determines that a time limit is necessary, the date on which approval for the withdrawal expires.
(am) Water loss permit. If the department approves an application under sub. (5) for a withdrawal that is covered by a permit under s. 281.344 (5) or s. 281.346 (5) and another approval, the department shall modify the permit under s. 281.344 (5) or 281.346 (5), rather than the other approval, to specify the matters under par. (a).
(b) Review. The department shall review each approval prior to the expiration date specified under par. (a) 9., if any, or within 5 years from the date of issuance and at least every 5 years thereafter.
(c) Modification by department. The department may at any time propose modifications of the approval or additional conditions, limitations or restrictions determined to be necessary to ensure continued compliance with this section or with any other applicable statute or rule.
(d) Revocation. If the department determines that a person to whom an approval has been issued would be unable under any conditions, limitations or restrictions to comply with this section or another applicable statute or rule, it shall revoke the approval.
(e) Request for modification. A person to whom an approval has been issued or any person adversely affected by a condition, limitation or restriction of an approval may request that the department modify a condition, limitation or restriction of an approval.
(f) Notice; right to hearing. The department shall notify the person to whom the approval has been issued and any other person who has in writing requested notice of the receipt of a request to modify an approval or of the department's intent to modify or revoke an approval. The person to whom the approval is issued is entitled to a contested case hearing under ch. 227 before a revocation or modification takes effect. Any other person who may be adversely affected by a proposed modification is entitled to a contested case hearing under ch. 227.
(g) Fees. The department shall periodically collect from each person whose application under this subsection is approved the fee established under sub. (10) (a) 5. All moneys collected under this paragraph shall be credited to the general fund.
(7) Emergency order. The department may, without a prior hearing, order a person to whom an approval is issued to immediately stop a withdrawal if the department determines that there is a danger of imminent harm to the public health, safety or welfare, to the environment or to the water resources or related land resources of this state. The order shall specify the date on which the withdrawal must be stopped and the date, if any, on which it may be resumed. The order shall notify the person that the person may request a contested case hearing under ch. 227. The hearing shall be held as soon as practicable after receipt of a request for a hearing. An emergency order remains in effect pending the result of the hearing.
(9) Amendment of coastal management program.
(a) The Wisconsin coastal management council, established under executive order number 62, dated August 2, 1984, shall amend this state's coastal management program submitted to the U.S. secretary of commerce under 16 USC 1455, to incorporate the requirements of this section and, before the compact's effective date, s. 281.344 and the findings and purposes specified in 1985 Wisconsin Act 60, section 1, as they apply to the water resources of the Great Lakes basin, and shall formally submit the proposed amendments to the U.S. secretary of commerce.
(b) After approval of the amendments submitted to the U.S. secretary of commerce under par. (a), the Wisconsin coastal management council shall, when conducting federal consistency reviews under 16 USC 1456 (c), consider the requirements, findings and purposes specified under par. (a), if applicable.
(c) If the department issues an approval for a withdrawal to which this section applies, and the withdrawal is subject to a federal consistency review under 16 USC 1456 (c), the Wisconsin coastal management council shall certify that the withdrawal is consistent with this state's coastal management program.
(d) This subsection does not apply after the compact's effective date.
(10) Rule making; fees.
(a) The department shall promulgate rules establishing all of the following:
1. The procedures for reviewing and acting on applications under subs. (4) and (5).
2. Requirements for reporting volumes and rates of withdrawals.
3. The method for determining what portion of a withdrawal constitutes a consumptive use.
5. A graduated schedule for the fees required under subs. (5) (f) and (6) (g) and a schedule for collecting the fees under sub. (6) (g) periodically.
(b) The department may promulgate any other rule necessary to implement this section.
(11) Cooperation with other states and provinces. Before the compact's effective date, the department shall do all of the following:
(a) Cooperate with the other Great Lakes states and provinces to develop and maintain a common base of information on the use and management of the water resources of the Great Lakes basin and to establish systematic arrangements for the exchange of such information.
(b) Collect and maintain information regarding the locations, types and quantities of water use, including water losses, in a form that is comparable to the form used by the other Great Lakes states and provinces.
(c) Collect, maintain and exchange information on current and projected future water needs with the other Great Lakes states and provinces.
(d) Cooperate with the other Great Lakes states and provinces in developing a long-term plan for developing, conserving and managing the water resources of the Great Lakes basin.
(e) As provided in the Great Lakes charter, participate in the development of a regional consultation procedure for use in exchanging information on effects of proposed interbasin diversions and consumptive uses.
(11m) Upper Mississippi River basin consultation. The department shall participate in the development of an upper Mississippi River basin regional consultation procedure for use in exchanging information on the effects of proposed water losses from that basin.
(12) Miscellaneous provisions.
(a) The enumeration of any remedy under this section does not limit the right to any other remedy available in an action under the statutory or common law of this state or any other state or province, federal law or Canadian law.
(b) Proof of compliance with this section is not a defense in any action not founded on this section.
(c) This state reserves the right to seek, in any state, federal or provincial forum, an adjudication of the equitable apportionment of the water resources of the upper Mississippi River basin and, before the compact's effective date, of the Great Lakes basin, and the protection and determination of its rights and interests in those water resources, in any manner provided by law.
History: 1985 a. 60; 1987 a. 27, 186; 1987 a. 403 s. 256; 1989 a. 31; 1989 a. 56 s. 259; 1991 a. 32; 1991 a. 39; 1995 a. 227 s. 400; Stats., 1995 s. 281.35; 1999 a. 150 s. 672; 2003 a. 310; 2007 a. 96, 227; 2009 a. 180; 2017 a. 134.
NOTE: Section 1 of 1985 Act 60, which created this section is entitled “Legislative findings; purpose."
Through ss. 281.11 and 281.12, the legislature has delegated the state's public trust duties to the DNR in the context of its regulation of high capacity wells and their potential effect on navigable waters. For all proposed high capacity wells, the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application, which provides the DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170.
There is nothing in either s. 281.34 or 281.35 that limits the DNR's authority to consider the environmental impacts of a proposed high capacity well, nor is there any language in subchapter II of Wis. Stat. ch. 281 that requires the DNR to issue a permit for a well if the statutory requirements are met and no formal review or findings are required. There being no language expressly revoking or limiting the DNR's authority and general duty to protect and manage waters of the state, the DNR retains such authority and general duty to consider whether a proposed high capacity well may impact waters of the state. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170.
The DNR is required to consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state. Upon what evidence, and under what circumstances, that duty is triggered is a highly fact-specific matter that depends upon the information submitted by the well owner in the well permit application and any other information submitted to the DNR decision makers. The DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application such that it has an obligation to consider environmental concerns. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170.