Carrying capacity controls for recreation water uses. Kusler, 1973 WLR 1.
General department powers and duties. 281.12(1)(1)
The department shall have general supervision and control over the waters of the state. It shall carry out the planning, management and regulatory programs necessary for implementing the policy and purpose of this chapter. The department also shall formulate plans and programs for the prevention and abatement of water pollution and for the maintenance and improvement of water quality.
The department, upon request, shall consult with and advise owners who have installed or are about to install systems or plants, as to the most appropriate water source and the best method of providing for its purity, or as to the best method of disposing of wastewater, including operations and maintenance, taking into consideration the future needs of the community for protection of its water supply. The department is not required to prepare plans.
The department may enter into agreements with the responsible authorities of other states, subject to approval by the governor, relative to methods, means and measures to be employed to control pollution of any interstate streams and other waters and to carry out such agreement by appropriate general and special orders. This power shall not be deemed to extend to the modification of any agreement with any other state concluded by direct legislative act, but, unless otherwise expressly provided, the department shall be the agency for the enforcement of any such legislative agreement.
History: 1995 a. 227
; 1995 a. 378
The DNR's general supervision and control over the state's waters is not so sweeping as to authorize the DNR to ban all activities that might adversely affect water quality or to establish limitations for any one specific industry. Rusk County Citizen Action Group, Inc. v. DNR, 203 W (2d) 1, 552 NW (2d) 110 (Ct. App. 1996).
Surveys and research. 281.13(1)(a)(a)
The department is authorized to act with the U.S. geological survey in determining the sanitary and other conditions and nature of the natural water sources in this state, for the following purposes:
To determine the nature and condition of the unpolluted natural water sources.
To determine to what extent the natural water sources are being contaminated by sewage from cities, villages and towns.
To determine to what extent the natural water sources are being polluted by other wastes.
The department is hereby empowered and instructed to make the necessary rules and regulations, in conjunction with the U.S. geological department, to carry this subsection into effect.
The department may conduct scientific experiments, investigations, waste treatment demonstrations and research on any matter under its jurisdiction. It may establish pilot plants, prototypes and facilities in connection therewith and lease or purchase land or equipment.
History: 1995 a. 227
; 1995 a. 378
; 1997 a. 35
Water quality standards. 281.15(1)
The department shall promulgate rules setting standards of water quality to be applicable to the waters of the state, recognizing that different standards may be required for different waters or portions thereof. Water quality standards shall consist of the designated uses of the waters or portions thereof and the water quality criteria for those waters based upon the designated use. Water quality standards shall protect the public interest, which include the protection of the public health and welfare and the present and prospective future use of such waters for public and private water systems, propagation of fish and aquatic life and wildlife, domestic and recreational purposes and agricultural, commercial, industrial and other legitimate uses. In all cases where the potential uses of water are in conflict, water quality standards shall be interpreted to protect the general public interest.
In adopting or revising any water quality criteria for the waters of the state or any designated portion thereof, the department shall do all of the following:
At least annually publish and provide public notice of water quality criteria to be adopted, revised or reviewed in the following year.
Consider information reasonably available to the department on the likely social, economic, energy usage and environmental costs associated with attaining the criteria and provide a description of the economic and social considerations used in the establishment of the criteria.
Establish criteria which are no more stringent than reasonably necessary to assure attainment of the designated use for the water bodies in question.
Employ reasonable statistical techniques, where appropriate, in interpreting the relevant water quality data.
Develop a technical support document which identifies the scientific data utilized, the margin of safety applied and any facts and interpretations of those data applied in deriving the water quality criteria, including the persistence, degradability and nature and effects of each substance on the designated uses, and which provides a summary of the information considered under this section.
(3) Subsection (2)
does not apply to rules promulgated under this section by the department for any substance before November 10, 1987.
By April 1, 1989, the department shall review, in accordance with sub. (2)
, and as necessary revise all water quality criteria, except those for dissolved oxygen, temperature, pH and ammonia, adopted under this section before November 10, 1987.
The department shall comply with this section with respect to all water quality criteria adopted or revised after November 10, 1987.
History: 1995 a. 227
; 1995 a. 378
Water quality protection; nonpoint sources. 281.16(1)(a)
"Agricultural facility" means a structure associated with an agricultural practice.
"Agricultural practice" means beekeeping; commercial feedlots; dairying; egg production; floriculture; fish or fur farming; grazing; livestock raising; orchards; poultry raising; raising of grain, grass, mint and seed crops; raising of fruits, nuts and berries; sod farming; placing land in federal programs in return for payments in kind; owning land, at least 35 acres of which is enrolled in the conservation reserve program under 16 USC 3831
; and vegetable raising.
"Livestock operation" means a feedlot or other facility or a pasture where animals are fed, confined, maintained or stabled.
"Nonpoint source" means a facility or practice that causes, or has the potential to cause, nonpoint source water pollution.
"Nonpoint source water pollution" means pollution of waters of the state that does not result from a point source, as defined in s. 283.01 (12)
"Water quality management area" means any of the following:
The area within 1,000 feet from the ordinary high-water mark of navigable waters that consist of a lake, pond or flowage, except that, for a navigable water that is a glacial pothole lake, "water quality management area" means the area within 1,000 feet from the high-water mark of the lake.
The area within 300 feet from the ordinary high-water mark of navigable waters that consist of a river or stream.
A site that is susceptible to groundwater contamination or that has the potential to be a direct conduit for contamination to reach groundwater.
(2) Nonpoint sources that are not agricultural. 281.16(2)(a)(a)
The department shall, by rule, prescribe performance standards for nonpoint sources that are not agricultural facilities or agricultural practices. The performance standards shall be designed to achieve water quality standards by limiting nonpoint source water pollution.
The department shall, by rule, specify a process for the development and dissemination of technical standards to implement the performance standards under par. (a)
(3) Nonpoint sources that are agricultural. 281.16(3)(a)(a)
The department of natural resources, in consultation with the department of agriculture, trade and consumer protection, shall promulgate rules prescribing performance standards and prohibitions for agricultural facilities and agricultural practices that are nonpoint sources. The performance standards and prohibitions shall be designed to achieve water quality standards by limiting nonpoint source water pollution. At a minimum, the prohibitions shall include all of the following:
That a livestock operation may have no overflow of manure storage structures.
That a livestock operation may have no unconfined manure pile in a water quality management area.
That a livestock operation may have no direct runoff from a feedlot or stored manure into the waters of the state.
That a livestock operation may not allow unlimited access by livestock to waters of the state in a location where high concentrations of animals prevent the maintenance of adequate sod cover.
The department of agriculture, trade and consumer protection, in consultation with the department of natural resources, shall promulgate rules prescribing conservation practices to implement the performance standards and prohibitions under par. (a)
and specifying a process for the development and dissemination of technical standards to implement the performance standards and prohibitions under par. (a)
Using the process specified under par. (b)
, the department of agriculture, trade and consumer protection shall develop and disseminate technical standards to implement the performance standards and prohibitions under par. (a)
. The department of agriculture, trade and consumer protection shall disseminate alternative technical standards for situations in which more than one method exists to implement the performance standards and prohibitions.
The conservation practices and technical standards under pars. (b)
shall at a minimum cover animal waste management, nutrients applied to the soil and cropland sediment delivery.
An owner or operator of an agricultural facility or practice that is in existence before October 14, 1997, may not be required by this state or a municipality to comply with the performance standards, prohibitions, conservation practices or technical standards under this subsection unless cost-sharing is available, under sub. (5)
or s. 92.14
or from any other source, to the owner or operator. For the purposes of this paragraph, sub. (4)
and ss. 92.07 (2)
, 92.105 (1)
, 92.15 (4)
and 823.08 (3) (c) 2.
, the department of natural resources shall promulgate rules that specify criteria for determining whether cost-sharing is available under sub. (5)
or s. 281.65
and the department of agriculture, trade and consumer protection shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 92.14
or from any other source. The rules may not allow a determination that cost-sharing is available to meet local regulations under s. 92.07 (2)
, 92.105 (1)
that are consistent with or that exceed the performance standards, prohibitions, conservation practices or technical standards under this subsection unless the cost-sharing is at least 70% of the cost of compliance or is from 70% to 90% of the cost of compliance in cases of economic hardship, as defined in the rules.
(4) Application to animal feeding operations.
If the department issues a notice of discharge under ch. 283
for an animal feeding operation, the performance standards, prohibitions, conservation practices and technical standards under sub. (3)
apply to the animal feeding operation, except that if the animal feeding operation is in existence before October 14, 1997, the performance standards, prohibitions, conservation practices and technical standards only apply if the department determines that cost-sharing is available to the owner or operator of the animal feeding operation under sub. (5)
, s. 92.14
or from any other source.
(5) Cost-sharing for compliance.
From the appropriation under s. 20.866 (2) (te)
, the department shall provide cost-sharing grants to persons to whom cost-sharing is not available from other sources for projects to assist agricultural facilities to comply with the performance standards, prohibitions, conservation practices and technical standards under sub. (3)
. The department shall promulgate rules for the administration of the program under this subsection.
History: 1997 a. 27
Water quality and quantity; specific regulations. 281.17(1)(1)
No wells shall be constructed, installed or operated to withdraw water from underground sources for any purpose where the capacity and rate of withdrawal of all wells on one property is in excess of 100,000 gallons a day without first obtaining the approval of the department. If s. 281.35
applies to the proposed construction, the application shall comply with s. 281.35 (5) (a)
. If the department finds that the proposed withdrawal will adversely affect or reduce the availability of water to any public utility in furnishing water to or for the public or does not meet the grounds for approval specified under s. 281.35 (5) (d)
, if applicable, it shall either withhold its approval or grant a limited approval under which it imposes such conditions as to location, depth, pumping capacity, rate of flow and ultimate use so that the water supply of any public utility engaged in furnishing water to or for the public will not be impaired and the withdrawal will conform to the requirements of s. 281.35
, if applicable. The department shall require each person issued an approval under this subsection to report that person's volume and rate of withdrawal, as defined under s. 281.35 (1) (m)
, and that person's volume and rate of water loss, as defined under s. 281.35 (1) (L)
, if any, in the form and at the times specified by the department. The department may issue general or special orders it considers necessary to ensure prompt and effective administration of this subsection.
The department shall supervise chemical treatment of waters for the suppression of algae, aquatic weeds, swimmers' itch and other nuisance-producing plants and organisms. It may purchase equipment and may make a charge for the use of the same and for materials furnished, together with a per diem charge for any services performed in such work. The charge shall be sufficient to reimburse the department for the use of the equipment, the actual cost of materials furnished, and the actual cost of the services rendered.
The department shall promulgate rules establishing an examining program for the certification of operators of water systems, wastewater treatment plants and septage servicing vehicles operated under a license issued under s. 281.48 (3)
, setting such standards as the department finds necessary to accomplish the purposes of this chapter and chs. 285
, including requirements for continuing education. The department may charge applicants a fee for certification. All moneys collected under this subsection for the certification of operators of water systems, wastewater treatment plants and septage servicing vehicles shall be credited to the appropriation under s. 20.370 (4) (bL)
. No person may operate a water systems, wastewater treatment plant or septage servicing vehicle without a valid certificate issued under this subsection. The department may suspend or revoke a certificate issued under this subsection for a violation of any statute or rule relating to the operation of a water system or wastewater treatment plant or to septage servicing, for failure to fulfill the continuing education requirements or as provided under s. 145.245 (3)
. The owner of any wastewater treatment plant shall be, or shall employ, an operator certified under this subsection who shall be responsible for plant operations, unless the department by rule provides otherwise. In this subsection, "wastewater treatment plant" means a system or plant used to treat industrial wastewater, domestic wastewater or any combination of industrial wastewater and domestic wastewater.
The department may prohibit the installation or use of septic tanks in any area of the state where the department finds that the use of septic tanks would impair water quality. The department shall prescribe alternate methods for waste treatment and disposal in such prohibited areas.
On and after December 31, 1965, the sale and use of nondegradable detergents containing alkyl benzene sulfonate is prohibited in this state.
Discharge of mercury compounds and metallic mercury into the waters of this state by any person shall be limited to fifteen-hundredths of a pound of mercury per day averaged over a 30-day period, and not more than one-half pound in any one day. The department may establish lower maximum discharge limits by rule.
The department may establish, administer and maintain a safe drinking water program no less stringent than the requirements of the safe drinking water act, 42 USC 300f
The department may require owners of water systems to demonstrate the technical, managerial and financial capacity to comply with national primary drinking water regulations under 42 USC 300g-1
and may assist owners of water systems to develop that capacity.
Madison's power to forbid chemical treatment of Madison lakes was withdrawn by s. 144.025 (2) (i) [now 281.17 (2)]. Wis. Environmental Decade, Inc. v. DNR, 85 W (2d) 518, 271 NW (2d) 69 (1978).
A municipality has no jurisdiction over chemical treatment of waters to suppress aquatic nuisances. The department is granted statewide supervision over aquatic nuisance control under s. 144.025 (2) (i) [now 281.17 (2)]. Applications for permits to chemically treat aquatic nuisances under s. 144.025 (2) (i) may be denied even though statutory and regulatory requirements have been met if such chemical treatment would be counter-productive in achieving the goals set out in s. 144.025 (1). 63 Atty. Gen. 260.
The department may issue general orders, and adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods and means for preventing and abating pollution of the waters of the state. Such general orders and rules shall be issued only after an opportunity to be heard thereon has been afforded to interested parties.
The department may issue special orders directing particular owners to remedy violations of the safe drinking water program under s. 281.17 (8)
or to secure such operating results toward the control of pollution of the waters of the state as the department prescribes, within a specified time. Pending efforts to comply with any order, the department may permit continuance of operations on such conditions as it prescribes. If any owner cannot comply with an order within the time specified, the owner may, before the date set in the order, petition the department to modify the order. The department may modify the order, specifying in writing the reasons therefor. If any order is not complied with within the time period specified, the department shall immediately notify the attorney general of this fact. After receiving the notice, the attorney general shall commence an action under s. 299.95
NOTE: Par. (a) is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
The department may issue temporary emergency orders without prior hearing when the department determines that the protection of the public health necessitates such immediate action. Such emergency orders shall take effect at such time as the department determines. As soon as is practicable, the department shall hold a public hearing after which it may modify or rescind the temporary emergency order or issue a special order under par. (a)
The department shall make investigations and inspections to insure compliance with any general or special order or rule which it issues. In the exercise of this power the department may require the submission and approval of plans for the installation of systems and devices for handling, treating or disposing of any wastes.
The department may, under s. 254.59
, order or cause the abatement of any nuisance affecting the waters of the state.
If the department finds that a system or plant tends to create a nuisance or menace to health or comfort, it shall order the owner or the person in charge to secure such operating results as the department prescribes, within a specified time. If the order is not complied with, the department may order designated changes in operation, and if necessary, alterations or extension to the system or plant, or a new system or plant. If the department finds that the absence of a municipal system or plant tends to create a nuisance or menace to health or comfort, it may order the city, village, town or town sanitary district embracing the area where such conditions exist to prepare and file complete plans of a corrective system as provided by s. 281.41
, and to construct such system within a specified time.
Orders issued by the department shall be signed by the person designated by the board.
In cases of noncompliance with any order issued under sub. (2)
or s. 281.20 (1)
, the department may take the action directed by the order, and collect the costs thereof from the owner to whom the order was directed. The department shall have all the necessary powers needed to carry out this subsection including powers granted municipalities under ss. 66.076
. It shall also be eligible for financial assistance under ss. 281.55
Any owner or other person in interest may secure a review of the necessity for and reasonableness of any order of the department under this section or s. 281.20
in the following manner:
They shall first file with the department a verified petition setting forth specifically the modification or change desired in such order. Such petition must be filed within 60 days of the issuance of the orders sought to be reviewed. Upon receipt of such a petition the department shall order a public hearing thereon and make such further investigations as it shall deem advisable. Pending such review and hearing, the department may suspend such orders under terms and conditions to be fixed by the department on application of any such petitioner. The department shall affirm, repeal or change the order in question within 60 days after the close of the hearing on the petition.
The determination of the department shall be subject to review as provided in ch. 227
History: 1995 a. 227
; 1997 a. 27
; s. 13.93 (2) (c).
Department is authorized, not required, to set standards for sewer extension approvals and may process sewer extension applications on a case by case basis under s. 144.025 (2) (c) [now s. 281.19 (1)]. Wis. Environmental Decade v. DNR, 82 W (2d) 97, 260 NW (2d) 674.
The department of natural resources has the authority to order a municipality to construct a public water supply, upon a finding that the absence of a public water supply constitutes a nuisance or menace to health or comfort, even though the electors of the municipality voted against construction in a referendum. 60 Atty. Gen. 523.
Orders; nonpoint source pollution. 281.20(1)
Under the procedure specified in sub. (3)
, the department may do any of the following: