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281.35(5)(d)7.b. 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.
281.35(5)(d)7.c. 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.
281.35(5)(d)7.d. d. That the proposed withdrawal is consistent with all applicable federal, regional and interstate water resources plans.
281.35(5)(e) (e) Right to hearing. Except as provided in s. 227.42 (4), 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.
281.35(5)(f) (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.
281.35(6) (6)Approval.
281.35(6)(a)(a) Issuance; contents. 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:
281.35(6)(a)1. 1. The location of the withdrawal.
281.35(6)(a)2. 2. The authorized base level of water loss from the withdrawal.
281.35(6)(a)3. 3. The dates on which or seasons during which water may be withdrawn.
281.35(6)(a)4. 4. The uses for which water may be withdrawn.
281.35(6)(a)5. 5. The amount and quality of return flow required and the place of discharge.
281.35(6)(a)6. 6. The requirements for reporting volumes and rates of withdrawal and any other date specified by the department.
281.35(6)(a)7. 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.
281.35(6)(a)8. 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.
281.35(6)(a)9. 9. If the department determines that a time limit is necessary, the date on which approval for the withdrawal expires.
281.35(6)(b) (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.
281.35(6)(c) (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.
281.35(6)(d) (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.
281.35(6)(e) (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.
281.35(6)(f) (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 before a modification takes effect.
281.35(6)(g) (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.
281.35(7) (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.
281.35(8) (8)Preparation of water quantity resources plan. The natural resources board shall, before August 1, 1988, adopt and submit to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2), a long-term state water quantity resources plan for the protection, conservation and management of the waters of the state. The plan shall include, but need not be limited to, the following:
281.35(8)(a) (a) The description of a system for allocating this state's water resources during a water shortage or other emergency.
281.35(8)(b) (b) Identification of the existing uses of the waters of the state.
281.35(8)(c) (c) An estimate of future trends in water use.
281.35(8)(d) (d) Recommendations for the use, management and protection of the waters of the state and related land resources that will affect persons subject to sub. (4).
281.35(9) (9)Amendment of coastal management program.
281.35(9)(a)(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 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.
281.35(9)(b) (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.
281.35(9)(c) (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.
281.35(10) (10)Rule making; fees.
281.35(10)(a)(a) The department shall promulgate rules establishing all of the following:
281.35(10)(a)1. 1. The procedures for reviewing and acting on applications under subs. (4) and (5).
281.35(10)(a)2. 2. Requirements for reporting volumes and rates of withdrawals.
281.35(10)(a)3. 3. The method for determining what portion of a withdrawal constitutes a consumptive use.
281.35(10)(a)4. 4. Procedures for implementing the plan adopted under sub. (8).
281.35(10)(a)5. 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.
281.35(10)(b) (b) The department may promulgate any other rule necessary to implement this section.
281.35(11) (11)Cooperation with other states and provinces. The department shall do all of the following:
281.35(11)(a) (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.
281.35(11)(b) (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.
281.35(11)(c) (c) Collect, maintain and exchange information on current and projected future water needs with the other Great Lakes states and provinces.
281.35(11)(d) (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.
281.35(11)(e) (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.
281.35(11)(f) (f) 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.
281.35(12) (12)Miscellaneous provisions.
281.35(12)(a)(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.
281.35(12)(b) (b) Proof of compliance with this section is not a defense in any action not founded on this section.
281.35(12)(c) (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 Great Lakes basin or upper Mississippi River basin, and the protection and determination of its rights and interests in those water resources, in any manner provided by law.
281.35 History 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.
281.35 Note NOTE: Section 1 of 1985 Act 60, which created this section is entitled "Legislative findings; purpose."
281.35 Cross-reference Cross Reference: See also ch. NR 142, Wis. adm. code.
281.36 281.36 Water quality certification for nonfederal wetlands.
281.36(1)(1)Definitions. In this section:
281.36(1)(a) (a) "Additional federal law or interpretation" means any of the following:
281.36(1)(a)1. 1. An amendment to 33 USC 1344 (f) that becomes effective after January 9, 2001.
281.36(1)(a)2. 2. Any other federal statutory provision that affects the exemptions under 33 USC 1344 (f) and that becomes effective after January 9, 2001.
281.36(1)(a)3. 3. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that becomes effective after January 9, 2001.
281.36(1)(a)4. 4. A decision issued by a federal district or federal appellate court that affects the application of a federal amendment or provision described in subds. 1. to 3., that applies to wetlands located in this state, and that is issued after January 9, 2001.
281.36(1)(am) (am) "Area of special natural resource interest" has the meaning given in s. 281.37 (1) (a).
281.36(1)(b) (b) "Existing federal law or interpretation" means any of the following:
281.36(1)(b)1. 1. 33 USC 1344 (f), as amended to January 8, 2001.
281.36(1)(b)2. 2. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to 33 USC 1344 (f) or that is used to interpret or implement 33 USC 1344 (f), that applies to wetlands located in this state, and that is in effect on January 8, 2001.
281.36(1)(b)3. 3. A decision issued by a federal district or federal appellate court that affects the application of a federal statute or provision described in subd. 1. or 2., that applies to wetlands located in this state, and that is issued on or before January 8, 2001.
281.36(1)(bg) (bg) "Federal transportation agency" means the federal aviation administration, the federal highway administration, or the federal railroad administration.
281.36(1)(c) (c) "Nonfederal wetland" means a wetland that is identified as such under sub. (1m).
281.36(1)(cm) (cm) "Political subdivision" means a city, village, town, or county.
281.36(1)(cr) (cr) "State transportation agency" means the department of transportation or the office of the commissioner of railroads.
281.36(1)(d) (d) "Water quality standards" means water quality standards set under rules promulgated by the department under s. 281.15.
281.36(1m) (1m)Determination of nonfederal wetlands.
281.36(1m)(a)(a) A wetland is identified as a nonfederal wetland if either of the following applies:
281.36(1m)(a)1. 1. Any discharges of dredged or fill material into the wetland are determined not to be subject to regulation under 33 USC 1344 due to the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
281.36(1m)(a)2. 2. The wetland is determined to be a nonnavigable, intrastate, and isolated wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
281.36(1m)(b) (b) For the purpose of identifying wetlands under par. (a):
281.36(1m)(b)1. 1. If the U.S. army corps of engineers issues a determination as to whether a wetland is a nonfederal wetland, the department shall adopt that determination.
281.36(1m)(b)2. 2. If the U.S. army corps of engineers does not issue a determination as to whether a wetland is a nonfederal wetland, the department shall determine whether the wetland is a nonfederal wetland.
281.36(2) (2)Certification requirement.
281.36(2)(a)(a) No person may discharge dredged or fill material into a nonfederal wetland unless the discharge is authorized by a water quality certification issued by the department under this section. No person may violate any condition imposed by the department in a water quality certification under this section. The department may not issue a water quality certification under this section unless it determines that the discharge will comply with all applicable water quality standards.
281.36(2)(b)1.1. The department shall approve or deny a complete application for a water quality certification under this section within 120 days after the date the department determines that a complete application for the certification has been submitted unless the applicant and the department agree to extend the time period. The department may not determine an application to be complete until the requirements under s. 1.11 have been met and until all of the items of information for the water quality certification and for any associated permits or other approvals have been submitted to the department. If the department fails to approve or deny the complete application within the applicable time period, the applicant may bring an action for mandamus to compel the department to approve or deny the application. If the court grants the mandamus, the department shall approve or deny the application within 30 days after the mandamus is granted and the court shall award the applicant reasonable attorney fees and court costs incurred in bringing the action.
281.36(2)(b)2. 2. For purposes of subd. 1., the department shall initially determine whether a complete application has been submitted and, no later than 30 days after the application is submitted, notify the applicant in writing about the initial determination of completeness. If the department determines that the application is incomplete, the notice shall state the reason for the determination and the specific items of information necessary to make the application complete. An applicant may supplement and resubmit an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may resubmit an application that the department has determined to be incomplete under this subdivision. The department may not demand items of information that are not specified in the notice as a condition for determining whether the application is complete unless both the department and the applicant agree or unless the applicant makes material additions or alterations to the project for which the the application has been submitted.
281.36(3) (3)Delineation procedures. For purposes of delineating the boundary of a nonfederal wetland, the department and the person who is applying for or who holds a water quality certification under this section shall use the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers. The edition of the manual that shall be used shall be the 1987 edition of the manual and any document that the U.S. army corps of engineers issues interpreting that manual, unless the U.S. army corps of engineers publishes an edition of the manual after January 9, 2001, and the department by rule designates that edition as the one to be used under this subsection. If the U.S. army corps of engineers issues a guidance document interpreting the edition of the wetlands delineation manual that the department is required to use under this subsection and if that guidance document is issued after May 8, 2001, the department shall notify the appropriate standing committee of each house of the legislature, as determined by the speaker of the assembly and the president of the senate, of the issuance of the guidance document and whether the department intends to promulgate a rule incorporating the provisions of the guidance document.
281.36(4) (4)Exemptions. Except as provided in sub. (5), the certification requirement under sub. (2) does not apply to any discharge that is the result of any of the following activities:
281.36(4)(a) (a) Normal farming, silviculture, or ranching activities.
281.36(4)(b) (b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.
281.36(4)(c) (c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.
281.36(4)(d) (d) Maintenance of drainage ditches.
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This is an archival version of the Wis. Stats. database for 2001. See Are the Statutes on this Website Official?