2015 - 2016 LEGISLATURE
November 4, 2015 - Introduced by Representatives Krug and Kitchens,
cosponsored by Senators Cowles, Olsen and Petrowski. Referred to
Committee on Environment and Forestry.
1An Act to renumber and amend
281.34 (1) (a) (intro.), 2
281.34 (2), 281.34 (4) (a) (intro.), 281.34 (5) (a), 281.34 (5) (b), 281.34 (5) (c) and 3
281.34 (5) (d); and to create
281.34 (1) (em), 281.34 (1) (er), 281.34 (1m), 281.34 4
(2g), 281.34 (4) (am), 281.34 (4g), 281.34 (5) (f), 281.34 (7) (b), 281.34 (7d), 281.34 5
(7g) and 281.34 (7m) of the statutes;
relating to: approvals for high capacity
6wells, designation of sensitive resource areas, providing exemptions from
7emergency rule procedures, and granting rule-making authority.
Analysis by the Legislative Reference Bureau
This bill makes various changes to the laws regulating high capacity wells,
which are wells that, together with all other wells on the same property, have the
capacity to withdraw more than 100,000 gallons of water per day. Current law
requires a person to obtain approval from the Department of Natural Resources
(DNR) before constructing or operating a high capacity well. This bill specifies the
conditions that DNR may impose or modify in an approval for an existing high
capacity well and those that it may impose in an approval for a new high capacity
well. The conditions vary depending on certain circumstances such as whether the
well will be, or is, located in a sensitive resource area (SRA) designated by the
legislature by statute.
The bill establishes a procedure, more fully described below, under which an
area may be designated as an SRA by statute. Generally, under the bill, DNR is
required to evaluate and model the hydrology of (study) certain lakes, and the areas
surrounding those lakes, that are located in Waushara County (specified Waushara
County lake areas). Those lakes are Pleasant Lake, Plainfield Lake, Long Lake, and
Huron Lake. In addition, if DNR receives certain information showing that
cumulative groundwater withdrawals in an area of the state are collectively causing
or may be likely to collectively cause certain adverse impacts to streams and lakes,
DNR must request approval from the Joint Committee on Finance (JCF) to study
that area. If DNR conducts the study, DNR must issue a decision upon conclusion of
the study on whether to recommend that the area be designated as an SRA. DNR
must hold a public hearing on its decision. Upon conclusion of the hearing and all
administrative and judicial reviews, DNR must submit a report to the legislature on
whether it recommends that the area be designated as an SRA. If it recommends
such a designation, it must prepare and submit an additional report specifying any
measures that it recommends be conducted to prevent or remedy certain adverse
impacts to streams and lakes in the area.
Under the bill, an area may be designated as an SRA only by statute.
Current law requires DNR to conduct a specific type of environmental review
(special environmental review) of applications for approval of a high capacity well
that is located in an area within 1,200 feet of a trout stream or an exceptional or
outstanding resource water; a high capacity well with a high water loss, in which less
than 5 percent of the water withdrawn is returned after use to the basin from which
it is withdrawn; and a high capacity well that may have a significant environmental
impact on a qualifying spring.
This bill provides that DNR is required to conduct this special environmental
review under these circumstances only if the high capacity well is located in an area
designated by statute as an SRA. If it is not located in an SRA, DNR may, but is not
required to, conduct this special environmental review.
The bill also changes the distance threshold that applies to a special
environmental review for a high capacity well located near a trout stream or an
exceptional or outstanding resource water. Under the bill, that review is required
if the well is located within 1600 feet of such a stream or water.
This bill provides that DNR must approve an application for a high capacity
well approval within 65 business days from the date on which the application is filed,
if no special environmental review is conducted, and within 130 business days from
the date of application if a special environmental review is conducted. These
deadlines do not apply to an application for a high capacity well approval located in
Rescinding and modifying existing approvals
This bill changes the statutory language under which DNR may rescind or
modify a high capacity well approval. Under current law, DNR may rescind a high
capacity well approval if the well does not conform with standards or conditions
applicable to the approval for the well. This bill provides that DNR may not rescind
the approval unless the well or the use of the well does not conform with conditions
contained in the approval.
Current law also provides that DNR may modify a high capacity well approval
if the well does not conform with standards or conditions applicable to the approval.
This bill changes current law with respect to the modification of a high capacity well
approval by providing that DNR may not impose new or modified conditions on an
existing well unless a hearing examiner determines that these conditions are
necessary in order to abate an infringement of public rights in navigable waters. The
bill provides that if the high capacity well is located in an SRA, DNR may also impose
new or modified conditions if DNR is authorized by statute to impose those
conditions. The bill also provides that DNR may impose or modify a condition in an
existing high capacity well approval if the well owner agrees to the imposition of the
new or modified condition.
Conditions in new approvals
Under current law, if an application is one for which DNR conducts a special
environmental review, or if the application is for approval of a high capacity well that
DNR determines may impair a public water supply, DNR may not approve the
application unless it includes certain conditions in the approval. The conditions
must ensure that, depending on the location of the well, the public water supply is
protected, the well does not cause significant environmental impact, or the
environmental impact is balanced by the public benefit of the well.
Generally, this bill provides that DNR may impose conditions in a high capacity
well approval only to ensure that the well will not cause a significant adverse
environmental impact to a navigable water and to require the owner of the high
capacity well to remedy unreasonable harm to another person's well that is not a high
capacity well and that was in existence on the date of the application for approval of
the new high capacity well. The bill also provides that in reviewing an application
for a high capacity well approval, DNR may not impose conditions on any other
existing well, regardless of the location of the existing well.
This bill limits the conditions that DNR may impose in any approval issued for
a new high capacity well, other than one located in an SRA. Among the conditions
that DNR may impose are restrictions on the location, depth, and pumping capacity
of the well and conditions consistent with DNR standards for the construction of high
capacity wells. The bill provides that DNR may also require monitoring as a
condition in an approval for a new high capacity well if monitoring is necessary in
order for DNR to ensure that the groundwater withdrawal will not exceed the
allowable amount or rate under the laws regulating high capacity well approvals.
If DNR requires monitoring, the monitoring condition may only be imposed to allow
DNR to assess the water levels of the navigable waters in the area or groundwater
quality. If the approval is for a high capacity well located in an SRA, DNR may also
impose other conditions in the approval if DNR is authorized to impose those other
conditions by statute.
The bill also provides that if the approval application is one for which DNR
conducts a special environmental review, or is for a well that DNR determines may
impair a public water supply, DNR must also impose conditions for the purposes
required in those cases under current law.
Minimum water levels; sensitive resource areas
This bill requires DNR to promulgate rules establishing a method for
determining the minimum rate of flow of a stream and the minimum water level of
a lake (minimum level) necessary to prevent endangerment of certain fish and
aquatic life, impairment of navigation typically conducted on a stream or lake,
deterioration of water quality, infringement upon a riparian owner's reasonable
expectation of access to a lake, and impairment of any existing surface water
diversions from a stream or lake.
This bill also establishes a procedure under which DNR may determine
whether a geographic area of the state should be designated as an SRA. The bill
provides that if DNR has information or data from a professional geologist,
hydrologist, or hydrogeologist showing that cumulative groundwater withdrawals
from high capacity wells in an area of this state are collectively causing, or may be
likely to collectively cause a reduction of a stream's or lake's rate of flow or water level
below its minimum level, DNR must request approval from JCF to study the area.
The bill also requires DNR to study specified Waushara County lake areas without
requesting approval from JCF.
The bill provides that if JCF approves DNR's request, or allows DNR to proceed
without a JCF meeting to approve the request, DNR must conduct a study of the area
for which the request is made. If upon conclusion of the study of that area, or of a
specified Waushara County lake area, DNR determines that special measures
relating to groundwater withdrawal are necessary in that area to prevent or remedy
a reduction of a stream's or lake's rate of flow or water level below its minimum level,
DNR must issue a decision on whether it recommends designation of the area as an
SRA. If DNR issues a decision recommending designation of the area as an SRA,
DNR's decision must contain certain information including a description of the
geographical boundaries of the area and a description of the extent to which DNR has
determined that cumulative groundwater withdrawals in the area cause, or are
expected to cause, a reduction of a stream's or lake's rate of flow or water level below
its minimum level. The decision must also include any proposed measures that DNR
recommends be taken in the area to prevent or remedy a reduction of a stream's or
lake's rate of flow or water level below its minimum level. These measures may
include proposed regulations such as the use of conservation measures, the
imposition of limits on groundwater withdrawals, the use of a groundwater
withdrawal credit system, or other means of regulation.
The bill provides that after DNR issues its decision, it must hold a public
hearing to solicit comments on its decision. The bill provides that any person may
request that the hearing be treated as a contested case hearing and any person may
be made a party to the hearing if the person makes a timely request to be made a
party. After the exhaustion of the period of time established by law for all
administrative reviews and judicial reviews of a final decision in a contested case,
DNR must prepare, and submit to the legislature, a report on whether the area
should be designated as a sensitive resource area. If DNR recommends that the area
be designated as an SRA, DNR must prepare an additional report specifying any
measures that it recommends be conducted in the area to prevent or remedy a
reduction of a stream's or lake's rate of flow or water level below its minimum level.
Modification of previously issued approvals
This bill also allows certain owners of existing high capacity wells to obtain
modification of a previously issued approval. Under the bill, if DNR issued an
approval for a high capacity well on or after July 6, 2011, and before the effective date
of the bill, DNR must, upon the well owner's request, review the conditions in that
approval. If the conditions are not consistent with DNR's authority under this bill,
DNR must remove or revise those conditions consistent with that authority.
Activities exempt from approval
This bill also provides that no additional approval is needed for the owner of an
approved high capacity well to repair or maintain the well; to reconstruct the existing
high capacity well if the reconstructed well meets certain conditions; or to transfer
the approval at the same time as the owner transfers the land on which the approved
high capacity well is located. The bill also provides that under certain circumstances
an additional approval is not required to replace an existing high capacity well. The
new high capacity well must be constructed in accordance with DNR standards that
apply to the construction of new high capacity wells on the date that construction of
the replacement begins and must satisfy certain other requirements. Either the well
replacement must be undertaken to remedy or prevent contamination or the
replacement well must be drilled to substantially the same depth as the existing well
and be located within a certain radius of the existing well. No additional fee is
required for any of these actions, but the owner of the existing approved high capacity
well must notify DNR of any replacement, reconstruction, or transfer. The owner
may not take any of these actions if they would be inconsistent with the conditions
of the existing high capacity well approval. The conditions of the approval issued for
the existing high capacity well continue to apply after any of these actions are taken.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
281.34 (1) (a) (intro.) of the statutes is amended to read:
(a) (intro.) "Groundwater protection area" means an area within 31,200 1,600
feet of any of the following:
281.34 (1) (em) of the statutes is created to read:
(em) "Reconstruct" means to modify original construction including 2
deepening, lining, installing or replacing a screen, and underreaming.
281.34 (1) (er) of the statutes is created to read:
(er) "Sensitive resource area" means an area designated as a 5
sensitive resource area by statute.
281.34 (1m) of the statutes is created to read:
281.34 (1m) Limits on regulatory authority.
(a) Notwithstanding ss. 281.11 8
and 281.12 (1), the department's duty and authority, including public trust duties or 9
rule-making authority, with respect to issuance of high capacity well approvals is 10
limited to the duty and authority that is explicitly conferred upon the department 11
by this section.
(b) Paragraph (a) does not limit the department's authority to regulate water 13
withdrawals under ss. 281.346 and 281.35.
281.34 (2) of the statutes is amended to read:
281.34 (2) Approval required for high capacity wells. An Except as provided
16under sub. (2g), an
owner shall apply to the department for approval before 17
construction of a high capacity well begins. No
Except as provided under sub. (2g),
person may construct or withdraw water from a high capacity well without the 19
approval of the department under this section or under s. 281.17 (1), 2001 stats. An 20
owner applying for approval under this subsection shall pay a fee of $500. The
21department shall issue an approval to construct a high capacity well to any person
22who applies for an approval and pays the required fee if the high capacity well meets
23the requirements of this section. If the department denies an approval under this
24section, the department shall provide the applicant with a written explanation of the
25reason for the denial.
281.34 (2g) of the statutes is created to read: