SB291: Bill Text

SB291,5 Section 5. 281.34 (2) of the statutes is amended to read:

SB291,6,25 281.34 (2) Approval required for high capacity wells. An Except as provided under sub. (2g), an owner shall apply to the department for approval before construction of a high capacity well begins. No Except as provided under sub. (2g), no person may construct or withdraw water from a high capacity well without the approval of the department under this section or under s. 281.17 (1), 2001 stats. An owner applying for approval under this subsection shall pay a fee of $500. The department shall issue an approval to construct a high capacity well to any person who applies for an approval and pays the required fee if the high capacity well meets the requirements of this section. If the department denies an approval under this section, the department shall provide the applicant with a written explanation of the reason for the denial.

SB291,6 Section 6. 281.34 (2g) of the statutes is created to read:

SB291,7,6 281.34 (2g) Repair, replacement, reconstruction, and transfer of ownership of an approved high capacity well. (a) Except as provided in par. (e), if an existing high capacity well has been approved under this section or under s. 281.17 (1), 2001 stats., the owner of that well may take any of the following actions without obtaining an additional approval under this section:

SB291,7,7 1. Repair and maintain the existing high capacity well.

SB291,7,13 2. Construct a new high capacity well to replace the existing high capacity well if the new high capacity well will be constructed in accordance with department standards that apply to the construction of new high capacity wells on the date that construction of the replacement high capacity well begins, if the existing high capacity well is filled and sealed as provided in rules promulgated by the department in a manner that will protect public safety, and if any of the following applies:

SB291,7,16 a. The purpose of replacement is to remedy or prevent contamination. The owner of the well shall submit documentation of the contamination to the department in the manner and form required by the department.

SB291,7,22 b. The replacement high capacity well will be drilled to substantially the same depth as the existing high capacity well and will be located within a 75-foot radius of the existing high capacity well or, if located 75 feet or more from the existing high capacity well, will be located farther from the nearest navigable stream or navigable lake than the existing high capacity well and will not be located within 1,000 feet of any other navigable stream or navigable lake.

SB291,7,25 3. Reconstruct the existing high capacity well, if the reconstructed high capacity well is constructed to substantially the same depth and specifications as the existing high capacity well.

SB291,8,2 4. Transfer the approval, concurrent with transferring the land on which the approved high capacity well is located, to the person to whom the land is transferred.

SB291,8,3 (b) The department may not impose a fee for any action under par. (a).

SB291,8,8 (c) No later than 90 days after taking any action under par. (a) 2., 3., or 4. the owner of the high capacity well shall notify the department of the action taken on a form prescribed by the department. For any action taken under par. (a) 2. the owner shall, on the same form, notify the department of the location of the replacement high capacity well and the method by which the existing well was filled and sealed.

SB291,8,11 (d) Except as provided in sub. (7), the conditions of the existing high capacity well approval continue to apply after an owner takes any of the actions under par. (a).

SB291,8,13 (e) An owner of a well may not take an action under par. (a) if the action would be inconsistent with the conditions of the existing high capacity well approval.

SB291,7 Section 7. 281.34 (4) (a) (intro.) of the statutes is amended to read:

SB291,8,17 281.34 (4) (a) (intro.) The department shall review an application for approval of any of the following that are located in a sensitive resource area using the environmental review process in its rules promulgated under s. 1.11:

SB291,8 Section 8. 281.34 (4) (am) of the statutes is created to read:

SB291,8,22 281.34 (4) (am) The department may review an application for approval of a high capacity well described in par. (a) 1. to 3. using the environmental review process in its rules promulgated under s. 1.11 if the high capacity well is not located in a sensitive resource area.

SB291,9 Section 9. 281.34 (4g) of the statutes is created to read:

SB291,9,3 281.34 (4g) Approval deadlines. (a) Except as provided in par. (b), the department shall approve or deny an application for an approval for a high capacity well within the following period:

SB291,9,5 1. If an environmental review is not conducted under sub. (4), within 65 business days from the date of filing the application for the approval.

SB291,9,7 2. If an environmental review is conducted under sub. (4), within 130 business days from the date of filing the application for the approval.

SB291,9,9 (b) This subsection does not apply to an approval application for a high capacity well located in a sensitive resource area.

SB291,10 Section 10. 281.34 (5) (a) of the statutes is amended to read:

SB291,9,18 281.34 (5) (a) Public water supply. If the department determines that a proposed high capacity well may impair the water supply of a public utility engaged in furnishing water to or for the public, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, limited to those described in par. (f) 3. and 3m. and if applicable par. (f) 4., that will ensure that the water supply of the public utility will not be impaired.

SB291,11 Section 11. 281.34 (5) (b) of the statutes is amended to read:

SB291,9,25 281.34 (5) (b) Groundwater protection area. 1. Except as provided in subd. 2., if the department determines, under the environmental review process in sub. (4), that an environmental impact report under s. 23.11 (5) must be prepared for a proposed high capacity well located in a groundwater protection area, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, limited to those described in par. (f) 3. and 3m. and if applicable par. (f) 4., that ensure that the high capacity well does not cause significant environmental impact.

SB291,10,12 2. Subdivision 1. does not apply to a proposed high capacity well that is located in a groundwater protection area and that is a water supply for a public utility engaged in supplying water to or for the public, if the department determines that there is no other reasonable alternative location for a well and is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, limited to those described in par. (f) 3. and 3m. and if applicable par. (f) 4., that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.

SB291,12 Section 12. 281.34 (5) (c) of the statutes is amended to read:

SB291,10,22 281.34 (5) (c) High water loss. If the department determines, under the environmental review process in sub. (4), that an environmental impact report under s. 23.11 (5) must be prepared for a proposed high capacity well with a water loss of more than 95 percent of the amount of water withdrawn, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, limited to those described in par. (f) 3. and 3m. and if applicable par. (f) 4., that ensure that the high capacity well does not cause significant environmental impact.

SB291,13 Section 13. 281.34 (5) (d) of the statutes is amended to read:

SB291,11,7 281.34 (5) (d) Impact on a spring. 1. Except as provided in subd. 2., if the department determines, under the environmental review process in sub. (4), that an environmental impact report under s. 23.11 (5) must be prepared for a proposed high capacity well that may have a significant environmental impact on a spring, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, limited to those described in par. (f) 3. and 3m. and if applicable par. (f) 4., that ensure that the high capacity well does not cause significant environmental impact.

SB291,11,16 2. Subdivision 1. does not apply to a proposed high capacity well that may have a significant environmental impact on a spring and that is a water supply for a public utility engaged in supplying water to or for the public, if the department determines that there is no other reasonable alternative location for a well and is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, limited to those described in par. (f) 3. and 3m. and if applicable par. (f) 4., that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.

SB291,14 Section 14. 281.34 (5) (f) of the statutes is created to read:

SB291,11,23 281.34 (5) (f) Limitations on approval conditions for new high capacity wells. 1. In reviewing an application for an approval for a new high capacity well, the department may not impose conditions on any other existing well, regardless of the location of the existing well. The department may impose conditions in the approval for the new high capacity well only if the conditions are imposed for any of the following purposes, subject to subd. 2.:

SB291,12,5 a. To ensure that the new high capacity well together with other wells on the same property or on contiguous property owned by the new high capacity well owner will not cause a significant adverse environmental impact to a navigable water. In making this determination, the department shall consider the impact to a navigable water caused only by the new high capacity well together with other wells on the same property or on contiguous property owned by the new high capacity well owner and may not consider the impact caused by any other wells.

SB291,12,9 b. To require the owner of the new high capacity well to remedy an unreasonable harm caused by the new high capacity well to another person's well if the other person's well is not a high capacity well and it was in existence on the date of the application for approval of the new high capacity well.

SB291,12,12 2. a. In an approval to which par. (a), (b), (c), or (d) applies, the department shall also impose conditions for the purposes specified in par. (a), (b), (c), or (d), respectively.

SB291,12,18 b. Subdivision 1. a. does not apply to a new high capacity well that may cause a significant adverse environmental impact to a navigable water and that is a water supply for a public utility engaged in supplying water to or for the public if the department determines that there is no other reasonable alternative location for the well and determines that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.

SB291,12,21 3. Except as provided in subds. 3m. and 4., if the department imposes conditions in any approval for a new high capacity well, the department may only do the following:

SB291,12,22 a. Restrict the location of the high capacity well.

SB291,12,23 b. Restrict the depth of the high capacity well.

SB291,12,24 c. Restrict the pumping capacity of the high capacity well.

SB291,12,25 d. Restrict the rate of flow of the high capacity well.

SB291,13,3 e. Restrict the ultimate use of the high capacity well, except that the department may not require the high capacity well to be used for a purpose not proposed by the applicant in the approval application.

SB291,13,5 f. Impose conditions that the department is authorized to impose to meet the requirements of subd. 1. b.

SB291,13,7 g. Impose conditions consistent with department standards that apply to the construction of high capacity wells.

SB291,13,10 3m. Notwithstanding the limitations in subd. 1., the department may require monitoring as a condition in an approval for a new high capacity well if all of the following apply:

SB291,13,13 a. The department cannot ensure, without requiring monitoring, that the amount or rate of the groundwater withdrawal will not exceed the allowable amount or rate under this section or that the quality of the groundwater will not be impaired.

SB291,13,15 b. The monitoring conditions are imposed only for the purpose of assessing the water levels of navigable waters in the area or groundwater quality.

SB291,13,17 c. If a monitoring condition requires groundwater testing, the department requires testing of only groundwater withdrawn by the new high capacity well.

SB291,13,21 4. If the department issues an approval for a new high capacity well located in a sensitive resource area, the department may impose conditions in the approval, in addition to those specified under subds. 3. and 3m., only if they are consistent with the department's authority granted by statute.

SB291,15 Section 15. 281.34 (7) of the statutes is renumbered 281.34 (7) (a) and amended to read:

SB291,14,3 281.34 (7) (a) The department may not rescind an approval of a high capacity well issued under this section or under s. 281.17 (1), 2001 stats., remains in effect unless the department modifies or rescinds the approval because the high capacity well or the use of the high capacity well is not in conformance with standards or conditions applicable to contained in the approval of the high capacity well.

SB291,16 Section 16. 281.34 (7) (b) of the statutes is created to read:

SB291,14,11 281.34 (7) (b) 1. Except as provided in subd. 2., the department may impose new or modified conditions applicable to the approval of a high capacity well issued under this section or under s. 281.17 (1), 2001 stats., only if a hearing examiner determines that the imposition of new or modified conditions is necessary in order to abate an infringement of public rights in navigable waters and issues an order under s. 30.03 (4) requiring the owner of the high capacity well to comply with the new or modified conditions.

SB291,14,16 2. In addition to the department's authority under subd. 1., the department may impose new or modified conditions applicable to the approval of a high capacity well issued under this section or under s. 281.17 (1), 2001 stats., if the well is located in a sensitive resource area and the department is authorized to impose the new or modified conditions by statute.

SB291,14,20 3. Nothing in this paragraph prohibits the department from imposing a new condition, or modifying an existing condition, in an existing high capacity well approval if the high capacity well owner agrees to the imposition of the new or modified condition.

SB291,17 Section 17. 281.34 (7d) of the statutes is created to read:

SB291,14,24 281.34 (7d) Rules; approval applications. The department shall promulgate rules establishing the procedures for reviewing and acting on applications for approvals under this section.

SB291,18 Section 18. 281.34 (7g) of the statutes is created to read:

SB291,15,3 281.34 (7g) Rules. The department shall promulgate rules establishing a method for determining the minimum rate of flow of a stream and the minimum water level of a lake necessary to prevent all of the following:

SB291,15,5 (a) Endangerment of fish and aquatic life that are naturally sustainable absent any groundwater withdrawals affecting the stream or lake.

SB291,15,7 (b) Impairment of navigation of the type typically conducted on the stream or lake.

SB291,15,9 (c) Deterioration of the water quality of the stream or lake below public health and safety standards.

SB291,15,11 (d) Infringement upon a riparian owner's reasonable expectation of access to a lake.

SB291,15,13 (e) Impairment of any existing surface water diversions from the stream or lake.

SB291,19 Section 19. 281.34 (7m) of the statutes is created to read:

SB291,15,15 281.34 (7m) Sensitive resource areas. (a) In this subsection:

SB291,15,18 1. "Minimum level" means the rate of flow of a stream or the water level of a lake that is the minimum determined by the department using the method established under sub. (7g).

SB291,15,21 2. "Specified Waushara County lake areas" means Pleasant Lake in Waushara County, Plainfield Lake in Waushara County, Long Lake in Waushara County, and Huron Lake in Waushara County and the areas surrounding those lakes.

SB291,16,7 (ag) If the department has information or data from a professional geologist, professional hydrologist, or professional hydrogeologist showing that cumulative groundwater withdrawals from high capacity wells and other 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, the department shall request approval from the joint committee on finance to evaluate and model the hydrology of that area. The department may proceed with the requested action if within 14 working days of the request the committee does not schedule a meeting for the purpose of reviewing the department's request. If the committee schedules a meeting for the purpose of reviewing the department's request, the department may not take the requested action unless the committee approves the request.

SB291,16,11 (ar) The department shall evaluate and model the hydrology of all of the specified Waushara County Lake areas. The department shall conduct the activities required under this paragraph without requesting or obtaining approval from the joint committee on finance.

SB291,16,19 (b) If upon conclusion of the evaluation and modeling of an area under par. (ag) or (ar), the department 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, the department shall issue a decision on whether it recommends designation of the area as a sensitive resource area. If the department issues a decision recommending designation of the area as a sensitive resource area, the decision shall contain all of the following information:

SB291,16,22 1. A description of the extent to which the department 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.

SB291,17,2 1m. A description of the concrete scientific information that the department used to establish that there is a hydrologic connection between the groundwater in the area and the navigable waters in the area and the degree to which the department verified the connection by the use of field work or field study.

SB291,17,9 2. A description of the geographical boundaries of the area that the department recommends for designation as a sensitive resource area. The department shall identify in the description the specific navigable water or part of the navigable water that is or may be affected by the cumulative groundwater withdrawals and shall identify the location of the groundwater withdrawals that the department has determined are causing or may cause a reduction of a stream's or lake's rate of flow or water level below its minimum level.

SB291,17,16 3. Any proposed measures relating to groundwater withdrawal that the department recommends be taken in the area recommended for designation as a sensitive resource area to prevent or remedy a reduction of a stream's or lake's rate of flow or water level below its minimum level. If the department recommends special regulations for the area, the regulations may include 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.

SB291,17,18 4. The length of time that the department will reasonably require to review an application for approval of a new high capacity well in the area.

SB291,17,20 (c) The department shall hold a public informational hearing to solicit comments on the department's decision.

SB291,17,23 (d) 1. Notwithstanding s. 227.42 (1), any person is entitled to request that the hearing under par. (c) be treated as a contested case under ch. 227 if the person makes the request within 30 days after the department issues its decision under par. (b).

SB291,18,3 2. Any person may participate as a party if the person files a written notice with the hearing examiner setting forth his or her interest within 30 days after the date on which the request under subd. 1. is granted.

SB291,18,7 (e) A person seeking judicial review of a final decision in a contested case under par. (d) shall comply with the requirements for service and filing in s. 227.53 (1) (a) and shall commence the action no more than 30 days after a decision in the contested case is rendered.

SB291,18,14 (f) After the exhaustion of the period established for all administrative reviews and judicial reviews of a final decision in a contested case under par. (d), the department shall prepare a report on whether the area described in its decision under par. (b) should be designated as a sensitive resource area. The department shall submit the report to the chief clerk of each house of the legislature, for distribution under s. 13.172 (3) to the appropriate legislative standing committees generally responsible for legislation related to environmental issues.

SB291,18,22 (g) If the department recommends in its report submitted under par. (f) that the area described under par. (b) be designated as a sensitive resource area, the department shall prepare an additional report specifying any measures that the department recommends be conducted 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. The department shall submit the report to the chief clerk of each house of the legislature, for distribution under s. 13.172 (3) to the appropriate legislative standing committees generally responsible for legislation related to environmental issues.

SB291,18,23 (h) An area may be designated as a sensitive resource area only by statute.

SB291,20 Section 20. Nonstatutory provisions.

SB291,19,15 (1) Emergency rules. Using the procedure under section 227.24 of the statutes, the department of natural resources shall promulgate the rules required under section 281.34 (7d) and (7g) of the statutes, as created by this act, as emergency rules. The emergency rules shall remain in effect for the period before the effective date of the permanent rules promulgated under section 281.34 (7d) and (7g) of the statutes, as created by this act but not to exceed the period authorized under section 227.24 (1) (c) of the statutes, subject to extension under section 227.24 (2) of the statutes. Notwithstanding section 227.24 (2) of the statutes, the department may seek any number of extensions of the effective period of emergency rules under section 227.24 (2) of the statutes except that no extension shall be allowed after July 1, 2018. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

SB291,19,16 (2) Modification of previously issued approvals.