281.11 History
History: 1995 a. 227 s.
374.
281.11 Cross-reference
Cross-reference: See also s.
NR 103.05, Wis. adm. code.
281.11 Annotation
A possessor of land who withdraws ground water for beneficial purposes is not liable for interference with another's water use unless the withdrawal causes unreasonable harm by lowering the water table or artesian pressure, the ground water forms an underground stream, or the withdrawal has a substantial effect on a watercourse or lake. State v. Michels Pipeline Construction, Inc.
63 Wis. 2d 278,
217 N.W.2d 339,
219 N.W.2d 308 (1974).
281.11 Annotation
A municipality's supplying of water to its inhabitant is not a proprietary function immune from the provisions of ch. 144 [now chs. 280-299]. The protection of public health is a matter of state-wide concern over which the legislature may exercise its police powers to insure a healthful water supply. Village of Sussex v. DNR,
68 Wis. 2d 187,
228 N.W.2d 173 (1975).
281.11 Annotation
Sections 281.11 and 281.12 expressly delegate regulatory authority to the DNR necessary to fulfill its mandatory duty to protect, maintain, and improve the quality and management of the waters of the state, ground and surface, public and private. That ss. 281.11 and 281.12 do not mention wells in particular does not mean that the statutes do not grant the DNR the authority to control or regulate wells by considering environmental factors relevant to protecting, maintaining, and improving waters of the state. Lake Beulah Management District v. DNR, 2010 WI App 85, ___ Wis. 2d___, ___ N.W.2d ___,
08-3170.
281.11 Annotation
The legislature's mandate that the DNR complete a formal environmental review for only certain wells under ss. 281.34 and 281.35 does not prohibit or rescind the DNR's authority to review other wells under ss. 281.11 and 281.12. However, there is no requirement mandating the DNR to do a full examination of every well to see if the public trust doctrine is affected. It is for the DNR to determine the type and quantum of evidence that it deems enough to investigate, but scientific evidence suggesting an adverse affect to waters of the state should be enough to warrant further, independent investigation. Lake Beulah Management District v. DNR, 2010 WI App 85, ___ Wis. 2d___, ___ N.W.2d ___,
08-3170.
281.11 Annotation
Department regulatory power over wetlands is discussed. 68 Atty. Gen. 264.
281.11 Annotation
The public trust doctrine. 59 MLR 787.
281.11 Annotation
Theories of water pollution litigation. Davis, 1971 WLR 738.
281.11 Annotation
Carrying capacity controls for recreation water uses. Kusler, 1973 WLR 1.
281.12
281.12
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.
281.12(3)
(3) 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.
281.12(5)
(5) 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.
281.12 History
History: 1995 a. 227 ss.
376,
383,
385,
987;
1995 a. 378 s.
42.
281.12 Annotation
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 Wis. 2d 1,
552 N.W.2d 110 (Ct. App. 1996),
95-3125.
281.12 Annotation
Sections 281.11 and 281.12 expressly delegate regulatory authority to the DNR necessary to fulfill its mandatory duty to protect, maintain, and improve the quality and management of the waters of the state, ground and surface, public and private. That ss. 281.11 and 281.12 do not mention wells in particular does not mean that the statutes do not grant the DNR the authority to control or regulate wells by considering environmental factors relevant to protecting, maintaining, and improving waters of the state. Lake Beulah Management District v. DNR, 2010 WI App 85, ___ Wis. 2d___, ___ N.W.2d ___,
08-3170.
281.12 Annotation
The legislature's mandate that the DNR complete a formal environmental review for only certain wells under ss. 281.34 and 281.35 does not prohibit or rescind the DNR's authority to review other wells under ss. 281.11 and 281.12. However, there is no requirement mandating the DNR to do a full examination of every well to see if the public trust doctrine is affected. It is for the DNR to determine the type and quantum of evidence that it deems enough to investigate, but scientific evidence suggesting an adverse affect to waters of the state should be enough to warrant further, independent investigation. Lake Beulah Management District v. DNR, 2010 WI App 85, ___ Wis. 2d___, ___ N.W.2d ___,
08-3170.
281.13
281.13
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:
281.13(1)(a)1.
1. To determine the nature and condition of the unpolluted natural water sources.
281.13(1)(a)2.
2. To determine to what extent the natural water sources are being contaminated by sewage from cities, villages and towns.
281.13(1)(a)3.
3. To determine to what extent the natural water sources are being polluted by other wastes.
281.13(1)(b)
(b) 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.
281.13(3)
(3) 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.
281.13 History
History: 1995 a. 227 ss.
372,
382;
1995 a. 378 s.
40;
1997 a. 35.
281.14
281.14
Wisconsin River monitoring and study. 281.14(2)
(2) The department shall conduct a program to monitor and study the introduction of nutrients from point sources and nonpoint sources into the Wisconsin River from the city of Merrill to the Castle Rock Flowage dam. The department shall seek to do all of the following under this subsection:
281.14(2)(a)
(a) Identify the amounts of nutrients being introduced into the river.
281.14(2)(b)
(b) Characterize and quantify the nutrients, in particular nitrogen and phosphorus, introduced into the river from nonpoint sources relative to climate, land use, soil type, elevation, and drainage.
281.14(2)(c)
(c) Collect water quality information for locations on the river itself and for major tributaries and major impoundments to use in evaluating the biological, physical, and chemical properties of the water and to use as data in watershed and river models.
281.14(2)(d)
(d) Use watershed and river models and the information collected under this subsection and from other sources to forecast the effect on water quality of different methods of reducing the amounts of nutrients introduced into the river.
281.14(2)(e)
(e) Develop tools to use in selecting and implementing methods of reducing the amounts of nutrients introduced into the river.
281.14 History
History: 2009 a. 28.
281.15
281.15
Water quality standards. 281.15(1)
(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.
281.15(2)
(2) 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:
281.15(2)(a)
(a) At least annually publish and provide public notice of water quality criteria to be adopted, revised or reviewed in the following year.
281.15(2)(b)
(b) 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.
281.15(2)(c)
(c) Establish criteria which are no more stringent than reasonably necessary to assure attainment of the designated use for the water bodies in question.
281.15(2)(d)
(d) Employ reasonable statistical techniques, where appropriate, in interpreting the relevant water quality data.
281.15(2)(e)
(e) 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.
281.15(3)
(3) Subsection (2) does not apply to rules promulgated under this section by the department for any substance before November 10, 1987.
281.15(4)
(4) 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.
281.15(5)
(5) The department shall comply with this section with respect to all water quality criteria adopted or revised after November 10, 1987.
281.15 History
History: 1995 a. 227 s.
377;
1995 a. 378 s.
41.
281.16
281.16
Water quality protection; nonpoint sources. 281.16(1)(a)
(a) "Agricultural facility" means a structure associated with an agricultural practice.
281.16(1)(b)
(b) "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 to
3836; and vegetable raising.
281.16(1)(c)
(c) "Livestock operation" means a feedlot or other facility or a pasture where animals are fed, confined, maintained or stabled.
281.16(1)(e)
(e) "Nonpoint source" means a facility or practice that causes, or has the potential to cause, nonpoint source water pollution.
281.16(1)(f)
(f) "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).
281.16(1)(g)
(g) "Water quality management area" means any of the following:
281.16(1)(g)1.
1. 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.
281.16(1)(g)2.
2. The area within 300 feet from the ordinary high-water mark of navigable waters that consist of a river or stream.
281.16(1)(g)3.
3. A site that is susceptible to groundwater contamination or that has the potential to be a direct conduit for contamination to reach groundwater.
281.16(2)
(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.
281.16(2)(b)
(b) The department shall, by rule, specify a process for the development and dissemination of technical standards to implement the performance standards under
par. (a).
281.16(3)
(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:
281.16(3)(a)1.
1. That a livestock operation may have no overflow of manure storage structures.
281.16(3)(a)2.
2. That a livestock operation may have no unconfined manure pile in a water quality management area.
281.16(3)(a)3.
3. That a livestock operation may have no direct runoff from a feedlot or stored manure into the waters of the state.
281.16(3)(a)4.
4. 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.
281.16(3)(b)
(b) 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).
281.16(3)(c)
(c) 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.
281.16(3)(d)
(d) The conservation practices and technical standards under
pars. (b) and
(c) shall at a minimum cover animal waste management, nutrients applied to the soil and cropland sediment delivery.
281.16(3)(e)
(e) 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
s. 92.14 or
281.65 or from any other source, to the owner or operator. For the purposes of this paragraph,
sub. (4) and
ss. 92.07 (2),
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
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) or
92.15 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.
281.16(4)
(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
s. 92.14 or
281.65 or from any other source.
281.16 History
History: 1997 a. 27;
1999 a. 9;
2009 a. 28.
281.16 Cross-reference
Cross-reference: See also ch.
NR 243, Wis. adm. code.
281.165
281.165
Compliance with water quality standards for wetlands. 281.165(1)(1)
Compliance; exemption. An activity shall be considered to comply with the water quality standards that are applicable to wetlands and that are promulgated as rules under
s. 281.15 and is exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure or penalty specified under
s. 29.601 (3) or
chs. 30,
31,
281,
283,
289 to
292 or
299 or specified under any rule promulgated, order issued or ordinance adopted under any of those sections or chapters, if the activity meets all of the requirements under either
sub. (2) or
(3).
281.165(2)
(2) Trempealeau County. Subsection (1) applies to an activity that meets all of the following requirements:
281.165(2)(a)
(a) The wetland area that will be affected by the activity is less than 15 acres in size.
281.165(2)(b)
(b) The site of the activity is zoned for industrial use and is in the vicinity of a manufacturing facility.
281.165(2)(c)
(c) The site of the activity is within the corporate limits of a city on January 1, 1999.
281.165(2)(d)
(d) The governing body of the city adopts a resolution stating that the exemption under this section is necessary to protect jobs that exist in the city on the date of the adoption of the resolution or is necessary to promote job creation.
