Wisconsin's Wetland Reform Act. Kent and Jordan. Wis. Law. Feb. 2013.
Once a violation of former sub. (2) (a) (renumbered and amended to be sub. (3b) (b)) is proven,
Forest County v. Goode, 219 Wis. 2d 654
, sets forth a rebuttable presumption that the court should grant an injunction. The state is not required to prove particular instances of environmental harm to obtain an injunction. Once a violation is proven, it is the defendant who must establish compelling equitable reasons not to grant injunctive relief. State v. CGIP Lake Partners, LLP, 2013 WI App 122
, 351 Wis. 2d 100
, 839 N.W.2d 136
Wetland mitigation grant program. 281.37(1)(a)
“Department land” means land owned by or under easement to the state that is under the jurisdiction of the department and used for one of the purposes specified in s. 23.09 (2) (d)
“Mitigation program” means the wetland mitigation grant program established under sub. (2)
“Nonprofit organization" means an organization that is described in section 501
(c) (3) of the Internal Revenue Code and that is exempt from federal income tax under section 501
(a) of the Internal Revenue Code.
The department shall establish a wetland mitigation grant program under which it awards grants to nonprofit organizations to conduct projects to create, restore, or enhance wetlands under the in lieu fee subprogram in s. 281.36 (3r) (e)
on department land as provided in this subsection.
No later than 6 months after March 30, 2018, the department shall identify department land that is appropriate to include in the mitigation program. The department shall identify no less than 25 percent of department land for this purpose. The land identified shall include land in every watershed in the state.
No later than 3 months after completion of the land identification stage under sub. (3)
or at the beginning of the following fiscal year, whichever is earlier, and no later than July 1 of each subsequent year, the department shall issue a request for proposals from nonprofit organizations for grants to conduct wetland mitigation projects on department land identified under sub. (3)
. The issuance of each new request for proposal begins a new grant cycle.
The department shall require applications for grants under this section to include all of the following:
If possible, a specification of the functional values or uses listed in s. NR 103.03 (1)
, Wis. Adm. Code, that the project area does not provide or only sparsely provides.
A specification of the functional values or uses listed in s. NR 103.03 (1)
, Wis. Adm. Code, that the proposed project would create, restore, or enhance.
All information required to be submitted for approval to the U.S. army corps of engineers under 33 CFR part 332
and the Wisconsin Wetland Conservation Trust program instrument.
After issuing the request for proposals under par. (a)
, the department shall accept grant applications on a rolling basis over the course of a fiscal year. The department shall select and announce grant recipients under this subsection at the end of each quarter as funds are available.
If an application under sub. (4)
is approved, the grantee and the department, in consultation, shall identify all department permits required for the grantee to conduct the project. The department shall waive all permit fees for the grantee in relation to department permits required to conduct the project.
Notwithstanding timelines otherwise established for individual permits, within 60 days of receiving the grantee's application for an individual permit that is required to conduct the project, the department shall render a decision issuing, denying, or modifying the permit, and the department shall adjust all other deadlines relating to the review of the application accordingly.
The department shall pay out a grant under the mitigation program quarterly unless the department determines that more frequent payments are necessary to fulfill the objectives of the grant program. The department shall withhold the final payment until the grantee certifies that the project is complete.
If the grantee fails to certify that the project is complete by the date indicated for completion in its application, the department shall use the remaining unpaid grant amount to either complete the project or contract with or issue a grant to another nonprofit organization to complete the project. An organization that fails to certify completion of a project by the date indicated in its application for completion is not eligible for a new grant under the mitigation program for 2 grant cycles.
The department may agree to a modified deadline for the project if unusual or unforeseen circumstances cause a delay. If the department agrees to a modified deadline, the consequences under par. (b)
apply only if the grantee fails to certify that a project is complete by the date indicated in that agreement.
Before 6 months have elapsed after the 5th anniversary of the department's first issuance of a request for proposals under sub. (4)
, the department shall submit to the legislature under s. 13.172 (2)
a report analyzing the effectiveness of the first 5 years of the mitigation program and making recommendations for changes to the program.
History: 2017 a. 183
WATER AND SEWAGE FACILITIES; SEPTAGE DISPOSAL
Approval of plans. 281.41(1)(a)(a)
Except as provided under sub. (2)
, every owner within the time prescribed by the department, shall file with the department a certified copy of complete plans of a proposed system or plant or extension thereof, in scope and detail satisfactory to the department, and, if required, of existing systems or plants, and any other information concerning maintenance, operation and other details that the department requires, including the information specified under s. 281.35 (5) (a)
, if applicable. Material changes with a statement of the reasons shall be likewise submitted. Before plans are drawn, a statement concerning the improvement may be made to the department and the department may, if requested, outline generally what it will require. Upon receipt of the plans for approval, the department or its authorized representative shall notify the owner of the date of receipt.
Within 90 days from the time of receipt of complete plans or within the time specified in s. 281.35 (5) (c)
, if applicable, the department or its authorized representative shall examine and take action to approve, approve conditionally or reject the plans and shall state in writing any conditions of approval or reasons for rejection. Approval or disapproval of the plans and specifications may not be contingent upon eligibility of the proposed project for federal aid. The time period for review may be extended by agreement with the owner if the plans and specifications cannot be reviewed within the specified time limitation due to circumstances beyond the control of the department or in the case of extensive installation involving expenditures of $350,000 or more. The extension may not exceed 6 months. Failure of the department or its authorized representative to act before the expiration of the time period allowed for review shall constitute an approval of the plans, and upon demand a written certificate of approval shall be issued. Approval may be subject to modification by the department upon due notice.
Construction or material change shall be according to approved plans only. The department may disapprove plans that are not in conformance with any existing approved areawide waste treatment management plan prepared pursuant to the federal water pollution control act, P.L. 92-500
, as amended, and shall disapprove plans that do not meet the grounds for approval specified under s. 281.35 (5) (d)
, if applicable. The department shall disapprove plans that are not in conformance with any applicable approved water supply service area plan under s. 281.348
The department may, by rule, exempt an owner of a specific type of system or plant from the requirements of sub. (1)
or modify the requirements of sub. (1)
for a specific type of system or plant.
In this subsection, “septage service area" means the area containing private on-site wastewater treatment systems served or anticipated to be served by a sewage disposal plant during the planning period.
If an owner proposes a sewage disposal plant or an extension of an existing sewage disposal plant that increases the capacity of the existing plant by at least 20 percent, the department shall require that owner, in preparing a plan under this section, to address the need for, and include plans for, the disposal of septage, as defined in s. 281.48 (2) (d)
. The department shall require an owner to address all of the following under this paragraph:
The amount of septage produced throughout the septage service area and the expected increase in septage production during the planning period.
The capacity for the disposal of septage during the planning period on land within the septage service area, in the sewage disposal plant, and by other available methods.
The location of private on-site wastewater treatment systems within the septage service area, and the distances required to haul septage for disposal either on land or in the sewage disposal plant.
The potential for contracts with private on-site wastewater treatment system owners, licensed disposers, as defined in s. 281.49 (1) (b)
, or municipalities to assure delivery of septage to the sewage disposal plant.
In addressing the need for the disposal of septage and the information required under par. (b)
, the owner is required only to use data or other information that has previously been collected, whether by the owner or by others, and the owner is not required to conduct new research.
The information required under par. (b)
is for the purpose of assuring that septage disposal needs are considered in the decision-making process for sewage disposal plant planning, but par. (b)
does not require construction of facilities for the handling or disposal of septage.
When the department receives for review a plan under sub. (1)
that would result in returning water transferred from the Great Lakes basin to the source watershed through a stream tributary to one of the Great Lakes, the department shall provide notice of the plan or revision to the governing body of each city, village, and town through which the stream flows or that is adjacent to the stream downstream from the point at which the water would enter the stream.
The department shall establish an expedited procedure for approval of plans under this section. The expedited procedure shall apply, in lieu of the procedure under sub. (1) (b)
, if the department determines that all of the following are satisfied:
The plan design is of a common construction and size or is for a minor addition to an existing facility.
The plan design is submitted by a registered professional engineer.
The plan design is submitted by a person who has designed similar facilities and none of those similar facilities has caused adverse impacts to the environment.
The plan design contains no unusual siting requirements or other unique design features.
The plan design is not likely to have an adverse impact on the environment.
See also chs. NR 108
, and 142
, Wis. adm. code.
NOTE: 2005 Wis. Act 347
, which affected this section, contains extensive explanatory notes.
Joint sewerage systems. 281.43(1)
The department of natural resources may require the sewerage system, or sewage or refuse disposal plant of any governmental unit including any town, village or city, to be so planned and constructed that it may be connected with that of any other town, village or city, and may, after hearing, upon due notice to the governmental units order the proper connections to be made or a group of governmental units including cities, villages, town sanitary districts or town utility districts may construct and operate a joint sewerage system under this statute without being so required by order of the department of natural resources but following hearing and approval of the department.
An order by the department for the connection of unincorporated territory to a city or village system or plant under this section shall not become effective for 30 days following issuance. Within 30 days following issuance of the order, the governing body of a city or village subject to an order under this section may commence an annexation proceeding under s. 66.0219
to annex the unincorporated territory subject to the order. If the result of the referendum under s. 66.0219 (4)
is in favor of annexation, the territory shall be annexed to the city or village for all purposes, and sewerage service shall be extended to the territory subject to the order. If an application for an annexation referendum is denied under s. 66.0219 (2)
or the referendum under s. 66.0219 (4)
is against the annexation, the order shall be void. If an annexation proceeding is not commenced within the 30-day period, the order shall become effective.
When one governmental unit renders service to another under this section, reasonable compensation shall be paid. The officials in charge of the system, of the governmental unit furnishing the service shall determine the reasonable compensation and report to its clerk who shall, on or before August 1 of each year, certify a statement thereof to the clerk of the governmental unit receiving the service. The clerk of the governmental unit receiving the service shall extend the amount shown in the statement as a charge on the tax roll, in the following manner:
If the service rendered is available to substantially all improved real estate in the member governmental unit receiving the service, the charges shall be placed upon the tax roll of the member governmental unit as a general tax.
If the service rendered is for the benefit of public highways in, or real estate owned or operated by, the member governmental unit receiving the service, the charges for the service shall be placed upon the tax roll of the member governmental unit as a general tax.
If the service rendered does not come under the provisions of subd. 1.
, the charges for the service shall be placed upon the tax roll of the member governmental unit as a special tax upon each parcel of real estate benefited; and when collected it shall be paid to the treasurer of the member governmental unit rendering the service. Where the charges are to be extended on the tax roll under the provisions of this subdivision, the clerk of the member governmental unit furnishing the service shall itemize the statement showing separately the amount charged to each parcel of real estate benefited.
If, due to delay in determination, a charge described in par. (a)
cannot be extended on the tax roll of any particular year, it shall be extended as soon as possible.
If the governing body of any governmental unit deems the charge unreasonable, it may by resolution within 20 days after the filing of the report with its clerk:
Submit to arbitration by 3 reputable and experienced engineers, one chosen by each governmental unit, and the 3rd by the other 2. If the engineers are unable to agree, the vote of 2 shall be the decision. They may affirm or modify the report, and shall submit their decision in writing to each governmental unit within 30 days of their appointment unless the time be extended by agreement of the governmental units. The decision shall be binding. Election to so arbitrate shall be a waiver of right to proceed by action. Two-thirds of the expense of arbitration shall be paid by the governmental unit requesting it, and the balance by the other.
Any 2 or more governmental units, including cities, villages, town sanitary districts or town utility districts not wishing to proceed under sub. (2)
may jointly construct, operate and maintain a joint sewerage system, inclusive of the necessary intercepting sewers and sewerage treatment works. Such joint action by 2 governmental units shall be carried out by a sewerage commission consisting of one member appointed by each of the governing bodies of such governmental units and a 3rd member to be selected by the 2 members so appointed, or in lieu thereof said sewerage commission may consist of 2 members appointed by the governing body of each governmental unit and a 5th member to be selected by the 4 members so appointed or where more than 2 governmental units act to form the commission, the representation on the commission shall be in accordance with a resolution approved by the member governmental units.
Where such sewerage commission shall consist of 3 members, the members chosen by the 2 members first appointed shall serve for 2 years, while the members appointed by the governing bodies of the 2 governmental units shall serve for terms of 4 and 6 years, respectively, the length of term of each to be determined by lot. All subsequent appointments, except for unexpired terms, shall be for 6 years. All such members shall serve until their successors shall have been appointed and shall have qualified.
Where such sewerage commission shall consist of 5 members, the member chosen by the 4 members first appointed shall serve for one year, while the members appointed by the governing bodies of the 2 governmental units shall serve for terms of 2, 3, 4 and 5 years respectively, the length of terms of each to be determined by lot. All subsequent appointments, except for unexpired terms, shall be for 6 years. All such members shall serve until their successors shall have been appointed and shall have qualified.
Where such sewerage commission representation shall be formed by approval of a resolution, the resolution shall state the method of appointing commissioners and the term of office of each commissioner.
The sewerage commissioners shall project, plan, construct and maintain in the district comprising the member governmental units intercepting and other main sewers for the collection and transmission of house, industrial and other sewage to a site or sites for disposal selected by them, such sewers to be sufficient, in the judgment of the sewerage commissioners, to care for such sewage of the territory included in such district. The sewerage commissioners shall project, plan, construct and operate sewage disposal works at a site or sites selected by them which may be located within or outside of the territory included in the district. The sewerage commissioners may also project, plan, construct and maintain intercepting and other main sewers for the collection and disposal of storm water which shall be separate from the sanitary sewerage system. The sewerage commissioners may also project, plan, construct and operate solid waste disposal works at a site or sites selected by them which may be located within or outside of the territory included in the district or by contract with counties or municipalities which have solid waste disposal facilities. The sewerage commissioners may employ and fix compensation for engineers, assistants, clerks, employees and laborers, or do such other things as may be necessary for the due and proper execution of their duties. Such sewage disposal works may be used by the sewerage commissioners and by such governmental units for the disposal of garbage, refuse and rubbish.
Such sewerage commission shall constitute a body corporate by the name of “(Insert name of governmental units or area) Sewerage Commission," by which in all proceedings it shall thereafter be known. It may purchase, take and hold real and personal property for its use and convey and dispose of the same. This grant of power shall be retroactive to September 13, 1935 for commissions formed prior to January 1, 1972. Except as provided in this subsection the sewerage commissioners shall have the power and proceed as a common council and board of public works in cities in carrying out the provisions of par. (c)
. All borrowing under s. 24.61 (3) (a) 5.
and all bond issues and appropriations made by said sewerage commission shall be subject to the approval of the governing bodies of the respective governmental units.
Each such governmental unit shall pay for its proportionate share of such sewerage system, including additions thereto, and also its proportionate share of all operation and maintenance costs as may be determined by the sewerage commission. Each governmental unit may borrow money and issue revenue or general obligation bonds therefor, for the acquisition, construction, erection, enlargement and extension of a joint sewage disposal plant or refuse or rubbish or solid waste disposal plant or system or any combination of plants provided under this section, and to purchase a site or sites for the same. Each governmental unit may, if it so desires, proceed under s. 66.0821
in financing its portion of the cost of the construction, operation and maintenance of the joint sewage disposal plant or plants provided for in this section, or system.
Any such governmental unit being aggrieved by the determination of the sewerage commission on matters within its jurisdiction may appeal to the circuit court as provided in sub. (3) (b)
Sub. (1m), which voids a DNR sewerage connection order if the electors in the affected town area reject annexation to the city ordered to extend sewerage service, represents a valid legislative balancing and accommodation of 2 statewide concerns: urban development and pollution control. City of Beloit v. Kallas, 76 Wis. 2d 61
, 250 N.W.2d 342
A joint sewerage commission may enact and enforce regulations required of it under Clean Water Act of 1977, but it cannot make appropriations or issue bonds without approval of the governing bodies that established it. 68 Atty. Gen. 83.
To assure preservation of public health, comfort and safety, any city, village or town or town sanitary district having a system of waterworks or sewerage, or both, may by ordinance require buildings used for human habitation and located adjacent to a sewer or water main, or in a block through which one or both of these systems extend, to be connected with either or both in the manner prescribed. If any person fails to comply for more than 10 days after notice in writing the municipality may impose a penalty or may cause connection to be made, and the expense thereof shall be assessed as a special tax against the property. Except in 1st class cities, the owner may, within 30 days after the completion of the work, file a written option with the municipal clerk stating that he or she cannot pay the amount in one sum and asking that it be levied in not to exceed 5 equal annual installments, and the amount shall be so collected with interest at a rate not to exceed 15 percent per year from the completion of the work, the unpaid balance to be a special tax lien.
History: 1979 c. 110
s. 60 (13)
; 1979 c. 221
; 1983 a. 150
; 1995 a. 227
; Stats. 1995 s. 281.45.
Sewage drains; sewage discharge into certain lakes. 281.47(1)(a)(a)
When any city, village, town or owner has constructed or constructs a sewage system complying with s. 281.41
, the outflow or effluent from such system may be discharged into any stream or drain constructed pursuant to law, but no such outflow of untreated sewage or effluent from a primary or secondary treatment plant from a city, village, town, town sanitary district or metropolitan sewage district in a county having a population of 240,000 or more, according to the latest U.S. bureau of census figures available including any special census of municipalities within the county, any part of which is located within a drainage basin which drains into a lake of more than 2 square miles and less than 16 square miles in area, shall be discharged directly into, or through any stream, or through any drain, into such a lake located within 18 miles of the system or plant of such city, village, town, town sanitary district or metropolitan sewage district. All necessary construction of plant, system or drains for full compliance with this subsection in the discharge of untreated sewage or sewage effluent from all existing primary or secondary plants shall be completed by September 1, 1970, and the plans for any new system or plant shall include provisions for compliance with this subsection. The department may at any time order and require any owner of an existing plant to prepare and file with it, within a prescribed time, preliminary or final plans or both, for proposed construction to comply with this subsection.
Any municipality, which, on April 30, 1972, has an operating sewerage collection and treatment system and has an application for attachment to a metropolitan sewerage district pending in the county court, in such a county, any part of which is located within such a drainage basin and which is located within 10 miles of a metropolitan sewerage district on September 1, 1967, shall be added to the metropolitan sewerage district upon application of the governing body of the municipality as provided in s. 66.205 (1)
, 1969 stats., if such petitioning municipality pays its fair share of the cost of attachment as determined by mutual agreement or a court of competent jurisdiction.
Except as provided in subd. 2.
, in lieu of construction in compliance with par. (a)
for diversion from lakes described in par. (a)
, any owner of an existing plant, on or before September 1, 1967, or any owner of a new system or plant prior to construction of the new system or plant, may file with the department plans for advanced treatment of effluent from primary or secondary treatment that in the judgment of the department will accomplish substantially the same results in eliminating nuisance conditions on a lake described in par. (a)
as would be accomplished by diversion of secondary sewage effluent from the lake, without at the same time creating other objectionable or damaging results. The owner of the plant or system is exempt from par. (a)
for diversion from the lakes described in par. (a)
upon approval of the plans submitted under this paragraph and installation of advanced treatment facilities and procedures in compliance therewith.
Nothing in subd. 1.
impairs the authority of the department to require at any time preliminary or final plans, or both, for diversion construction.
Any person violating this subsection or any order issued in furtherance of compliance therewith shall forfeit to the state not less than $100 nor more than $500 for each violation, failure or refusal. Each day of continued violation is deemed a separate offense. No such penalty shall be invoked during the time that any petition for review of an order is pending under s. 281.19 (8)
until final disposition thereof by the courts, if judicial review is sought under ch. 227