Amendment ASA1-AB477

AB477-ASA1,12,9 281.34 (5) (b) 3. In this paragraph, "navigable water" does not include an intermittent stream unless it is a trout stream described in sub. (1) (a) 3.

AB477-ASA1,17 Section 17. 281.34 (5) (c) of the statutes is amended to read:

AB477-ASA1,12,18 281.34 (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prepared for a proposed high capacity well with will have a water loss of more than 95 percent of the amount of water withdrawn, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to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), that ensure that the high capacity well does not cause significant environmental impact.

AB477-ASA1,18 Section 18. 281.34 (5) (d) of the statutes is amended to read:

AB477-ASA1,13,3 281.34 (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), that ensure that the high capacity well does not cause significant environmental impact.

AB477-ASA1,13,11 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), that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.

AB477-ASA1,19 Section 19. 281.34 (5) (f) of the statutes is created to read:

AB477-ASA1,13,15 281.34 (5) (f) Limitations on approval conditions for new high capacity wells. 1. Except as provided in subds. 4. and 5., the department may include conditions in an approval for a high capacity well only on the following:

AB477-ASA1,13,16 a. The location of the high capacity well.

AB477-ASA1,13,17 b. The depth of the high capacity well.

AB477-ASA1,13,18 c. The pumping capacity of the high capacity well.

AB477-ASA1,13,19 d. The rate of flow of the high capacity well.

AB477-ASA1,13,22 e. 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.

AB477-ASA1,13,25 2. The department may include the conditions under subd. 1. in the approval for a new high capacity well only if the conditions are included for any of the following purposes:

AB477-ASA1,14,7 a. To ensure that the new high capacity well will not significantly impair groundwater quality or exacerbate an impairment to groundwater quality because of existing contaminants in the area where the proposed well will be located. In making this determination, the department may consider the impact 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.

AB477-ASA1,14,8 b. For the purposes specified in par. (a), (b), (c), or (d), if applicable.

AB477-ASA1,14,12 3. Except as provided in subd. 5., the conditions under subd. 1. a. to e. that are included in an approval shall be identical to the information provided in the approval application unless different conditions are necessary to meet the purposes described in subd. 2.

AB477-ASA1,14,14 4. In addition to the conditions under subd. 1., the department may include the following conditions in an approval for a high capacity well:

AB477-ASA1,14,16 a. A requirement that the owner of the high capacity well comply with the compensation requirements under sub. (11).

AB477-ASA1,14,18 b. A requirement that the high capacity well comply with department standards that apply to the construction of high capacity wells.

AB477-ASA1,14,23 5. If the department issues an approval for a high capacity well located in a sensitive resource area, the department may include conditions in the approval in addition to those under subds. 1. and 4. if they are consistent with the department's authority granted by statute. Subdivision 3. does not apply to conditions included in an approval for a high capacity well located in a sensitive resource area.

AB477-ASA1,15,3 6. 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, unless the department is authorized to do so by statute.

AB477-ASA1,20 Section 20. 281.34 (5m) of the statutes is amended to read:

AB477-ASA1,15,9 281.34 (5m) Consideration of cumulative impacts. No person may challenge an approval, or an application for approval, of a high capacity well based on the lack of consideration of the cumulative environmental impacts of that high capacity well together with existing wells, unless the high capacity well is located in a sensitive resource area.

AB477-ASA1,21 Section 21. 281.34 (7) of the statutes is renumbered 281.34 (7) (a) and amended to read:

AB477-ASA1,15,16 281.34 (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.

AB477-ASA1,22 Section 22. 281.34 (7) (b) of the statutes is created to read:

AB477-ASA1,15,24 281.34 (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.

AB477-ASA1,16,5 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.

AB477-ASA1,16,10 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 and the condition is of the type that the department is authorized to impose under sub. (5) (f).

AB477-ASA1,23 Section 23. 281.34 (7g) of the statutes is created to read:

AB477-ASA1,16,15 281.34 (7g) Rules. (a) For the purpose of establishing a minimum level under sub. (7m), the department shall promulgate rules establishing the method for determining the minimum rate of flow of each stream and the minimum water level of each lake necessary to prevent all of the following:

AB477-ASA1,16,17 1. Endangerment of fish and aquatic life that are naturally sustainable absent any groundwater withdrawals affecting the stream or lake.

AB477-ASA1,16,19 2. Impairment of navigation of the type typically conducted on the stream or lake.

AB477-ASA1,16,23 3. Deterioration of the water quality of the stream or lake, caused by the reduction of the rate of flow or water level of the stream or lake, that results in a violation of a water quality standard set under rules promulgated by the department under s. 281.15.

AB477-ASA1,16,25 4. Infringement upon a riparian owner's reasonable expectation of access to a lake.

AB477-ASA1,17,2 5. Reduction in the amount of water available for any existing surface water diversion from the stream or lake that impairs the diversion's use.

AB477-ASA1,17,9 (b) The department shall promulgate rules defining what constitutes a significant measurable drawdown of a navigable water for purposes of sub. (7m) (m) 2. The department shall define a significant measurable drawdown as the amount of reduction of a rate of flow or a water level of a navigable water that is greater than the seasonal variation for that navigable water. The definition of a significant measurable drawdown shall be limited to rates of flow and water levels only, and shall not include any biological or other factors.

AB477-ASA1,17,12 (c) The department shall promulgate rules, consistent with this section, establishing its administrative procedures for receiving, reviewing, and acting on applications for approvals under this section.

AB477-ASA1,24 Section 24. 281.34 (7m) of the statutes is created to read:

AB477-ASA1,17,14 281.34 (7m) Sensitive resource areas. (a) In this subsection:

AB477-ASA1,17,17 1. "Minimum level" means the rate of flow of a stream or the water level of a lake that is the minimum for that stream or lake determined by the department using the method established under sub. (7g) (a).

AB477-ASA1,17,20 2. "Navigable stream or navigable lake" does not include an artificial water body, as defined under s. 30.19 (1b) (a), or a farm drainage ditch, as defined under s. 30.10 (4) (c).

AB477-ASA1,18,3 (ag) If the department has information or data, that the department determines to be credible, from a professional geologist, professional hydrologist, or professional hydrogeologist that shows 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 navigable stream's or navigable lake's rate of flow or water level below the minimum level determined for that stream or lake, the department shall request approval from the joint committee on finance to evaluate and model the hydrology of that area.

AB477-ASA1,18,10 (aj) If, during a calendar year, the department receives approval applications under this section for high capacity wells, located in a subwatershed area described by a 12-digit hydrologic unit code by the federal department of the interior or the federal department of agriculture, that would have a cumulative withdrawal capacity of more than 15 million gallons per day, the department shall request approval from the joint committee on finance to evaluate and model the hydrology of that area.

AB477-ASA1,18,16 (am) The department may proceed with the action requested under par. (ag) or (aj) if within 14 working days of the request the joint committee on finance 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.

AB477-ASA1,18,22 (ar) The department shall evaluate and model the hydrology of sections 32, 33, and 34 of the town of Coloma in Waushara County, the town of Oasis in Waushara County, the town of Saratoga in Wood County, and sections 2, 3, and 4 of the town of Springfield in Marquette County. The department shall conduct the activities required under this paragraph without requesting or obtaining approval from the joint committee on finance.

AB477-ASA1,19,5 (b) If upon conclusion of the evaluation and modeling of an area under par. (am) or (ar), the department determines that special measures relating to existing and potential groundwater withdrawal are necessary in that area to prevent or remedy a reduction of a navigable stream's or navigable 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:

AB477-ASA1,19,9 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 navigable stream's or navigable lake's rate of flow or water level below its minimum level.

AB477-ASA1,19,13 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.

AB477-ASA1,19,20 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 navigable stream's or navigable lake's rate of flow or water level below its minimum level.

AB477-ASA1,20,3 3. Any proposed measures relating to existing and potential 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 navigable stream's or navigable 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.

AB477-ASA1,20,5 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.

AB477-ASA1,20,11 (c) The department shall hold a public informational hearing to solicit comments on the department's decision. The department shall give notice of the hearing to each person who owns land in the area recommended for designation as a sensitive resource area and to each owner of a well in the area recommended for designation as a sensitive resource area if the well owner has notified the department of the location of that well.

AB477-ASA1,20,17 (f) After holding the public hearing under par. (c), 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.

AB477-ASA1,21,2 (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 navigable stream's or navigable 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.

AB477-ASA1,21,6 (gm) Neither a decision of the department under par. (b) nor a recommendation of the department under par. (f) are final decisions. Notwithstanding ss. 227.42 (1) and ss. 227.52, no person is entitled to administrative or judicial review of a department decision under par. (b) or a department recommendation under par. (f).

AB477-ASA1,21,7 (h) An area may be designated as a sensitive resource area only by statute.

AB477-ASA1,21,10 (j) The department's duty and authority with respect to high capacity well approvals in a sensitive resource area is limited to the duty and authority that is explicitly conferred upon the department by statute.

AB477-ASA1,21,21 (k) At least every 10 years after an area is designated as a sensitive resource area the department shall review the boundaries of the sensitive resource area and any measures that have been adopted by statute relating to the sensitive resource area to determine whether the boundaries and measures continue to be appropriate under this subsection. The department shall prepare a report on whether the boundaries and measures continue to be appropriate, whether the designation of the area as a sensitive resource area should be removed, or whether the boundaries and measures should be changed and, if so, the department's recommended changes. 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.

AB477-ASA1,21,23 (L) The designation of an area as a sensitive resource area may be removed only by an act of the legislature.

AB477-ASA1,22,4 (m) Subject to par. (n), the department may not issue an approval for a new high capacity well located in an area that the department has requested to evaluate and model under par. (ag) if the application for approval is filed after the department submits its request to the joint committee on finance, in an area described in par. (ar), or in an area that the department has requested to evaluate and model under par. (aj), unless any of the following occurs:

AB477-ASA1,22,7 1. The applicant provides the department with information that shows, and the department determines, that the proposed high capacity well will have no hydrologic connection to any existing navigable water.

AB477-ASA1,22,12 2. The applicant provides the department with information that shows, and the department determines, that the proposed high capacity well will not cause a significant measurable drawdown, as defined by the department by rule under sub. (7g) (b), of any navigable water to which the proposed well is hydrologically connected.

AB477-ASA1,22,14 (n) The restriction under par. (m) ceases to apply if one of the following events occurs:

AB477-ASA1,22,18 1. The joint committee on finance denies the department's request for approval under par. (ag) or (aj), if within 14 working days of the department requesting approval the joint committee on finance schedules a meeting for the purpose of reviewing the department's request.

AB477-ASA1,22,22 2. The department does not submit the report under par. (f) within 30 months after requesting approval under par. (ag) or (aj) or, with respect to an area described in par. (ar), within 30 months after the effective date of this subdivision .... [LRB inserts date].

AB477-ASA1,22,24 3. The department submits a report under par. (f) recommending that the area not be designated as a sensitive resource area.

AB477-ASA1,23,3 4. The legislature does not designate an area as a sensitive resource area by statute within 12 months after receiving a report from the department under par. (f) recommending that the area be designated as a sensitive resource area.

AB477-ASA1,23,6 5. The department does not submit the report under par. (g) within 12 months after submitting a report under par. (f) recommending that an area be designated as a sensitive resource area.

AB477-ASA1,23,8 6. The department submits a report under par. (g) recommending that no special measures relating to groundwater withdrawal be conducted in the area.

AB477-ASA1,23,11 7. The legislature does not adopt, by statute, special measures relating to groundwater withdrawal in an area within 12 months after receiving a report from the department under par. (g).

AB477-ASA1,23,13 8. The legislature adopts, by statute, special measures relating to groundwater withdrawal in a designated sensitive resource area.

AB477-ASA1,23,17 (p) In determining whether to approve or deny an application for approval to construct or withdraw water from a high capacity well located in a sensitive resource area, the department shall consider the cumulative environmental impacts of that high capacity well together with existing wells.

AB477-ASA1,25 Section 25. 281.34 (11) of the statutes is created to read:

AB477-ASA1,23,20 281.34 (11) Liability to other well owners. (a) In this subsection, "residential well" means a well that is not a high capacity well.

AB477-ASA1,23,25 (b) The owner of a high capacity well constructed after the effective date of this paragraph .... [LRB inserts date], shall provide compensation for replacing, modifying, or repairing a residential well to provide a well of similar type and design as the original well, and provide an interim potable water supply, to the owner of the residential well if all of the following apply:

AB477-ASA1,24,7 1. The residential well owner provides a notice to the owner of the high capacity well claiming that the residential well has experienced or is experiencing a significant loss of water or a significant decrease in water pressure that is caused by the high capacity well, and requests compensation from the owner of the high capacity well. The residential well owner shall provide the notice under this subdivision within 5 years after the high capacity well owner receives an approval under this section.

AB477-ASA1,24,9 2. The residential well was constructed before the construction of the high capacity well.

AB477-ASA1,24,14 3. The residential well owner has a well log on file with the department, or provides the owner of the high capacity well with a written report from a certified well driller or licensed plumber, completed within 6 months of the high capacity well owner or clerk submitting the notice under sub. (2d), that shows the construction details, depth, static water level, and pump setting, if applicable, of the well.

AB477-ASA1,24,19 4. The residential well owner provides the owner of the high capacity well with a written statement from a certified well driller or licensed plumber verifying that the residential well owner has experienced or is experiencing a significant loss of water or a significant decrease in water pressure because of a reduction of the well's static water level as compared to the level reported under subd. 3.

AB477-ASA1,25,7 (c) The owner of a high capacity well that receives a request for compensation under par. (b) may bring an action for a declaratory judgment on the issue of whether the high capacity well has caused or is causing the residential well to experience a significant loss of water or a significant decrease in water pressure. The owner of the high capacity well shall provide an interim potable water supply to the residential well owner until the final resolution of an action under this paragraph. Notwithstanding s. 814.04 (1), if the court determines in an action under this paragraph that the high capacity well has caused or is causing the residential well to experience a significant loss of water or a significant decrease in water pressure, the court shall award the residential well owner its reasonable attorney fees. The owner of the high capacity well may seek contribution from owners of other high capacity wells constructed after the construction of the residential well and after the effective date of this paragraph .... [LRB inserts date].

AB477-ASA1,26 Section 26. Nonstatutory provisions.

AB477-ASA1,25,23 (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 (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 (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.

AB477-ASA1,25,24 (2) Modification of previously issued approvals.

AB477-ASA1,25,25 (a) In this subsection:

AB477-ASA1,26,1 1. "Department" means the department of natural resources.

AB477-ASA1,26,2 2. "Owner" has the meaning given in section 281.34 (1) (d) of the statutes.

AB477-ASA1,26,9 (b) If the department issued an approval to an owner of a high capacity well under section 281.34 (2) of the statutes on or after July 6, 2011, and before the effective date of this paragraph, the department shall, upon the owner's request, review the conditions in the approval. If the conditions in the approval are not consistent with the department's authority under section 281.34 of the statutes, as affected by this act, the department shall remove or revise the conditions in the approval consistent with that authority.