Amendment ASA1-AB477

Activities exempt from approval

This substitute amendment also provides that no additional approval is needed for the owner of an approved high capacity well to 1) repair or maintain the well, 2) reconstruct the existing high capacity well if the reconstructed well meets certain conditions, or 3) transfer the approval at the same time as the owner transfers the land on which the approved high capacity well is located. The substitute amendment also provides that under certain circumstances an additional approval is not required to replace an existing high capacity well. The new high capacity well must be constructed in accordance with DNR standards that apply to the construction of new high capacity wells on the date that construction of the replacement begins and must satisfy certain other requirements. The well replacement must be undertaken to remedy or prevent contamination or the replacement well must be drilled to substantially the same depth as the existing well and be located within a certain radius of the existing well. No additional fee is required for any of these actions, but the owner of the existing approved high capacity well must notify DNR of any replacement, reconstruction, or transfer. The owner may not take any of these actions if they would be inconsistent with the conditions of the existing high capacity well approval. The conditions of the approval issued for the existing high capacity well continue to apply after any of these actions are taken.

Notice to other well owners

The substitute amendment requires an applicant for approval of a new high capacity well to provide notice to each owner of a non-high capacity well located within a one-mile radius of the proposed high capacity well.

Liability to other well owners

This substitute amendment also requires the owner of a high capacity well that causes a non-high capacity well to experience a substantial loss of water or a significant decrease in water pressure to provide compensation for replacing, modifying, or repairing the well and provide an interim potable water supply to the owner of the non-high capacity well, under certain circumstances. A high capacity well owner that disputes that the high capacity well has caused the negative effects to the non-high capacity well may bring an action for declaratory judgment on the issue of causation.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB477-ASA1,1 Section 1. 281.34 (1) (bm) of the statutes is created to read:

AB477-ASA1,6,3 281.34 (1) (bm) "Intermittent stream" means a stream that does not have a continuous flow every day of every year in which there is average precipitation.

AB477-ASA1,2 Section 2. 281.34 (1) (cm) of the statutes is created to read:

AB477-ASA1,6,7 281.34 (1) (cm) "Navigable water" means a natural navigable water and 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-ASA1,3 Section 3. 281.34 (1) (em) of the statutes is created to read:

AB477-ASA1,6,10 281.34 (1) (em) "Reconstruct" means to modify original construction including deepening, lining, installing or replacing a screen, and underreaming.

AB477-ASA1,4 Section 4. 281.34 (1) (er) of the statutes is created to read:

AB477-ASA1,6,13 281.34 (1) (er) "Sensitive resource area" means an area designated as a sensitive resource area by statute.

AB477-ASA1,5 Section 5. 281.34 (1m) of the statutes is created to read:

AB477-ASA1,6,19 281.34 (1m) Limits on regulatory authority. (a) Notwithstanding ss. 281.11 and 281.12 (1), the department's duty and authority, including public trust duties or rule-making authority, with respect to issuance of high capacity well approvals is limited to the duty and authority that is explicitly conferred upon the department by this section.

AB477-ASA1,7,2 (b) Paragraph (a) does not limit the department's authority to regulate water withdrawals under ss. 281.346 and 281.35.

AB477-ASA1,6 Section 6. 281.34 (2) of the statutes is amended to read:

AB477-ASA1,7,16 281.34 (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 specify in the application the location, depth, maximum pumping capacity, maximum rate of flow, and ultimate use of the proposed high capacity well and 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, pays the required fee, and complies with the notice requirement under sub. (2d), 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.

AB477-ASA1,7 Section 7. 281.34 (2d) of the statutes is created to read:

AB477-ASA1,8,2 281.34 (2d) Notice to other well owners. An owner who applies for approval of a new high capacity well under this section shall provide notice to each owner of a well that is not a high capacity well within a one-mile radius of the location of the proposed high capacity well, or the applicant shall request the clerk of each town, city, or village within a one-mile radius of the location of the proposed high capacity well to provide, and the clerk shall provide, the notice. The notice shall include the location of the proposed high capacity well and inform well owners of their rights under sub. (11). The notice shall be provided no later than the date on which the application for approval is filed.

AB477-ASA1,8 Section 8. 281.34 (2g) of the statutes is created to read:

AB477-ASA1,8,8 281.34 (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:

AB477-ASA1,8,9 1. Repair and maintain the existing high capacity well.

AB477-ASA1,8,15 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, and if any of the following applies:

AB477-ASA1,8,18 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.

AB477-ASA1,8,25 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 water than the existing high capacity well and will not be located within 1,200 feet of any other navigable water. In this subd. 2. b., "navigable water" does not include an intermittent stream unless it is a trout stream described in sub. (1) (a) 3.

AB477-ASA1,9,3 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.

AB477-ASA1,9,5 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.

AB477-ASA1,9,6 (b) The department may not impose a fee for any action under this subsection.

AB477-ASA1,9,11 (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.

AB477-ASA1,9,14 (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).

AB477-ASA1,9,16 (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.

AB477-ASA1,9 Section 9. 281.34 (4) (a) (intro.) of the statutes is amended to read:

AB477-ASA1,9,20 281.34 (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:

AB477-ASA1,10 Section 10. 281.34 (4) (a) 1. of the statutes is renumbered 281.34 (4) (a) 1. (intro.) and amended to read:

AB477-ASA1,9,24 281.34 (4) (a) 1. (intro.) A high capacity well that is located in a groundwater protection area. within 1,200 feet of one of the following:

AB477-ASA1,11 Section 11. 281.34 (4) (a) 1. a. and b. of the statutes are created to read:

AB477-ASA1,10,1 281.34 (4) (a) 1. a. A trout stream described in sub. (1) (a) 3.

AB477-ASA1,10,3 b. A navigable water, not including an intermittent stream other than a trout stream described in sub. (1) (a) 3.

AB477-ASA1,12 Section 12. 281.34 (4) (am) of the statutes is created to read:

AB477-ASA1,10,8 281.34 (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.

AB477-ASA1,13 Section 13. 281.34 (4g) of the statutes is created to read:

AB477-ASA1,10,12 281.34 (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:

AB477-ASA1,10,17 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 for applications filed on or after the effective date of this subdivision .... [LRB inserts date], or within 65 business days from the effective date of this subdivision .... [LRB inserts date], for applications filed before that date.

AB477-ASA1,10,22 2. If an environmental review is conducted under sub. (4), within 130 business days from the date of filing the application for the approval for applications filed on or after the effective date of this subdivision .... [LRB inserts date], or within 130 business days from the effective date of this subdivision .... [LRB inserts date], for applications filed before that date.

AB477-ASA1,10,25 (am) The department shall refund to the applicant the application fee for a high capacity well approval if the department does not approve or deny the application within the period specified under par. (a).

AB477-ASA1,11,3 (b) This subsection does not apply to an approval application for a high capacity well located in a sensitive resource area, if a different deadline is specified for that sensitive resource area by statute.

AB477-ASA1,14 Section 14. 281.34 (5) (a) of the statutes is amended to read:

AB477-ASA1,11,11 281.34 (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), that will ensure that the water supply of the public utility will not be impaired.

AB477-ASA1,15 Section 15. 281.34 (5) (b) of the statutes is amended to read:

AB477-ASA1,11,22 281.34 (5) (b) Groundwater protection area Within 1,200 feet of a navigable water or trout stream. 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 will be located in a groundwater protection area within 1,200 feet of a navigable water or a trout stream described in sub. (1) (a) 3., 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-ASA1,12,6 2. Subdivision 1. does not apply to a proposed high capacity well that is located in a groundwater protection area within 1,200 feet of a navigable water or a trout stream described in sub. (1) (a) 3. 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-ASA1,16 Section 16. 281.34 (5) (b) 3. of the statutes is created to read:

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.