Amendment ASA1-AB477

LRBs0302/1

RNK&MCP:cjs

2015 - 2016 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 477

February 5, 2016 - Offered by Representative Krug.

AB477-ASA1,1,9 An Act to renumber and amend 281.34 (4) (a) 1. and 281.34 (7); to amend 281.34 (2), 281.34 (4) (a) (intro.), 281.34 (5) (a), 281.34 (5) (b), 281.34 (5) (c), 281.34 (5) (d) and 281.34 (5m); and to create 281.34 (1) (bm), 281.34 (1) (cm), 281.34 (1) (em), 281.34 (1) (er), 281.34 (1m), 281.34 (2d), 281.34 (2g), 281.34 (4) (a) 1. a. and b., 281.34 (4) (am), 281.34 (4g), 281.34 (5) (b) 3., 281.34 (5) (f), 281.34 (7) (b), 281.34 (7g), 281.34 (7m) and 281.34 (11) of the statutes; relating to: approvals for high capacity wells, designation of sensitive resource areas, liability to residential well owners, providing exemptions from emergency rule procedures, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Overview

This substitute amendment makes various changes to the laws regulating high capacity wells, which are wells that, together with all other wells on the same property, have the capacity to withdraw more than 100,000 gallons of water per day. Current law requires a person to obtain approval from the Department of Natural Resources before constructing or operating a high capacity well.

This substitute amendment specifies the conditions that DNR may impose or modify in an approval for an existing high capacity well and those that it may impose in an approval for a new high capacity well. The conditions vary depending on certain circumstances such as whether the well will be, or is, located in a sensitive resource area (SRA) designated by the legislature by statute. The substitute amendment establishes a procedure under which an area may be designated as an SRA by statute. The substitute amendment also changes the requirements relating to environmental review of high capacity well approval applications, and requires certain high capacity well owners to compensate certain non-high capacity well owners for negative impacts to their water supply.

Special environmental review

Current law requires DNR to conduct a certain type of environmental review of an application for approval of 1) a high capacity well that is located in an area within 1,200 feet of a trout stream or an exceptional or outstanding resource water, 2) a high capacity well with a high water loss, in which less than 5 percent of the water withdrawn is returned after use to the basin from which it is withdrawn, or 3) a high capacity well that may have a significant environmental impact on a qualifying spring.

This substitute amendment changes the requirement to conduct a special environmental review of an application for a high capacity well that is located within 1,200 feet of a trout stream or an exceptional or outstanding resource water to a requirement to conduct a special environment review of an application for a high capacity well that is located within 1,200 feet of a trout stream or a navigable water.

The substitute amendment also provides that DNR is required to conduct a special environmental review only if the high capacity well is located in an area designated by statute as an SRA. If it is not located in an SRA, DNR may, but is not required to, conduct this special environmental review.

Deadlines

This substitute amendment provides that DNR must approve an application for a high capacity well approval within 65 business days from the date on which the application is filed, if no special environmental review is conducted, and within 130 business days from the date of application if a special environmental review is conducted. If an application has already been submitted to DNR by the effective date of this substitute amendment, these deadlines begin to run on the effective date. If the DNR does not meet these deadlines it must refund the application fee to the applicant.

Rescinding and modifying existing approvals

Current law allows DNR to rescind a high capacity well approval if the well does not conform with standards or conditions applicable to the approval for the well. This substitute amendment provides that DNR may only rescind the approval if the well or the use of the well does not conform with conditions contained in the approval.

Current law also provides that DNR may modify a high capacity well approval if the well does not conform with standards or conditions applicable to the approval. This substitute amendment provides that DNR may only impose new or modified conditions on an existing well if 1) a hearing examiner determines that those conditions are necessary in order to abate an infringement of public rights in navigable waters, 2) the high capacity well is located in an SRA and DNR is authorized by statute to impose those conditions, or 3) the well owner agrees to the imposition of the new or modified condition.

Conditions in new approvals

Under current law, if an application is one for which DNR conducts a special environmental review, or if the application is for approval of a high capacity well that DNR determines may impair a public water supply, DNR may not approve the application unless it includes certain conditions in the approval. The conditions must ensure that, depending on the location of the well, the public water supply is protected, the well does not cause significant environmental impact, or the environmental impact is balanced by the public benefit of the well.

This substitute amendment limits the conditions that DNR may impose in an approval issued for a new high capacity well, other than one located in an SRA. Under the substitute amendment, DNR may impose restrictions on the location, depth, pumping capacity, rate of flow, and ultimate use of a high capacity well. These conditions must be identical to the information provided in the application for the high capacity well approval, unless different conditions are necessary to ensure that the high capacity well will not significantly impair groundwater quality because of existing contaminants in the area or, if the approval application is one for which DNR conducts a special environmental review, to ensure that the public water supply is protected, the well does not cause significant environmental impact, or the environmental impact is balanced by the public benefit of the well.

Minimum water levels; sensitive resource areas

The substitute amendment requires DNR to promulgate rules establishing a uniform method for determining the minimum rate of flow of a stream and the minimum water level of a lake necessary to prevent 1) endangerment of certain fish and aquatic life, 2) impairment of navigation typically conducted on a stream or lake, 3) deterioration of water quality resulting in a violation of water quality standards, 4) infringement upon a riparian owner's reasonable expectation of access to a lake, and 5) impairment of the use of any existing surface water diversions from a stream or lake.

This substitute amendment also establishes a procedure under which DNR may determine whether a geographic area of the state should be designated as an SRA. The substitute amendment provides that if DNR has information or data that it determines to be credible from a professional geologist, hydrologist, or hydrogeologist showing that cumulative groundwater withdrawals from high capacity wells in an area of this state are collectively causing, or may be likely to collectively cause a reduction of a stream's or lake's rate of flow or water level below its minimum level, DNR must request approval from the Joint Committee on Finance to study and model the area. DNR must also request approval from JCF to study certain smaller subwatershed areas if DNR receives, in a calendar year, applications for high capacity well approvals within that area that would have a cumulative withdrawal capacity of more than 15 million gallons per day. The substitute amendment also requires DNR to study certain parts of Waushara, Wood, and Marquette counties without requesting approval from JCF.

The substitute amendment provides that if JCF approves DNR's request, or allows DNR to proceed without a JCF meeting to approve the request, DNR must conduct a study of the area for which the request is made. If upon conclusion of the study of an area DNR determines that special measures relating to groundwater withdrawal are necessary in that area to prevent or remedy a reduction of a stream's or lake's rate of flow or water level below its minimum level, DNR must issue a decision on whether it recommends designation of the area as an SRA. If DNR issues a decision recommending designation of the area as an SRA, DNR's decision must contain certain information including a description of the geographical boundaries of the area and a description of the extent to which DNR has determined that cumulative groundwater withdrawals in the area cause, or are expected to cause, a reduction of a stream's or lake's rate of flow or water level below its minimum level. The decision must also include any proposed measures that DNR recommends be taken in the area to prevent or remedy a reduction of a stream's or lake's rate of flow or water level below its minimum level. These measures may include proposed regulations such as 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.

The substitute amendment provides that after DNR issues its decision, it must hold a public hearing to solicit comments on its decision. DNR must then prepare, and submit to the legislature, a report on whether the area should be designated as a sensitive resource area. If DNR recommends that the area be designated as an SRA, DNR must prepare an additional report specifying any measures that it recommends be conducted in the area to prevent or remedy a reduction of a stream's or lake's rate of flow or water level below its minimum level.

Under the substitute amendment, an area may be designated as an SRA only by statute. After an area is designated as an SRA by statute, DNR must review the area every ten years and submit a report to the legislature as to whether the boundaries of the SRA and any of the special measures applicable to the SRA that have been adopted by statute should be changed. If an area is designated as an SRA, the substitute amendment requires DNR, in determining whether to approve or deny an application for approval of a high capacity well located in the SRA, to consider the cumulative environmental impacts of that high capacity well together with existing wells.

After DNR requests approval from JCF to study an area for possible designation as an SRA, it may not approve certain applications for new high capacity wells in that area unless DNR determines that the high capacity well will have no hydrologic connection to any existing navigable water, or that it will not cause a significant measurable drawdown of any navigable water. This restriction continues to apply until 1) JCF denies DNR's request to study the area, 2) DNR fails to recommend designation as an SRA within 30 months after requesting to study the area, 3) DNR determines that the area should not be designated as an SRA, 4) the area is not designated as an SRA within 12 months after DNR recommends designation as an SRA, 5) DNR fails to recommend special measures relating to groundwater withdrawal that should be taken in an area within 12 months after recommending that the area be designated as an SRA, 6) DNR determines that no special measures relating to groundwater withdrawal should be taken in the area, 7) the legislature does not adopt special measures relating to groundwater withdrawal in an area within 12 months after DNR recommends special measures for that area, or 8) the legislature adopts special measures relating to groundwater withdrawal within the designated SRA.

Modification of previously issued approvals

This substitute amendment also allows certain owners of existing high capacity wells to obtain modification of a previously issued approval. Under the substitute amendment, if DNR issued an approval for a high capacity well on or after July 6, 2011, and before the effective date of the substitute amendment, DNR must, upon the well owner's request, review the conditions in that approval. If the conditions are not consistent with DNR's authority under this substitute amendment, DNR must remove or revise those conditions consistent with that authority.

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: