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
1An Act to renumber and amend 281.34 (4) (a) 1. and 281.34 (7);
to amend
2281.34 (2), 281.34 (4) (a) (intro.), 281.34 (5) (a), 281.34 (5) (b), 281.34 (5) (c),
3281.34 (5) (d) and 281.34 (5m); and
to create 281.34 (1) (bm), 281.34 (1) (cm),
4281.34 (1) (em), 281.34 (1) (er), 281.34 (1m), 281.34 (2d), 281.34 (2g), 281.34 (4)
5(a) 1. a. and b., 281.34 (4) (am), 281.34 (4g), 281.34 (5) (b) 3., 281.34 (5) (f), 281.34
6(7) (b), 281.34 (7g), 281.34 (7m) and 281.34 (11) of the statutes;
relating to:
7approvals for high capacity wells, designation of sensitive resource areas,
8liability to residential well owners, providing exemptions from emergency rule
9procedures, 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water withdrawn is returned after use to the basin from which it is withdrawn, or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
1Section
1. 281.34 (1) (bm) of the statutes is created to read:
AB477-ASA1,6,32
281.34
(1) (bm) "Intermittent stream" means a stream that does not have a
3continuous flow every day of every year in which there is average precipitation.
AB477-ASA1,2
4Section
2. 281.34 (1) (cm) of the statutes is created to read:
AB477-ASA1,6,75
281.34
(1) (cm) "Navigable water" means a natural navigable water and does
6not include an artificial water body, as defined under s. 30.19 (1b) (a), or a farm
7drainage ditch, as defined under s. 30.10 (4) (c).
AB477-ASA1,3
8Section
3. 281.34 (1) (em) of the statutes is created to read:
AB477-ASA1,6,109
281.34
(1) (em) "Reconstruct" means to modify original construction including
10deepening, lining, installing or replacing a screen, and underreaming.
AB477-ASA1,4
11Section
4. 281.34 (1) (er) of the statutes is created to read:
AB477-ASA1,6,1312
281.34
(1) (er) "Sensitive resource area" means an area designated as a
13sensitive resource area by statute.
AB477-ASA1,5
14Section
5. 281.34 (1m) of the statutes is created to read:
AB477-ASA1,6,1915
281.34
(1m) Limits on regulatory authority. (a) Notwithstanding ss. 281.11
16and 281.12 (1), the department's duty and authority, including public trust duties or
17rule-making authority, with respect to issuance of high capacity well approvals is
18limited to the duty and authority that is explicitly conferred upon the department
19by this section.
AB477-ASA1,7,2
1(b) Paragraph (a) does not limit the department's authority to regulate water
2withdrawals under ss. 281.346 and 281.35.
AB477-ASA1,6
3Section
6. 281.34 (2) of the statutes is amended to read:
AB477-ASA1,7,164
281.34
(2) Approval required for high capacity wells. An Except as provided
5under sub. (2g), an owner shall apply to the department for approval before
6construction of a high capacity well begins.
No
Except as provided under sub. (2g),
7no person may construct or withdraw water from a high capacity well without the
8approval of the department under this section or under s. 281.17 (1), 2001 stats. An
9owner applying for approval under this subsection shall
specify in the application the
10location, depth, maximum pumping capacity, maximum rate of flow, and ultimate
11use of the proposed high capacity well and shall pay a fee of $500.
The department
12shall issue an approval to construct a high capacity well to any person who applies
13for an approval, pays the required fee, and complies with the notice requirement
14under sub. (2d), if the high capacity well meets the requirements of this section. If
15the department denies an approval under this section, the department shall provide
16the applicant with a written explanation of the reason for the denial.
AB477-ASA1,7
17Section
7. 281.34 (2d) of the statutes is created to read: