Amendment SSA3-SB239

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2015 - 2016 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 3, TO SENATE BILL 239

March 15, 2016 - Offered by Senators Miller, Vinehout, Lassa, Carpenter, Shilling, Risser, Erpenbach, Harris Dodd, Ringhand, Wirch, Hansen and Bewley.

SB239-SSA3,2,2 An Act to repeal 281.34 (1) (f) and 281.34 (9); to renumber 160.50 (2); to renumber and amend 281.34 (5m) and 281.34 (7); to amend 20.370 (6) (eg), 281.34 (4) (a) 3., 281.34 (5) (a), 281.34 (5) (b) 1. and 2., 281.34 (5) (c), 281.34 (5) (d), 281.34 (7) (title), 281.344 (4s) (dm), 281.344 (4s) (dm), 281.346 (4s) (dm), 281.346 (4s) (dm), 281.346 (12) (a), 281.346 (12) (b), 281.348 (3) (cm) and 281.348 (3) (cm); and to create 160.50 (2) (b), 281.34 (1) (er), 281.34 (2s), 281.34 (5) (ds), 281.34 (5) (e) 3., 281.34 (7) (a), 281.34 (7) (b) 1. to 5., 281.34 (7) (c), 281.341 and 281.346 (8) (cm) of the statutes; relating to: groundwater management, approval of high capacity wells, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Groundwater management areas

Designation

This substitute amendment establishes standards and a process for designating areas in this state as groundwater management areas. The standards vary depending on whether an area has a confined aquifer or an unconfined aquifer. An aquifer is a water-bearing geologic formation. A confined aquifer has above it a layer (of rock, for example) through which water does not pass easily. An unconfined aquifer does not have such a layer above it.

The standards for designating an area with a confined aquifer as a groundwater management area are related to effects that groundwater pumping has in reducing the level to which water would rise in an open well or in reducing the water level in wells pumping from the aquifer. The standards for designating an area with an unconfined aquifer as a groundwater management area are related to reductions in stream flows caused by pumping and to declines in water tables.

Current law provides for a Groundwater Coordinating Council (GCC), consisting of the secretaries of agriculture, trade and consumer protection, natural resources, commerce, and transportation, and the president of the University of Wisconsin System, or their designees; the state geologist; and a person to represent the governor. This substitute amendment requires the GCC to appoint a subcommittee on groundwater area review (council subcommittee), consisting of individuals with technical expertise in the area of groundwater science and management.

This substitute amendment requires the council subcommittee to examine areas that may qualify for designation as groundwater management areas and to forward its conclusions to the GCC. The council subcommittee must first consider three specific areas for possible designation as groundwater management areas: one area in and adjacent to Brown County; one area in and adjacent to Waukesha County; and the area known as the central sands region. A person may petition the Department of Natural Resources (DNR) for an area to be designated as a groundwater management area, which the council subcommittee must then consider. If the council subcommittee forwards a conclusion that an area qualifies as a groundwater management area and the GCC agrees with that conclusion, the GCC may recommend that DNR designate the area as a groundwater management area. If DNR receives such a recommendation from the GCC, DNR may, by rule, designate the area as a groundwater management area.

After DNR promulgates a rule designating an area as a groundwater management area, it must establish a date by which it is reasonable to expect that groundwater conditions in the area will improve to the point that the area will no longer qualify as a groundwater management area (a target date), and conditions to balance groundwater consumption and groundwater replenishment so that there are no significant adverse environmental impacts to surface water or groundwater (sustainable hydrologic conditions).

Planning

This substitute amendment requires DNR to develop and adopt a groundwater management plan for the groundwater management area. The groundwater management plan must be designed to protect surface water and groundwater and to ensure that by the target date the area no longer qualifies as a groundwater management area. The groundwater management plan must contain measurable goals, requirements for reporting to DNR, water conservation measures, and any other provision that DNR determines is necessary to meet the sustainable hydrologic conditions.

In preparing the groundwater management plan, DNR must appoint and consult with a technical advisory committee and a citizens advisory committee. The members of the technical advisory committee must have technical expertise in the area of groundwater science and management, and the members of the citizens advisory committee must represent a variety of interested parties in the groundwater management area, including municipal, agricultural, industrial, and commercial water users and conservation groups.

Rescinding designation

After the target date established by DNR for a groundwater management area, the substitute amendment requires the council subcommittee to consider whether the area still qualifies as a groundwater management area. If the council subcommittee concludes that the area no longer qualifies as a groundwater management area, it must forward that conclusion to the GCC. If the GCC agrees that the area no longer qualifies as a groundwater management area, the GCC may recommend that DNR rescind the designation. If the GCC makes that recommendation, DNR may rescind the designation by repealing the rule designating the area as a groundwater management area.

High capacity wells

Environmental review of proposed high capacity wells

Under current law, a person may not construct a high capacity well without an approval from DNR. A high capacity well is a well that, together with all other wells on the same property, has the capacity to withdraw more than 100,000 gallons of water per day.

This substitute amendment requires an applicant for approval of a high capacity well to publish a notice of the application in a newspaper, identifying the owner and the location of the well.

Current law requires DNR to conduct an environmental review of applications for approval of a high capacity well that is located in an area within 1,200 feet of a trout stream or exceptional resource waters (a groundwater protection area); 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; and a high capacity well that may have a significant adverse impact on a qualifying spring.

This substitute amendment eliminates the environmental review requirement relating to springs, and instead requires DNR to conduct an environmental review of an application for approval of a high capacity well that may have a significant adverse impact on waters of the state.

Under current law, if DNR determines, while conducting an environmental review of a proposed well that meets one of the criteria listed above, that an environmental impact report must be conducted for the proposed well, DNR must generally include conditions in the well approval to ensure that it does not cause significant adverse environmental impact. If it is not possible to ensure that, DNR must deny the application. If a proposed well will be used to provide a public water supply and DNR determines that there is no reasonable alternative location for the well, DNR must include in the approval conditions to ensure that the environmental impact of the well is balanced by the public benefit of the well. Examples of such conditions include conditions relating to the location, depth, pumping capacity, rate of flow, and ultimate use of the well.

This substitute amendment includes monitoring as one of the examples of potential conditions that may be included in such an approval. This substitute amendment also provides that, in any high capacity well approval, DNR may require the well owner to implement a monitoring program to evaluate the impacts of the well, and may modify the approval based on the results of that monitoring program.

Current law provides that a high capacity well approval, or application for approval, cannot be challenged based on DNR's lack of consideration of the cumulative impacts of the proposed well and existing wells. This substitute amendment requires DNR, when considering whether a high capacity well may have a significant adverse environmental impact on waters of the state, to consider the cumulative impacts of that high capacity well together with existing withdrawals.

Under current law, a high capacity well approval generally remains in effect indefinitely, unless modified or rescinded by DNR. This substitute amendment provides that an approval issued after the effective date of the substitute amendment may not remain in effect for more than ten years. An approval issued prior to the effective date of the substitute amendment remains in effect for a longer period, depending on how long before the effective date of the substitute amendment it was issued.

High capacity wells in groundwater management areas

Under this substitute amendment, after DNR develops a groundwater management plan for a groundwater management area, DNR may not approve a high capacity well in the groundwater management area unless the high capacity well is consistent with the groundwater management plan.

This substitute amendment also requires DNR, after it develops a groundwater management plan, to review approvals for high capacity wells in the groundwater management area that were issued before the plan went into effect. The substitute amendment authorizes DNR to modify such approvals to ensure that they are consistent with the groundwater management plan.

Fees for certain withdrawals

Current law imposes an annual fee of $125 on a person whose water supply system has the capacity to withdraw an average of 100,000 gallons per day in any 30-day period from the waters of the state. This substitute amendment increases that annual fee to $250.

DNR has also established, by rule, water use fees for users who withdraw more than 50,000,000 gallons per year from the Great Lakes basin. This substitute amendment directs DNR to establish such fees for users who withdraw more than 50,000,000 gallons per year from the waters of the state.

Other provisions

This substitute amendment also requires DNR to include water conservation requirements in the approvals, required under current law, for certain surface water withdrawals, if the withdrawal is in a groundwater management area, and requires those conservation requirements to be consistent with the groundwater management plan for the groundwater management area.

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

SB239-SSA3,1 Section 1. 20.370 (6) (eg) of the statutes is amended to read:

SB239-SSA3,5,5 20.370 (6) (eg) Groundwater mitigation and local assistance. All moneys received under s. 281.34 not appropriated under sub. (4) (cg) or (ch) for mitigation under s. 281.34 (8) (d) and (9) (d) and funding to local governmental units under s. 281.34 (9) (b).

SB239-SSA3,2 Section 2. 160.50 (2) of the statutes is renumbered 160.50 (2) (a).

SB239-SSA3,3 Section 3. 160.50 (2) (b) of the statutes is created to read:

SB239-SSA3,5,11 160.50 (2) (b) The groundwater coordinating council shall create a subcommittee on groundwater area review. The subcommittee shall be composed of individuals with technical expertise in the area of groundwater science and management.

SB239-SSA3,4 Section 4. 281.34 (1) (er) of the statutes is created to read:

SB239-SSA3,6,4 281.34 (1) (er) "Significant adverse environmental impact" means alteration of groundwater levels, groundwater discharge, surface water levels, surface water discharge, groundwater temperature, surface water temperature, groundwater chemistry, surface water chemistry, or other factors to the extent that those alterations cause significant degradation of environmental quality, including biological and ecological aspects of the affected water resource.

SB239-SSA3,5 Section 5. 281.34 (1) (f) of the statutes is repealed.

SB239-SSA3,6 Section 6. 281.34 (2s) of the statutes is created to read:

SB239-SSA3,6,10 281.34 (2s) Public notice. The department shall require an applicant for approval of a high capacity well to provide notice of the application to interested members of the public by publication as a class 1 notice under ch. 985. In the notice, the applicant shall identify the owner and location of the high capacity well.

SB239-SSA3,7 Section 7. 281.34 (4) (a) 3. of the statutes is amended to read:

SB239-SSA3,6,13 281.34 (4) (a) 3. A high capacity well that may have a significant adverse environmental impact on a spring waters of the state.

SB239-SSA3,8 Section 8. 281.34 (5) (a) of the statutes is amended to read:

SB239-SSA3,6,23 281.34 (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 conditions in the approval conditions to ensure that the water supply of the public utility will not be impaired, which may include conditions as to location, depth, pumping capacity, rate of flow, monitoring, and ultimate use, that will ensure that the water supply of the public utility will not be impaired and any other condition the department determines is necessary.

SB239-SSA3,9 Section 9. 281.34 (5) (b) 1. and 2. of the statutes are amended to read:

SB239-SSA3,7,10 281.34 (5) (b) 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 located in a groundwater protection area, the department may not approve the high capacity well unless it is able to include and includes conditions in the approval conditions to ensure that the high capacity well does not cause significant adverse environmental impact, which may include conditions as to location, depth, pumping capacity, rate of flow, monitoring, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact and any other condition the department determines is necessary.

SB239-SSA3,7,20 2. Subdivision 1. does not apply to a proposed high capacity well that is located in a groundwater protection area 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 conditions in the approval conditions to ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety, which may include conditions as to location, depth, pumping capacity, rate of flow, monitoring, and ultimate use, that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety and any other condition the department determines is necessary.

SB239-SSA3,10 Section 10. 281.34 (5) (c) of the statutes is amended to read:

SB239-SSA3,8,6 281.34 (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 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 conditions in the approval conditions to ensure that the high capacity well does not cause significant adverse environmental impact, which may include conditions as to location, depth, pumping capacity, rate of flow, monitoring, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact and any other condition the department determines is necessary.

SB239-SSA3,11 Section 11. 281.34 (5) (d) of the statutes is amended to read:

SB239-SSA3,8,18 281.34 (5) (d) Impact on a spring waters of the state. 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 adverse environmental impact on a spring waters of the state, the department may not approve the high capacity well unless it is able to include and includes conditions in the approval conditions to ensure that the high capacity well does not cause significant adverse environmental impact, which may include conditions as to location, depth, pumping capacity, rate of flow, monitoring, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact and any other condition the department determines is necessary.

SB239-SSA3,9,4 2. Subdivision 1. does not apply to a proposed high capacity well that may have a significant adverse environmental impact on a spring waters of the state 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 conditions in the approval conditions to ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety, which may include conditions as to location, depth, pumping capacity, rate of flow, monitoring, and ultimate use, that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety and any other condition the department determines is necessary.

SB239-SSA3,12 Section 12. 281.34 (5) (ds) of the statutes is created to read:

SB239-SSA3,9,9 281.34 (5) (ds) Groundwater management plan. If a high capacity well is in a groundwater management area designated under s. 281.341 (2) with a groundwater management plan under s. 281.341 (3) in effect, the department may not approve the high capacity well unless it is consistent with that plan.

SB239-SSA3,13 Section 13. 281.34 (5) (e) 3. of the statutes is created to read:

SB239-SSA3,9,15 281.34 (5) (e) 3. The department may include in the approval for a high capacity well conditions requiring the owner to implement a monitoring program to evaluate environmental impacts caused by operation of the high capacity well, and to submit the results of the monitoring program to the department. The department may modify the approval based on the results of the monitoring program.

SB239-SSA3,14 Section 14. 281.34 (5m) of the statutes is renumbered 281.34 (5m) (a) and amended to read:

SB239-SSA3,9,23 281.34 (5m) (a) No person may challenge an approval, or an application for approval, of a When determining whether a high capacity well based on the lack of consideration of or proposed high capacity well may have a significant adverse environmental impact on the waters of the state, the department shall consider the cumulative environmental impacts of that high capacity well together with existing wells withdrawals.

SB239-SSA3,15 Section 15. 281.34 (7) (title) of the statutes is amended to read:

SB239-SSA3,10,2 281.34 (7) (title) Modifying and rescinding Duration, modification, and rescission of approvals for high capacity wells.

SB239-SSA3,16 Section 16. 281.34 (7) of the statutes is renumbered 281.34 (7) (b) (intro.) and amended to read:

SB239-SSA3,10,11 281.34 (7) (b) (intro.) The An approval of a high capacity well issued under this section or under s. 281.17 (1), 2001 stats. prior to the effective date of this paragraph .... [LRB inserts date], remains in effect for the following periods unless the department modifies or rescinds the approval under par. (c) 3. or sub. (5) (e) 3., or because the high capacity well or the use of the high capacity well is not in conformance with standards or conditions applicable to the approval of the high capacity well.:

SB239-SSA3,17 Section 17. 281.34 (7) (a) of the statutes is created to read:

SB239-SSA3,10,18 281.34 (7) (a) An approval of a high capacity well issued under this section on or after the effective date of this paragraph .... [LRB inserts date], may not remain in effect for more than 10 years and may be modified or rescinded under par. (c) 3. or sub. (5) (e) 3., or because the high capacity well or the use of the high capacity well is not in conformance with standards or conditions applicable to the approval of the high capacity well.

SB239-SSA3,18 Section 18. 281.34 (7) (b) 1. to 5. of the statutes are created to read:

SB239-SSA3,10,21 281.34 (7) (b) 1. For an approval of a high capacity well issued before January 1, 1980, 8 years from the effective date of this subdivision .... [LRB inserts date].

SB239-SSA3,10,24 2. For an approval of a high capacity well issued on or after January 1, 1980, and before January 1, 1990, 10 years from the effective date of this subdivision .... [LRB inserts date].

SB239-SSA3,11,3 3. For an approval of a high capacity well issued on or after January 1, 1990, and before January 1, 2000, 12 years from the effective date of this subdivision .... [LRB inserts date].

SB239-SSA3,11,6 4. For an approval of a high capacity well issued on or after January 1, 2000, and before January 1, 2010, 14 years from the effective date of this subdivision .... [LRB inserts date].

SB239-SSA3,11,9 5. For an approval of a high capacity well issued on or after January 1, 2010, and before the effective date of this subdivision .... [LRB inserts date], 16 years from the effective date of this subdivision .... [LRB inserts date].

SB239-SSA3,19 Section 19. 281.34 (7) (c) of the statutes is created to read: