NR 851.10 Purpose. The purpose of this chapter is to establish an application process, requirements, and department review procedures related to diversions and intrabasin transfers of Great Lakes’ water, in compliance with ss. 281.343 and 281.346, Stats., and consistent with the requirements of the Great Lakes – St. Lawrence River Basin Water Resources Compact. NR 851.11 Definitions. In this chapter:
(1)
“Applicant” means a person who submits an application for a diversion approval or intrabasin transfer approval.
(2)
“Community within a straddling county” has the meaning specified under s. 281.346 (1)), Stats. Note: Section 281.346 (1) (d), Stats., reads as follows: “Community within a straddling county” means any city, village, or town that is not a straddling community and that is located outside the Great Lakes basin but wholly within a county that lies partly within the Great Lakes basin. (3) “Consumptive use” has the meaning specified under s. 281.346 (1) (e), Stats. Note: Section 281.346 (1) (e), Stats., reads as follows: “Consumptive use” means a use of water that results in the loss of or failure to return some or all of the water to the basin from which the water is withdrawn due to evaporation, incorporation into products, or other processes. (3) “Department” means the department of natural resources.
(4) “Diversion” has the meaning specified under s. 281.346 (1) (h), Stats. Note: s. 281.346 (1) (h), Stats., reads as follows: “Diversion” means a transfer of water from the Great Lakes basin into a watershed outside the Great Lakes basin, or from the watershed of one of the Great Lakes into that of another, by any means of transfer, including a pipeline, canal, tunnel, aqueduct, channel, modification of the direction of a water course, tanker ship, tanker truck, or rail tanker except that ”diversion” does not include any of the following: 1. The transfer of a product produced in the Great Lakes basin or in the watershed of one of the Great Lakes, using waters of the Great Lakes basin, out of the Great Lakes basin or out of the watershed.
2. The transmission of water within a line that extends outside of the Great Lakes basin as it conveys water from one point to another within the Great Lakes basin if no water is used outside of the Great Lakes basin.
3. The transfer of bottled water from the Great Lakes basin in containers of 5.7 gallons or less.
(5) “Great Lakes basin” means the watershed of the Great Lakes and the St. Lawrence River upstream from Trois-Rivieres, Quebec, within the jurisdiction of the parties. The boundary of the Great Lakes basin is derived from the Subbasin (8-digit) 4th level hydrologic units from the digital Watershed Boundary Dataset for the State of Wisconsin, consisting of geo-referenced digital data and associated attributes created in accordance with the "FGDC Proposal, Version 1.0 - Federal Standards for Delineation of Hydrologic Unit Boundaries 3/01/02.”
(6) “Great Lakes council” has the meaning specified under s. 281.346 (1) (jj), Stats. Note: Section 281.346 (1) (jj), Stats., reads as follows: “Great Lakes council” means the Great Lakes-St. Lawrence River Basin Water Resources Council, created under s. 281.343 (2) (a). Note: The Great Lakes council is comprised of the Great Lake Governors, or their designees, who consult and coordinate with the Premiers of Ontario, Quebec, and the Great-Lakes St. Lawrence River Water Resources Regional Body to protect the Great Lakes and St. Lawrence River.
(7) “Intrabasin transfer” has the meaning specified under s. 281.346 (1) (jm), Stats. Note: Section 281.346 (1) (jm), Stats., reads as follows: “Intrabasin transfer” means the transfer of water from the watershed of one of the Great Lakes into the watershed of another of the Great Lakes. (8) “Person” has the meaning specified under s. 281.346 (1) (nm), Stats. Note: Section 281.346 (1) (nm), Stats., reads as follows: Notwithstanding s. 281.01 (9), “Person” means an individual or other entity, including a government or nongovernmental organization, including any scientific, professional, business, nonprofit, or public interest organization or association that is neither affiliated with nor under the direction of a government. (9) “Preexisting diversion” means a diversion of water from the Great Lakes basin into a watershed outside of the Great Lakes basin that existed prior to the ratification of the Great Lakes Compact on December 8, 2008, and received an approval from the department under s. 281.344 (3m) or (4), Stats. (10) “Proposal” means a request for a new or increased diversion of Great Lakes water.
(11) “Public water supply” has the meaning specified under s. 281.346 (1) (pm), Stats. Note: Section 281.346 (1) (pm), Stats., reads as follows: “Public water supply means water distributed to the public through a physically connected system of treatment, storage, and distribution facilities that serve a group of largely residential customers and that may also serve industrial, commercial, and other institutional customers. (12) “Public water supply system” means water treated for human consumption distributed to the public through a physically connected system of treatment, storage, and distribution facilities that is all of the following:
(a) Distributed to the public serving a group of largely residential customers and that may also serve commercial, industrial, or public authority customers, and consecutive water systems.
(b) Owned by a city, village, county, town, town sanitary district, utility district, public inland lake and rehabilitation district, municipal water district, or a privately owned water utility serving any of these entities.
(13) “Reasonable water supply alternative” means a water alternative that, when compared to the proposed diversion, is similar in cost, is similarly environmentally sustainable, is similarly protective of public health, and does not have greater adverse environmental impacts.
(14) “Regional body” has the meaning specified under s. 281.346 (1) (q), Stats. Note: Section 281.346 (1) (q), Stats., reads as follows “Regional body” means the body consisting of the governors of the parties and the premiers of Ontario and Quebec, Canada, or their designees as established by the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement. (15) “Sewer service area” has the meaning specified under s. NR 110.03 (29t). Note: Section NR 110.03 (29t) reads as follows: NR 110.03 (29t) “Sewer service area” means that area served or anticipated to be served by a sewage collection system. (16) “Source watershed” has the meaning specified under s. 281.346 (1) (r), Stats. Note: Section 281.346 (1) (r), Stats., reads as follows: “Source watershed" means the watershed from which a withdrawal originates. If water is withdrawn directly from a Great Lake or from the St. Lawrence River, then the source watershed is the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively. If water is withdrawn from the watershed of a stream that is a direct tributary to a Great Lake or a direct tributary to the St. Lawrence River, then the source watershed is the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively. (17) “Straddling community” has the meaning specified under s. 281.346 (1) (t), Stats. Note: Section 281.346 (1) (t), Stats., reads as follows: “Straddling community” means any city, village, or town that, based on its boundary existing as of the compact’s effective date [December 8, 2008], is partly within the Great Lakes basin or partly within the watersheds of 2 of the Great Lakes and that is wholly within any county that lies partly or completely within the Great Lakes basin. (18) (a) “Straddling county” has the meaning specified under s. 281.346 (1) (tm), Stats. (b) A county’s boundaries as of December 13, 2005, shall be used to determine whether the county.
Note: Section 281.346 (1) (tm), Stats., reads as follows “Straddling county” means a county that lies partly within the Great Lakes basin. (19) “Technical review” has the meaning specified under s. 281.346 (1) (u), Stats. Note: Section 281.346 (1) (u), Stats., reads as follows: “Technical review” means a thorough analysis and evaluation conducted to determine whether a proposal that is subject to regional review under this section meets the criteria for approval under [s. 281.346 (4), (5), or (6), Stats]. (20) “Water loss” has the meaning specified under s. 281.346 (1) (wm), Stats. Note: Section 281.346 (1) (wm), Stats., reads as follows: “Water loss” means the amount of water that is withheld from or not returned to the basin from which it is withdrawn as a result of a diversion or consumptive use or both. (21) (a) “Water supply service area” means an area in which the public water supply system provides water or may provide water to the public during the 20-year planning period covered by the water supply service area plan.
(22) “Water supply service area plan” means a document developed in compliance with s. 281.348, Stats., and ch. NR 854. (23) “Water supply system” has the meaning specified under s. 281.346 (1) (wp), Stats. Note: Section 281.346 (1) (wp), Stats., reads as follows: “Water supply system,” when not preceded by “public,” means one of the following: 1. Except as provided under subd. 2., the equipment handling water from the point of intake of the water to the first point at which the water is used.
2. For a system for providing a public water supply, the equipment from the point of intake of the water to the first point at which the water is distributed.”
(24) “Waters of the state” has the meaning specified under s. 281.01 (18), Stats. Note: Section 281.01 (18), Stats., reads as follows: “Waters of the state” includes those portions of Lake Michigan and Lake Superior within the boundaries of this state, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems and other surface water or groundwater, natural or artificial, public or private, within this state or its jurisdiction. (25) “Withdraw” has the meaning specified under s. 281.346 (1) (y), Stats. Note: Section 281.346 (1) (y), Stats., reads as follows: “Withdraw” means to take water from surface water or groundwater. (26) “Withdrawal” has the meaning specified under s. 281.346 (1) (z), Stats. Note: Section 281.346 (1) (z), Stats., reads as follows: “Withdrawal” means the taking of water from surface water or groundwater, including the taking of surface water or groundwater for the purpose of bottling the water. NR 851.12 Prohibitions. No person may begin a new diversion or increase the amount of a diversion or preexisting diversion over the amount specified in an approval, except as authorized under s. 281.346 (4) (c), (d), or (e), Stats., and this chapter. NR 851.13 Responsibility of owners or operators. (1) The person who owns or operates the water supply system is responsible for obtaining, amending, terminating, and complying with the terms and conditions within a preexisting diversion approval, diversion approval, or intrabasin transfer approval.
(2) The department shall issue a diversion approval or intrabasin transfer only to the person who owns or operates the water supply system.
(3) Operators of 2 or more water supply systems may submit a joint application under subch. II, III, or IV.
NR 851.14 Fees. (1) An applicant shall pay to the department a review fee of $5,000 at the time the applicant submits the application.
(2) The department may not review an application under this chapter until the applicant submits the review fee.
(3) If the application requires review by the Great Lakes council or regional body, the applicant shall pay to the department an amount equal to any fees imposed on the state by the Great Lakes council or regional body.
NR 851.15 Enforcement. (1) Violations of this chapter may be prosecuted under ch. 281, Stats. (2) Any violation of this chapter shall be treated as a violation of the statutes they interpret or under which they are promulgated.
(3) A person violating this chapter may be subject to penalties specified under s. 281.346 (14), Stats., including all of the following: 1. Forfeitures
2. Costs of investigation and prosecution
3. Abatement of nuisance
4. Restoration of a natural resource
5. Orders that the person take or refrain from taking any action necessary to eliminate or minimize any environmental damage.
(4) Failure to comply with the conditions of an approval issued under this chapter may result in termination of the approval.
Subchapter II
Straddling Community Diversions
NR 851.20 Applicability. This subchapter applies to any person proposing a new or increased straddling community diversion from the Lake Michigan basin or Lake Superior basin to the Mississippi River basin. No person may begin a new or increased straddling community diversion until the person applies for and obtains approval from the department.
NR 851.21 Straddling community diversion application. (1) A person seeking to begin a new or increased straddling community diversion shall contact the department prior to applying for a diversion.
(2) A person seeking to begin a new or increased straddling community diversion shall submit an application to the department, including all of the following information:
(a) The name, mailing address, telephone number, and email address of the applicant, and the primary point of contact, if it differs from the applicant.
(b) The name, mailing address, telephone number, and email address of any person, other than the applicant, that is a participant or otherwise involved in implementing any component of the diversion, including withdrawals of water and returning the water to the Great Lakes basin. The person shall provide evidence in the form of a letter or resolution that the person supports the proposal, has the capacity to withdraw, or return the water for the applicant, and is willing to negotiate a contract with the applicant.
(c) Documentation that the proposed diversion will be used solely for public water supply purposes.
(d) Information on valid contracts and border agreements related to water supply or wastewater, if applicable.
(e) The source watershed and the waterbody from which the water will be diverted. Specify if the source is surface water, including the name of the waterbody, or groundwater including the aquifer name.
(f) The maximum volume of the proposed diversion, projected over the next 20 years. The volume shall be expressed in millions of gallons per day, averaged over each calendar year.
(g) The volume of water of the proposed diversion for the projected peak 30-day period, and projected peak 90-day period, during a calendar year.
(h) The estimated consumptive use associated with the proposal, in any 90-day period.
(i) Documentation that the proposed diversion quantity is reasonable for the purpose for which the diversion is proposed.
(j) A statement of whether the proposed diversion will be continuous, temporary, or seasonal.
