1995 Wisconsin Act 227

227,366 Section 366 . 110.20 (13) (c) 2. of the statutes is amended to read:

110.20 (13) (c) 2. Costs necessary to repair or replace any emissions control system or mechanism which has been removed, dismantled or rendered inoperative in violation of s. 144.42 285.30 (6) or rules promulgated under that section.

227,367 Section 367 . Chapter 144 (title) of the statutes is repealed.

227,368 Section 368 . Subchapter I (title) of chapter 144 [precedes 144.01] of the statutes is repealed.

227,369 Section 369 . 144.01 of the statutes, as affected by 1995 Wisconsin Act 27, is repealed.

227,370 Section 370 . Subchapter II (title) of chapter 144 [precedes 144.02] of the statutes is repealed.

227,371 Section 371 . 144.02 (title) of the statutes is repealed.

227,372 Section 372 . 144.02 of the statutes is renumbered 281.13 (1), and 281.13 (1) (b), as renumbered, is amended to read:

281.13 (1) (b) The department is hereby empowered and instructed to make the necessary rules and regulations, in conjunction with the U.S. geological department, to carry this section subsection into effect.

227,373 Section 373 . 144.025 (title) of the statutes is repealed.

227,374 Section 374 . 144.025 (1) of the statutes is renumbered 281.11 and amended to read:

281.11 Statement of policy and purpose. The department of natural resources shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private. Continued pollution of the waters of the state has aroused widespread public concern. It endangers public health and threatens the general welfare. A comprehensive action program directed at all present and potential sources of water pollution whether home, farm, recreational, municipal, industrial or commercial is needed to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial, agricultural and other uses of water. The purpose of this section subchapter is to grant necessary powers and to organize a comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private. To the end that these vital purposes may be accomplished, this section subchapter and all rules and orders promulgated under this section subchapter shall be liberally construed in favor of the policy objectives set forth in this section subchapter. In order to achieve the policy objectives of this section subchapter, it is the express policy of the state to mobilize governmental effort and resources at all levels, state, federal and local, allocating such effort and resources to accomplish the greatest result for the people of the state as a whole. Because of the importance of Lakes Superior and Michigan and Green Bay as vast water resource reservoirs, water quality standards for those rivers emptying into Lakes Superior and Michigan and Green Bay shall be as high as is practicable.

Note: In the current statutes, this statement of policy and purpose applies to s. 144.025. Current s. 144.025 contains a variety of water quality‐related powers and duties of the DNR. This bill makes s. 144.025 a separate subchapter of the statutes and reorganizes it so that similar powers and duties of the DNR are grouped together.

This bill also includes in the new water quality subchapter several sections of the statutes that are not a part of current s. 144.025. These are s. 144.02, sanitary survey [renumbered s. 281.13 (1)], s. 144.14, nondegradable detergents prohibited [renumbered s. 281.17 (6)] and s. 144.15, mercury discharge [renumbered s. 281.17 (7)]. The special committee recognizes that one effect of including these 3 provisions is to expand the scope of any references to new subch. II of ch. 281. However, these 3 provisions are so similar in subject matter to the provisions in current s. 144.025 that the reorganization will cause no substantive change in the effect of most references to new subch. II of ch. 281.

In one instance [see s. 144.03, as renumbered and amended], the cross-reference establishes duties of industrial establishment owners based on regulation under current s. 144.025 (2). The new cross-reference excludes the provisions related to nondegradable detergents and mercury discharge, because including those facilities would clearly expand the scope of the cross-reference.

227,375 Section 375 . 144.025 (2) (title) of the statutes is repealed.

227,376 Section 376 . 144.025 (2) (a) of the statutes is renumbered 281.12 (1).

227,377 Section 377 . 144.025 (2) (b) of the statutes is renumbered 281.15, and 281.15 (2) (e) and (3) to (5), as renumbered, are amended to read:

281.15 (2) (e) Develop a technical support document which identifies the scientific data utilized, the margin of safety applied and any facts and interpretations of those data applied in deriving the water quality criteria, including the persistence, degradability and nature and effects of each substance on the designated uses, and which provides a summary of the information considered under this paragraph section.

(3) Subdivision 2. Subsection (2) does not apply to rules promulgated under this paragraph section by the department for any substance before November 10, 1987.

(4) By April 1, 1989, the department shall review, in accordance with subd. 2. sub. (2), and as necessary revise all water quality criteria, except those for dissolved oxygen, temperature, pH and ammonia, adopted under this paragraph section before November 10, 1987.

(5) The department shall comply with this paragraph section with respect to all water quality criteria adopted or revised after November 10, 1987.

227,378 Section 378 . 144.025 (2) (c) of the statutes is renumbered 281.19 (1).

227,379 Section 379 . 144.025 (2) (d) of the statutes is renumbered 281.19 (2) and amended to read:

281.19 (2) (a) The department may issue special orders directing particular owners to secure such operating results toward the control of pollution of the waters of the state as the department prescribes, within a specified time. Pending efforts to comply with any order, the department may permit continuance of operations on such conditions as it prescribes. If any owner cannot comply with an order within the time specified, the owner may, before the date set in the order, petition the department to modify the order. The department may modify the order, specifying in writing the reasons therefor. If any order is not complied with within the time period specified, the department shall immediately notify the attorney general of this fact. Within 30 days thereafter, the attorney general shall forthwith commence an action under s. 144.98 299.95.

(b) The department may issue temporary emergency orders without prior hearing when the department determines that the protection of the public health necessitates such immediate action. Such emergency orders shall take effect at such time as the department determines. As soon as is practicable, the department shall hold a public hearing after which it may modify or rescind the temporary emergency order or issue a special order under subd. 1 par. (a).

227,380 Section 380 . 144.025 (2) (e) of the statutes is renumbered 281.17 (1) and amended to read:

281.17 (1) No wells shall be constructed, installed or operated to withdraw water from underground sources for any purpose where the capacity and rate of withdrawal of all wells on one property is in excess of 100,000 gallons a day without first obtaining the approval of the department. If s. 144.026 281.35 applies to the proposed construction, the application shall comply with s. 144.026 281.35 (5) (a). If the department finds that the proposed withdrawal will adversely affect or reduce the availability of water to any public utility in furnishing water to or for the public or does not meet the grounds for approval specified under s. 144.026 281.35 (5) (d), if applicable, it shall either withhold its approval or grant a limited approval under which it imposes such conditions as to location, depth, pumping capacity, rate of flow and ultimate use so that the water supply of any public utility engaged in furnishing water to or for the public will not be impaired and the withdrawal will conform to the requirements of s. 144.026 281.35, if applicable. The department shall require each person issued an approval under this paragraph subsection to report that person's volume and rate of withdrawal, as defined under s. 144.026 281.35 (1) (m), and that person's volume and rate of water loss, as defined under s. 144.026 281.35 (1) (L), if any, in the form and at the times specified by the department. The department may issue general or special orders it considers necessary to ensure prompt and effective administration of this paragraph subsection.

227,381 Section 381 . 144.025 (2) (f) of the statutes is renumbered 281.19 (3).

227,382 Section 382 . 144.025 (2) (g) of the statutes is renumbered 281.13 (3).

227,383 Section 383 . 144.025 (2) (h) of the statutes is renumbered 281.12 (3).

227,384 Section 384. 144.025 (2) (i) of the statutes is renumbered 281.17 (2).

227,385 Section 385 . 144.025 (2) (j) of the statutes is renumbered 281.12 (5).

227,386 Section 386 . 144.025 (2) (k) of the statutes is renumbered 281.19 (4).

227,387 Section 387 . 144.025 (2) (L) of the statutes is renumbered 281.17 (3) and amended to read:

281.17 (3) The department shall promulgate rules establishing an examining program for the certification of operators of waterworks, wastewater treatment plants and septage servicing vehicles operated under a license issued under s. 146.20 281.48 (3), setting such standards as the department finds necessary to accomplish the purposes of this chapter and chs. 285 and 289 to 299, including requirements for continuing education. The department may charge applicants a fee for certification. All moneys collected under this paragraph subsection for the certification of operators of waterworks, wastewater treatment plants and septage servicing vehicles shall be credited to the appropriation under s. 20.370 (2) (bL). No person may operate a waterworks, wastewater treatment plant or septage servicing vehicle without a valid certificate issued under this paragraph subsection. The department may suspend or revoke a certificate issued under this paragraph subsection for a violation of any statute or rule relating to the operation of a waterworks or wastewater treatment plant or to septage servicing, for failure to fulfill the continuing education requirements or as provided under s. 145.245 (3). The owner of any wastewater treatment plant shall be, or shall employ, an operator certified under this paragraph subsection who shall be responsible for plant operations, unless the department by rule provides otherwise. In this paragraph subsection, “wastewater treatment plant" means a system or plant used to treat industrial wastewater, domestic wastewater or any combination of industrial wastewater and domestic wastewater.

227,388 Section 388 . 144.025 (2) (m) of the statutes is renumbered 281.19 (6).

227,389 Section 389 . 144.025 (2) (q) of the statutes is renumbered 281.17 (5).

227,390 Section 390 . 144.025 (2) (r) of the statutes is renumbered 281.19 (5) and amended to read:

281.19 (5) If the department finds that a system or plant tends to create a nuisance or menace to health or comfort, it shall order the owner or the person in charge to secure such operating results as the department prescribes, within a specified time. If the order is not complied with, the department may order designated changes in operation, and if necessary, alterations or extension to the system or plant, or a new system or plant. If the department finds that the absence of a municipal system or plant tends to create a nuisance or menace to health or comfort, it may order the city, village, town or town sanitary district embracing the area where such conditions exist to prepare and file complete plans of a corrective system as provided by s. 144.04 281.41, and to construct such system within a specified time.

227,391 Section 391 . 144.025 (2) (s) of the statutes is renumbered 281.19 (7) and amended to read:

281.19 (7) In cases of noncompliance with any order issued under par. (d), (r) sub. (2) or (5) or (u) s. 281.20 (1), the department may take the action directed by the order, and collect the costs thereof from the owner to whom the order was directed. The department shall have all the necessary powers needed to carry out this paragraph subsection including powers granted municipalities under ss. 66.076 and 66.20 to 66.26. It shall also be eligible for financial assistance under ss. 144.21, 144.24, 144.241 281.55, 281.57, 281.58 and 144.2415 281.59.

227,392 Section 392 . 144.025 (2) (t) of the statutes is renumbered 281.17 (8).

227,393 Section 393 . 144.025 (2) (u) of the statutes is renumbered 281.20 (1) and amended to read:

281.20 (1) Under the procedure specified in par. (v) sub. (3), the department may do any of the following:

(a) Order or cause the abatement of pollution which the department, in consultation with the department of agriculture, trade and consumer protection if the source is agricultural, has determined to be significant and caused by a nonpoint source, as defined in s. 144.25 281.65 (2) (b), including pollution which causes the violation of a water quality standard, pollution which significantly impairs aquatic habitat or organisms, pollution which restricts navigation due to sedimentation, pollution which is deleterious to human health or pollution which otherwise significantly impairs water quality, except that under this subdivision paragraph the department may not order or cause the abatement of any pollution caused primarily by animal waste or of pollution from an agricultural source that is located in a priority watershed or priority lake area unless the source is designated as a critical site in a priority watershed or priority lake plan under s. 144.25 281.65 (5m) or a modification to such a plan under s. 144.25 281.65 (5s).

(b) If it provided notice under s. 144.25 281.65 (5w), order the owner or operator of a source that is designated as a critical site in a priority watershed or priority lake plan under s. 144.25 281.65 (5m) or in a modification to such a plan under s. 144.25 281.65 (5s) to implement best management practices, but not with respect to any pollution caused primarily by animal waste.

227,394 Section 394 . 144.025 (2) (v) of the statutes is renumbered 281.20 (3), and 281.20 (3) (a) to (c) and (d) (intro.) and 4., as renumbered, are amended to read:

281.20 (3) (a) 1. If the department determines that it is authorized to issue an order under par. (u) 1. sub. (1) (a) to abate pollution caused by a nonpoint source, the department shall send a written notice of intent to issue the order to abate the pollution to the person whom the department determines to be responsible for the nonpoint source.

2. If the department determines under par. (u) 2. sub. (1) (b) that an owner or operator is required to implement best management practices in a priority watershed or priority lake area, the department shall send a written notice of intent to issue an order to implement the designated best management practices to the owner or operator.

3. The notice of intent to issue an order shall describe the department's findings and intent, and shall include a date by which that person is required to abate the pollution or implement the best management practices. That date shall be at least one year after the date of the notice unless the department determines that the pollution is causing or will cause severe water quality degradation that could be mitigated or prevented by abatement action taken in less than one year. In its determination under this paragraph subsection, the department shall consider the nature of the actual or potential damage caused by the pollution and the feasibility of measures to abate that pollution.

(b) If the nonpoint source that is the subject of a notice under subd. 1. par. (a) is agricultural, the department shall send the notice to the land conservation committee created under s. 92.06 of any county in which the source is located. If the notice is issued under subd. 1. b. par. (a) 2., the land conservation committee may disapprove issuance of an order within 60 days after the department issues the notice of intent to issue the order.

(c) If the nonpoint source which is the subject of a notice under subd. 1. par. (a) is agricultural, the department shall send the notice to the department of agriculture, trade and consumer protection. The department of agriculture, trade and consumer protection shall do all of the following:

1. Upon receipt of the notice and in cooperation with the land conservation committee, provide to the person whom the department has determined to be responsible for the nonpoint source under par. (u) 1. sub. (1) (a) a listing of management practices which, if followed, would reduce pollution to an amount determined to be acceptable by the department, in consultation with either the department of agriculture, trade and consumer protection or the land conservation committee. The list shall, with reasonable limits, set forth all of the options which are available to the person to reduce pollution to that amount of pollution. The department of agriculture, trade and consumer protection shall provide to each person receiving a notice an explanation of financial aids and technical assistance which may be available to the person for the abatement of pollution or the implementation of best management practices from the department of agriculture, trade and consumer protection under s. 92.14 and from other sources.

2. Issue a report to the department within one year after the date of the notice describing the actions taken by the person receiving the notice and a recommendation as to whether the department should issue an order to abate the pollution or implement the best management practices. Notwithstanding subd. 1. par. (a), the department may not issue an order until the department receives that report unless the department determines that the pollution is causing or will cause severe water quality degradation which could be mitigated or prevented by abatement action taken in less than one year and unless the department of agriculture, trade and consumer protection files a concurring determination in writing with the department within 30 days after receiving notice of the department's determination.

(d) (intro.) The department may issue a temporary emergency order prior to issuing a notice under subd. 1. par. (a) if all of the following apply:

4. As soon as practicable after issuing the temporary emergency order, the department issues a written notice of intent to issue an order under subds. 1. and 2. pars. (a) and (b) or rescinds the temporary emergency order.

227,395 Section 395 . 144.025 (2) (w) of the statutes is renumbered 281.20 (5) and amended to read:

281.20 (5) (a) Except as provided in subd. 3. par. (c), if the department issues a notice under par. (v) 1. b. sub. (3) (a) 2., the source is agricultural and no land conservation committee disapproves the proposed order under par. (v) 1m. sub. (3) (b), the owner or operator of the critical site may obtain a review of the proposed order by filing a written request with the land and water conservation board within 60 days after the expiration of the time limit under par. (v) 1m. sub. (3) (b). If the land conservation committee of any county in which a source is located disapproves of a proposed order under par. (v) 1m. sub. (3) (b), the department may obtain a review of that disapproval by filing a written request with the land and water conservation board within 60 days after receiving the decision of the land conservation committee.

(b) The owner or operator of a critical site may request a contested case hearing under ch. 227 to review the decision of the land and water conservation board under subd. 1. par. (a) by filing a written request with the department within 60 days after receiving an adverse decision of the land and water conservation board.

(c) The owner or operator of a critical site who obtains review of the critical site determination under any or all of the review procedures in s. 144.25 281.65 (7) may not obtain review of a proposed order under this paragraph subsection.

227,396 Section 396 . 144.025 (6) of the statutes is renumbered 281.91.

227,397 Section 397 . 144.025 (7) of the statutes is renumbered 281.19 (8), and 281.19 (8) (intro.), as renumbered, is amended to read:

281.19 (8) (intro.) Any owner or other person in interest may secure a review of the necessity for and reasonableness of any order of the department under this section or s. 281.20 in the following manner:

227,398 Section 398 . 144.0252 of the statutes, as created by 1995 Wisconsin Act 27, is renumbered 281.22, and 281.22 (1), as renumbered, is amended to read:

281.22 (1) Amount of fees. The department shall charge a fee for determining whether a project complies with the standards of water quality promulgated by rule under s. 144.025 (2) (b) 281.15 that are applicable to wetlands. The fee for each project shall be $100.

227,399 Section 399 . 144.0255 of the statutes is renumbered 281.53, and 281.53 (1), as renumbered, is amended to read:

281.53 (1) The department may award a municipal clean drinking water grant, from the appropriation under s. 20.866 (2) (tb), to a municipality for capital costs to achieve compliance with standards for contaminants established by the department by rule under the safe drinking water program under s. 144.025 (2) (t) 281.17 (8), if the municipality is not in compliance with those standards on or after April 1, 1990, if the municipality incurs the capital costs after January 1, 1989, and if the violation of the standards for contaminants occurs in a public water supply owned by the municipality.

227,400 Section 400 . 144.026 of the statutes is renumbered 281.35, and 281.35 (1) (a), (b) 2. and (i), (3) (b) 3., (4) (a) 2. and 3. and (b) (intro.) and (5) (a) 13. and (d) 2., as renumbered, are amended to read:

281.35 (1) (a) “Approval" means a permit issued under s. 30.18 or an approval under s. 144.025 (2) (e) 281.17 (1) or 144.04 281.41.

(b) 2. If subd. 1. does not apply, the highest average daily water loss over any 30-day period that is reported to the department or the public service commission under sub. (3) (c) or s. 30.18 (6) (c), 144.025 (2) (e), 144.04 or 196.98, 281.17 (1) or 281.41.

(i) “Person" has the meaning given in s. 144.01 (9m) 281.01 (9) and also includes special purpose districts established under s. 66.072, other states and provinces and political subdivisions of other states and provinces.

(3) (b) 3. A person holding a permit under s. 147.02 283.31 or the federal water pollution control act, as amended, 33 USC 1251 to 1376, for whom the department has established a water loss coefficient, based on flow diagrams and other water use information provided by the permittee, that the department uses to calculate the permittee's water loss.

(4) (a) 2. A person who is operating a well under an approval issued under s. 144.025 (2) (e) 281.17 (1) or who is required to obtain an approval under that paragraph before constructing or installing a well.

3. An owner who is operating a system or plant under plans approved under s. 144.04 281.41 or who is required to submit plans and obtain an approval under that section before construction or extension of a proposed system or plant.

(b) (intro.) Before any person specified in par. (a) may begin a new withdrawal or increase the amount of an existing withdrawal, the person shall apply to the department under s. 30.18, 144.025 (2) (e) 281.17 (1) or 144.04 281.41 for a new approval or a modification of its existing approval if either of the following conditions applies:

(5) (a) 13. A statement as to whether the proposed withdrawal complies with all applicable plans for the use, management and protection of the waters of the state and related land resources, including plans developed under ss. 144.025 (2) (a) 281.12 (1) and 147.25 283.83 and the requirements specified in any water quantity resources plan under sub. (8).

(d) 2. That the proposed withdrawal does not conflict with any applicable plan for future uses of the waters of the state, including plans developed under ss. 144.025 (2) (a) 281.12 (1) and 147.25 283.83 and any water quantity resources plan prepared under sub. (8).

227,401 Section 401 . 144.027 of the statutes, as affected by 1993 Wisconsin Act 413 and 1995 Wisconsin Act 27, is renumbered 281.75, and 281.75 (6) (a), (12) (b), (17) (b) and (18), as renumbered, are amended to read:

281.75 (6) (a) Contamination of a private water supply, as defined under sub. (1) (b) 1. or 2., is required to be established by analysis of at least 2 samples of water, taken at least 2 weeks apart, in a manner which assures the validity of the test results. The samples shall be tested by a laboratory certified under s. 144.95 299.11.

(12) (b) If the well is a drilled well, it is constructed by a well driller licensed under ch. 162 280 or, if the well is a sandpoint well, it is constructed by a well driller or pump installer licensed under ch. 162 280.

(17) (b) This section does not apply to contamination which is compensable under subch. II of ch. 107 or s. 144.855 293.65 (4).

(18) Suspension or revocation of licenses. The department may suspend or revoke a license issued under ch. 162 280 if the department finds that the licensee falsified information submitted under this section. The department of commerce may suspend or revoke the license of a plumber licensed under ch. 145 if the department of commerce finds that the plumber falsified information submitted under this section.

227,402 Section 402 . 144.03 (title) of the statutes is renumbered 281.96 (title).

227,403 Section 403 . 144.03 (1) of the statutes is renumbered 281.96 and amended to read:

281.96 Every owner of an industrial establishment shall furnish to the department all information required by it in the discharge of its duties under s. 144.025 (2) subch. II, except s. 281.17 (6) and (7). Any member of the natural resources board or any employe of the department may enter any industrial establishment for the purpose of collecting such information, and no owner of an industrial establishment shall refuse to admit such member or employe. The department shall make such inspections at frequent intervals. The secretary and all members of the board shall have power for all purposes falling within the department's jurisdiction to administer oaths, issue subpoenas, compel the attendance of witnesses and the production of necessary or essential data.

227,404 Section 404 . 144.03 (2) of the statutes is renumbered 293.86 and amended to read:

293.86 (title) Visitorial powers of department. Any duly authorized officer, employe or representative of the department may enter and inspect any property, premises or place on or at which any prospecting or metallic mining operation or facility or nonmetallic mining operation is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and chs. 281, 285, 289 to 292, 295 and 299 and rules adopted pursuant thereto. No person may refuse entry or access to any such authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials, nor may any person obstruct, hamper or interfere with any such inspection. The department shall furnish to the prospector or operator, as indicated in the prospecting or mining permit, or nonmetallic mining site operator a written report setting forth all observations, relevant information and data which relate to compliance status.

Note: This provision is duplicated for purposes of nonmetallic mining in s. 295.17 (2).