AB477: Bill Text

LRB-3664/1

RNK:cjs&wlj

2015 - 2016 LEGISLATURE

2015 Assembly BILL 477

November 4, 2015 - Introduced by Representatives Krug and Kitchens, cosponsored by Senators Cowles, Olsen and Petrowski. Referred to Committee on Environment and Forestry.

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

Analysis by the Legislative Reference Bureau

Overview

This bill 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 (DNR) before constructing or operating a high capacity well. This bill 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 bill establishes a procedure, more fully described below, under which an area may be designated as an SRA by statute. Generally, under the bill, DNR is required to evaluate and model the hydrology of (study) certain lakes, and the areas surrounding those lakes, that are located in Waushara County (specified Waushara County lake areas). Those lakes are Pleasant Lake, Plainfield Lake, Long Lake, and Huron Lake. In addition, if DNR receives certain information showing that cumulative groundwater withdrawals in an area of the state are collectively causing or may be likely to collectively cause certain adverse impacts to streams and lakes, DNR must request approval from the Joint Committee on Finance (JCF) to study that area. If DNR conducts the study, DNR must issue a decision upon conclusion of the study on whether to recommend that the area be designated as an SRA. DNR must hold a public hearing on its decision. Upon conclusion of the hearing and all administrative and judicial reviews, DNR must submit a report to the legislature on whether it recommends that the area be designated as an SRA. If it recommends such a designation, it must prepare and submit an additional report specifying any measures that it recommends be conducted to prevent or remedy certain adverse impacts to streams and lakes in the area.

Under the bill, an area may be designated as an SRA only by statute.

Environmental review

Current law requires DNR to conduct a specific type of environmental review (special 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 an exceptional or outstanding resource water; 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 environmental impact on a qualifying spring.

This bill provides that DNR is required to conduct this special environmental review under these circumstances 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.

The bill also changes the distance threshold that applies to a special environmental review for a high capacity well located near a trout stream or an exceptional or outstanding resource water. Under the bill, that review is required if the well is located within 1600 feet of such a stream or water.

Deadlines

This bill 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. These deadlines do not apply to an application for a high capacity well approval located in an SRA.

Rescinding and modifying existing approvals

This bill changes the statutory language under which DNR may rescind or modify a high capacity well approval. Under current law, DNR may rescind a high capacity well approval if the well does not conform with standards or conditions applicable to the approval for the well. This bill provides that DNR may not rescind the approval unless 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 bill changes current law with respect to the modification of a high capacity well approval by providing that DNR may not impose new or modified conditions on an existing well unless a hearing examiner determines that these conditions are necessary in order to abate an infringement of public rights in navigable waters. The bill provides that if the high capacity well is located in an SRA, DNR may also impose new or modified conditions if DNR is authorized by statute to impose those conditions. The bill also provides that DNR may impose or modify a condition in an existing high capacity well approval if 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.

Generally, this bill provides that DNR may impose conditions in a high capacity well approval only to ensure that the well will not cause a significant adverse environmental impact to a navigable water and to require the owner of the high capacity well to remedy unreasonable harm to another person's well that is not a high capacity well and that was in existence on the date of the application for approval of the new high capacity well. The bill also provides that in reviewing an application for a high capacity well approval, DNR may not impose conditions on any other existing well, regardless of the location of the existing well.

This bill limits the conditions that DNR may impose in any approval issued for a new high capacity well, other than one located in an SRA. Among the conditions that DNR may impose are restrictions on the location, depth, and pumping capacity of the well and conditions consistent with DNR standards for the construction of high capacity wells. The bill provides that DNR may also require monitoring as a condition in an approval for a new high capacity well if monitoring is necessary in order for DNR to ensure that the groundwater withdrawal will not exceed the allowable amount or rate under the laws regulating high capacity well approvals. If DNR requires monitoring, the monitoring condition may only be imposed to allow DNR to assess the water levels of the navigable waters in the area or groundwater quality. If the approval is for a high capacity well located in an SRA, DNR may also impose other conditions in the approval if DNR is authorized to impose those other conditions by statute.

The bill also provides that if the approval application is one for which DNR conducts a special environmental review, or is for a well that DNR determines may impair a public water supply, DNR must also impose conditions for the purposes required in those cases under current law.

Minimum water levels; sensitive resource areas

This bill requires DNR to promulgate rules establishing a method for determining the minimum rate of flow of a stream and the minimum water level of a lake (minimum level) necessary to prevent endangerment of certain fish and aquatic life, impairment of navigation typically conducted on a stream or lake, deterioration of water quality, infringement upon a riparian owner's reasonable expectation of access to a lake, and impairment of any existing surface water diversions from a stream or lake.

This bill also establishes a procedure under which DNR may determine whether a geographic area of the state should be designated as an SRA. The bill provides that if DNR has information or data 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 JCF to study the area. The bill also requires DNR to study specified Waushara County lake areas without requesting approval from JCF.

The bill 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 that area, or of a specified Waushara County lake 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 bill provides that after DNR issues its decision, it must hold a public hearing to solicit comments on its decision. The bill provides that any person may request that the hearing be treated as a contested case hearing and any person may be made a party to the hearing if the person makes a timely request to be made a party. After the exhaustion of the period of time established by law for all administrative reviews and judicial reviews of a final decision in a contested case, DNR must 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.

Modification of previously issued approvals

This bill also allows certain owners of existing high capacity wells to obtain modification of a previously issued approval. Under the bill, if DNR issued an approval for a high capacity well on or after July 6, 2011, and before the effective date of the bill, 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 bill, DNR must remove or revise those conditions consistent with that authority.

Activities exempt from approval

This bill also provides that no additional approval is needed for the owner of an approved high capacity well to repair or maintain the well; to reconstruct the existing high capacity well if the reconstructed well meets certain conditions; or to transfer the approval at the same time as the owner transfers the land on which the approved high capacity well is located. The bill 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. Either 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.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

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

AB477,1 Section 1. 281.34 (1) (a) (intro.) of the statutes is amended to read:

AB477,5,3 281.34 (1) (a) (intro.) "Groundwater protection area" means an area within 1,200 1,600 feet of any of the following:

AB477,2 Section 2. 281.34 (1) (em) of the statutes is created to read:

AB477,6,2 281.34 (1) (em) "Reconstruct" means to modify original construction including deepening, lining, installing or replacing a screen, and underreaming.

AB477,3 Section 3. 281.34 (1) (er) of the statutes is created to read:

AB477,6,5 281.34 (1) (er) "Sensitive resource area" means an area designated as a sensitive resource area by statute.

AB477,4 Section 4. 281.34 (1m) of the statutes is created to read:

AB477,6,11 281.34 (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.

AB477,6,13 (b) Paragraph (a) does not limit the department's authority to regulate water withdrawals under ss. 281.346 and 281.35.

AB477,5 Section 5. 281.34 (2) of the statutes is amended to read:

AB477,6,25 281.34 (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 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 and pays the required fee 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.

AB477,6 Section 6. 281.34 (2g) of the statutes is created to read:

AB477,7,6 281.34 (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:

AB477,7,7 1. Repair and maintain the existing high capacity well.

AB477,7,13 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 in a manner that will protect public safety, and if any of the following applies:

AB477,7,16 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.

AB477,7,22 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 stream or navigable lake than the existing high capacity well and will not be located within 1,000 feet of any other navigable stream or navigable lake.

AB477,7,25 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.

AB477,8,2 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.

AB477,8,3 (b) The department may not impose a fee for any action under par. (a).

AB477,8,8 (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.

AB477,8,11 (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).

AB477,8,13 (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.

AB477,7 Section 7. 281.34 (4) (a) (intro.) of the statutes is amended to read:

AB477,8,17 281.34 (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:

AB477,8 Section 8. 281.34 (4) (am) of the statutes is created to read: