281.01 History
History: 1995 a. 227.
281.01 Annotation
A dealer's refusal to sell the manufacturer's products after filing a complaint under sub. (2) (bd) 2. is a violation of that provision, and consequently of sub. (3) (a) 4., entitling the manufacturer to treble damages under sub. (9) (am). American Suzuki Motor Corp. v. Bill Kummer, Inc. 65 F (3d) 1381 (1995).
WATER RESOURCES
281.11
281.11
Statement of policy and purpose. The department 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 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 subchapter and all rules and orders promulgated under this subchapter shall be liberally construed in favor of the policy objectives set forth in this subchapter. In order to achieve the policy objectives of this 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.
281.11 History
History: 1995 a. 227 s.
374.
281.11 Annotation
The supreme court adopts the so-called American rule for liability on use of underground waters. State v. Michels Pipeline Construction, Inc. 63 W (2d) 278, 217 NW (2d) 339, 219 NW (2d) 308.
281.11 Annotation
Supplying of water to its inhabitants by a municipality is not a proprietary function immune from the provisions of ch. 144, because the protection of public health is a matter of state-wide concern over which the legislature may exercise its police powers to insure a healthful water supply. Village of Sussex v. Dept. of Natural Resources, 68 W (2d) 187, 228 NW (2d) 173.
281.11 Annotation
Department regulatory power over wetlands discussed. 68 Atty. Gen. 264.
281.11 Annotation
The public trust doctrine. 59 MLR 787.
281.11 Annotation
Theories of water pollution litigation. Davis, 1971 WLR 738.
281.11 Annotation
Carrying capacity controls for recreation water uses. Kusler, 1973 WLR 1.
281.12
281.12
General department powers and duties. 281.12(1)(1) The department shall have general supervision and control over the waters of the state. It shall carry out the planning, management and regulatory programs necessary for implementing the policy and purpose of this chapter. The department also shall formulate plans and programs for the prevention and abatement of water pollution and for the maintenance and improvement of water quality.
281.12(3)
(3) The department, upon request, shall consult with and advise owners who have installed or are about to install systems or plants, as to the most appropriate water source and the best method of providing for its purity, or as to the best method of disposing of wastewater, including operations and maintenance, taking into consideration the future needs of the community for protection of its water supply. The department is not required to prepare plans.
281.12(5)
(5) The department may enter into agreements with the responsible authorities of other states, subject to approval by the governor, relative to methods, means and measures to be employed to control pollution of any interstate streams and other waters and to carry out such agreement by appropriate general and special orders. This power shall not be deemed to extend to the modification of any agreement with any other state concluded by direct legislative act, but, unless otherwise expressly provided, the department shall be the agency for the enforcement of any such legislative agreement.
281.12 History
History: 1995 a. 227 ss.
376,
383,
385,
987;
1995 a. 378 s.
42.
281.13
281.13
Surveys and research. 281.13(1)(a)(a) [The department is authorized to act] Act with the U.S. geological survey in determining the sanitary and other conditions and nature of the natural water sources in this state, for the following purposes:
281.13(1)(a)1.
1. To determine the nature and condition of the unpolluted natural water sources.
281.13(1)(a)2.
2. To determine to what extent the natural water sources are being contaminated by sewage from cities, villages and towns.
281.13(1)(a)3.
3. To determine to what extent the natural water sources are being polluted by other wastes.
281.13 Note
NOTE: 1995 Wis. Act 378 replaced the bracketed language with "Act". This change was part of an earlier draft which was not enacted. In order for this provision to be complete and workable, the bracketed language must be restored. Corrective legislation is pending.
281.13(1)(b)
(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 subsection into effect.
281.13(3)
(3) The department may conduct scientific experiments, investigations, waste treatment demonstrations and research on any matter under its jurisdiction. It may establish pilot plants, prototypes and facilities in connection therewith and lease or purchase land or equipment.
281.13 History
History: 1995 a. 227 ss.
372,
382;
1995 a. 378 s.
40.
281.15
281.15
Water quality standards. 281.15(1)
(1) The department shall promulgate rules setting standards of water quality to be applicable to the waters of the state, recognizing that different standards may be required for different waters or portions thereof. Water quality standards shall consist of the designated uses of the waters or portions thereof and the water quality criteria for those waters based upon the designated use. Water quality standards shall protect the public interest, which include the protection of the public health and welfare and the present and prospective future use of such waters for public and private water systems, propagation of fish and aquatic life and wildlife, domestic and recreational purposes and agricultural, commercial, industrial and other legitimate uses. In all cases where the potential uses of water are in conflict, water quality standards shall be interpreted to protect the general public interest.
281.15(2)
(2) In adopting or revising any water quality criteria for the waters of the state or any designated portion thereof, the department shall do all of the following:
281.15(2)(a)
(a) At least annually publish and provide public notice of water quality criteria to be adopted, revised or reviewed in the following year.
281.15(2)(b)
(b) Consider information reasonably available to the department on the likely social, economic, energy usage and environmental costs associated with attaining the criteria and provide a description of the economic and social considerations used in the establishment of the criteria.
281.15(2)(c)
(c) Establish criteria which are no more stringent than reasonably necessary to assure attainment of the designated use for the water bodies in question.
281.15(2)(d)
(d) Employ reasonable statistical techniques, where appropriate, in interpreting the relevant water quality data.
281.15(2)(e)
(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 section.
281.15(3)
(3) Subsection (2) does not apply to rules promulgated under this section by the department for any substance before November 10, 1987.
281.15(4)
(4) By April 1, 1989, the department shall review, in accordance with
sub. (2), and as necessary revise all water quality criteria, except those for dissolved oxygen, temperature, pH and ammonia, adopted under this section before November 10, 1987.
281.15(5)
(5) The department shall comply with this section with respect to all water quality criteria adopted or revised after November 10, 1987.
281.15 History
History: 1995 a. 227 s.
377;
1995 a. 378 s.
41.
281.17
281.17
Water quality and quantity; specific regulations. 281.17(1)(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. 281.35 applies to the proposed construction, the application shall comply with
s. 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. 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. 281.35, if applicable. The department shall require each person issued an approval under this subsection to report that person's volume and rate of withdrawal, as defined under
s. 281.35 (1) (m), and that person's volume and rate of water loss, as defined under
s. 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 subsection.
281.17(2)
(2) The department shall supervise chemical treatment of waters for the suppression of algae, aquatic weeds, swimmers' itch and other nuisance-producing plants and organisms. It may purchase equipment and may make a charge for the use of the same and for materials furnished, together with a per diem charge for any services performed in such work. The charge shall be sufficient to reimburse the department for the use of the equipment, the actual cost of materials furnished, and the actual cost of the services rendered.
281.17(3)
(3) The department shall promulgate rules establishing an examining program for the certification of operators of water systems, wastewater treatment plants and septage servicing vehicles operated under a license issued under
s. 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 subsection for the certification of operators of water systems, wastewater treatment plants and septage servicing vehicles shall be credited to the appropriation under
s. 20.370 (2) (bL). No person may operate a water systems, wastewater treatment plant or septage servicing vehicle without a valid certificate issued under this subsection. The department may suspend or revoke a certificate issued under this subsection for a violation of any statute or rule relating to the operation of a water system 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 subsection who shall be responsible for plant operations, unless the department by rule provides otherwise. In this 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.
281.17 Note
NOTE: Sub. (3) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
281.17(5)
(5) The department may prohibit the installation or use of septic tanks in any area of the state where the department finds that the use of septic tanks would impair water quality. The department shall prescribe alternate methods for waste treatment and disposal in such prohibited areas.
281.17(6)
(6) On and after December 31, 1965, the sale and use of nondegradable detergents containing alkyl benzene sulfonate is prohibited in this state.
281.17(7)
(7) Discharge of mercury compounds and metallic mercury into the waters of this state by any person shall be limited to fifteen-hundredths of a pound of mercury per day averaged over a 30-day period, and not more than one-half pound in any one day. The department may establish lower maximum discharge limits by rule.
281.17(8)
(8) The department may establish, administer and maintain a safe drinking water program no less stringent than the requirements of the safe drinking water act of 1974,
P.L. 93-523, 88 Stat. 1660.
281.17 History
History: 1995 a. 227 ss.
380,
384,
387,
389,
392,
418,
420;
1995 a. 378 s.
43; s. 13.93 (2) (c).
281.17 Annotation
Madison's power to forbid chemical treatment of Madison lakes was withdrawn by s. 144.025 (2) (i). Wis. Environmental Decade, Inc. v. DNR, 85 W (2d) 518, 271 NW (2d) 69 (1978).
281.17 Annotation
A municipality has no jurisdiction over chemical treatment of waters to suppress aquatic nuisances. The department is granted statewide supervision over aquatic nuisance control under s. 144.025 (2) (i). Applications for permits to chemically treat aquatic nuisances under s. 144.025 (2) (i) may be denied even though statutory and regulatory requirements have been met if such chemical treatment would be counter-productive in achieving the goals set out in s. 144.025 (1). 63 Atty. Gen. 260.
281.19(1)(1) The department may issue general orders, and adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods and means for preventing and abating pollution of the waters of the state. Such general orders and rules shall be issued only after an opportunity to be heard thereon has been afforded to interested parties.
281.19(2)(a)(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. 299.95.
281.19(2)(b)
(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
par. (a).
281.19(3)
(3) The department shall make investigations and inspections to insure compliance with any general or special order or rule which it issues. In the exercise of this power the department may require the submission and approval of plans for the installation of systems and devices for handling, treating or disposing of any wastes.
281.19(4)
(4) The department may, under
s. 254.59, order or cause the abatement of any nuisance affecting the waters of the state.
281.19(5)
(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. 281.41, and to construct such system within a specified time.
281.19(6)
(6) Orders issued by the department shall be signed by the person designated by the board.
281.19(7)
(7) In cases of noncompliance with any order issued under
sub. (2) or
(5) or
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 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. 281.55,
281.57,
281.58 and
281.59.
281.19(8)
(8) 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:
281.19(8)(a)
(a) They shall first file with the department a verified petition setting forth specifically the modification or change desired in such order. Such petition must be filed within 60 days of the issuance of the orders sought to be reviewed. Upon receipt of such a petition the department shall order a public hearing thereon and make such further investigations as it shall deem advisable. Pending such review and hearing, the department may suspend such orders under terms and conditions to be fixed by the department on application of any such petitioner. The department shall affirm, repeal or change the order in question within 60 days after the close of the hearing on the petition.
281.19(8)(b)
(b) The determination of the department shall be subject to review as provided in
ch. 227.
281.19 History
History: 1995 a. 227 ss.
378,
379,
381,
386,
388,
390,
391,
397 987.
281.19 Annotation
Department is authorized, not required, to set standards for sewer extension approvals and may process sewer extension applications on a case by case basis under s. 144.025 (2) (c). Wis. Environmental Decade v. DNR, 82 W (2d) 97, 260 NW (2d) 674.
281.19 Annotation
The department of natural resources has the authority to order a municipality to construct a public water supply, upon a finding that the absence of a public water supply constitutes a nuisance or menace to health or comfort, even though the electors of the municipality voted against construction in a referendum. 60 Atty. Gen. 523.
281.20
281.20
Orders; nonpoint source pollution. 281.20(1)
(1) Under the procedure specified in
sub. (3), the department may do any of the following:
281.20(1)(a)
(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. 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 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. 281.65 (5m) or a modification to such a plan under
s. 281.65 (5s).
281.20(1)(b)
(b) If it provided notice under
s. 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. 281.65 (5m) or in a modification to such a plan under
s. 281.65 (5s) to implement best management practices, but not with respect to any pollution caused primarily by animal waste.
281.20(3)(a)1.1. If the department determines that it is authorized to issue an order under
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.
281.20(3)(a)2.
2. If the department determines under
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.
281.20(3)(a)3.
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 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.
281.20(3)(b)
(b) If the nonpoint source that is the subject of a notice under
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
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.
281.20(3)(c)
(c) If the nonpoint source which is the subject of a notice under
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:
281.20(3)(c)1.
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
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.
281.20(3)(c)2.
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
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.
281.20(3)(d)
(d) The department may issue a temporary emergency order prior to issuing a notice under
par. (a) if all of the following apply:
281.20(3)(d)1.
1. The department determines that the pollution is causing or will cause severe water quality degradation.
281.20(3)(d)2.
2. The abatement action required by the order does not involve a capital expenditure.
281.20(3)(d)3.
3. If the nonpoint source is agricultural, the department provides a copy of the temporary emergency order to the department of agriculture, trade and consumer protection and to the land conservation committee created under
s. 92.06 in every county in which the nonpoint source is located.
281.20(3)(d)4.
4. As soon as practicable after issuing the temporary emergency order, the department issues a written notice of intent to issue an order under
pars. (a) and
(b) or rescinds the temporary emergency order.
281.20(5)(a)(a) Except as provided in
par. (c), if the department issues a notice under
sub. (3) (a) 2., the source is agricultural and no land conservation committee disapproves the proposed order under
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
sub. (3) (b). If the land conservation committee of any county in which a source is located disapproves of a proposed order under
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.
281.20(5)(b)
(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
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.
