281.35(11)(e)
(e) As provided in the Great Lakes charter, participate in the development of a regional consultation procedure for use in exchanging information on effects of proposed interbasin diversions and consumptive uses.
281.35(11m)
(11m) Upper Mississippi River basin consultation. The department shall participate in the development of an upper Mississippi River basin regional consultation procedure for use in exchanging information on the effects of proposed water losses from that basin.
281.35(12)(a)(a) The enumeration of any remedy under this section does not limit the right to any other remedy available in an action under the statutory or common law of this state or any other state or province, federal law or Canadian law.
281.35(12)(b)
(b) Proof of compliance with this section is not a defense in any action not founded on this section.
281.35(12)(c)
(c) This state reserves the right to seek, in any state, federal or provincial forum, an adjudication of the equitable apportionment of the water resources of the upper Mississippi River basin and, before the compact's effective date, of the Great Lakes basin, and the protection and determination of its rights and interests in those water resources, in any manner provided by law.
281.35 Note
NOTE: Section
1 of
1985 Act 60, which created this section is entitled "Legislative findings; purpose."
281.35 Cross-reference
Cross-reference: See also ch.
NR 142, Wis. adm. code.
281.35 Annotation
Sections 281.11 and 281.12 expressly delegate regulatory authority to the DNR necessary to fulfill its mandatory duty to protect, maintain, and improve the quality and management of the waters of the state, ground and surface, public and private. That ss. 281.11 and 281.12 do not mention wells in particular does not mean that the statutes do not grant the DNR the authority to control or regulate wells by considering environmental factors relevant to protecting, maintaining, and improving waters of the state. Lake Beulah Management District v. DNR, 2010 WI App 85, ___ Wis. 2d___, ___ N.W.2d ___,
08-3170.
281.35 Annotation
The legislature's mandate that the DNR complete a formal environmental review for only certain wells under ss. 281.34 and 281.35 does not prohibit or rescind the DNR's authority to review other wells under ss. 281.11 and 281.12. However, there is no requirement mandating the DNR to do a full examination of every well to see if the public trust doctrine is affected. It is for the DNR to determine the type and quantum of evidence that it deems enough to investigate, but scientific evidence suggesting an adverse affect to waters of the state should be enough to warrant further, independent investigation. Lake Beulah Management District v. DNR, 2010 WI App 85, ___ Wis. 2d___, ___ N.W.2d ___,
08-3170.
281.36
281.36
Water quality certification for nonfederal wetlands. 281.36(1)(a)
(a) "Additional federal law or interpretation" means any of the following:
281.36(1)(a)2.
2. Any other federal statutory provision that affects the exemptions under
33 USC 1344 (f) and that becomes effective after January 9, 2001.
281.36(1)(a)3.
3. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC 1344 (f), that applies to wetlands located in this state, and that becomes effective after January 9, 2001.
281.36(1)(a)4.
4. A decision issued by a federal district or federal appellate court that affects the application of a federal amendment or provision described in
subds. 1. to
3., that applies to wetlands located in this state, and that is issued after January 9, 2001.
281.36(1)(b)
(b) "Existing federal law or interpretation" means any of the following:
281.36(1)(b)2.
2. A regulation, rule, memorandum of agreement, guidance letter, interpretive document, or other provision established by a federal agency that is promulgated or adopted pursuant to
33 USC 1344 (f) or that is used to interpret or implement
33 USC 1344 (f), that applies to wetlands located in this state, and that is in effect on January 8, 2001.
281.36(1)(b)3.
3. A decision issued by a federal district or federal appellate court that affects the application of a federal statute or provision described in
subd. 1. or
2., that applies to wetlands located in this state, and that is issued on or before January 8, 2001.
281.36(1)(bg)
(bg) "Federal transportation agency" means the federal aviation administration, the federal highway administration, or the federal railroad administration.
281.36(1)(c)
(c) "Nonfederal wetland" means a wetland that is identified as such under
sub. (1m).
281.36(1)(cm)
(cm) "Political subdivision" means a city, village, town, or county.
281.36(1)(cr)
(cr) "State transportation agency" means the department of transportation or the office of the commissioner of railroads.
281.36(1)(d)
(d) "Water quality standards" means water quality standards set under rules promulgated by the department under
s. 281.15.
281.36(1m)
(1m) Determination of nonfederal wetlands. 281.36(1m)(a)(a) A wetland is identified as a nonfederal wetland if either of the following applies:
281.36(1m)(a)1.
1. Any discharges of dredged or fill material into the wetland are determined not to be subject to regulation under
33 USC 1344 due to the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
281.36(1m)(a)2.
2. The wetland is determined to be a nonnavigable, intrastate, and isolated wetland under the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) or any subsequent interpretations of that decision by a federal agency or by a federal district or federal appellate court that applies to wetlands located in this state.
281.36(1m)(b)1.
1. If the U.S. army corps of engineers issues a determination as to whether a wetland is a nonfederal wetland, the department shall adopt that determination.
281.36(1m)(b)2.
2. If the U.S. army corps of engineers does not issue a determination as to whether a wetland is a nonfederal wetland, the department shall determine whether the wetland is a nonfederal wetland.
281.36(2)(a)(a) No person may discharge dredged or fill material into a nonfederal wetland unless the discharge is authorized by a water quality certification issued by the department under this section. No person may violate any condition imposed by the department in a water quality certification under this section. The department may not issue a water quality certification under this section unless it determines that the discharge will comply with all applicable water quality standards.
281.36(2)(b)1.1. The department shall approve or deny a complete application for a water quality certification under this section within 120 days after the date the department determines that a complete application for the certification has been submitted unless the applicant and the department agree to extend the time period. The department may not determine an application to be complete until the requirements under
s. 1.11 have been met and until all of the items of information for the water quality certification and for any associated permits or other approvals have been submitted to the department. If the department fails to approve or deny the complete application within the applicable time period, the applicant may bring an action for mandamus to compel the department to approve or deny the application. If the court grants the mandamus, the department shall approve or deny the application within 30 days after the mandamus is granted and the court shall award the applicant reasonable attorney fees and court costs incurred in bringing the action.
281.36(2)(b)2.
2. For purposes of
subd. 1., the department shall initially determine whether a complete application has been submitted and, no later than 30 days after the application is submitted, notify the applicant in writing about the initial determination of completeness. If the department determines that the application is incomplete, the notice shall state the reason for the determination and the specific items of information necessary to make the application complete. An applicant may supplement and resubmit an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may resubmit an application that the department has determined to be incomplete under this subdivision. The department may not demand items of information that are not specified in the notice as a condition for determining whether the application is complete unless both the department and the applicant agree or unless the applicant makes material additions or alterations to the project for which the application has been submitted.
281.36(3)
(3) Delineation procedures. For purposes of delineating the boundary of a nonfederal wetland, the department and the person who is applying for or who holds a water quality certification under this section shall use the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers. The edition of the manual that shall be used shall be the 1987 edition of the manual and any document that the U.S. army corps of engineers issues interpreting that manual, unless the U.S. army corps of engineers publishes an edition of the manual after January 9, 2001, and the department by rule designates that edition as the one to be used under this subsection. If the U.S. army corps of engineers issues a guidance document interpreting the edition of the wetlands delineation manual that the department is required to use under this subsection and if that guidance document is issued after May 8, 2001, the department shall notify the appropriate standing committee of each house of the legislature, as determined by the speaker of the assembly and the president of the senate, of the issuance of the guidance document and whether the department intends to promulgate a rule incorporating the provisions of the guidance document.
281.36(4)
(4) Exemptions. Except as provided in
sub. (5), the certification requirement under
sub. (2) does not apply to any discharge that is the result of any of the following activities:
281.36(4)(a)
(a) Normal farming, silviculture, or ranching activities.
281.36(4)(b)
(b) Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a nonfederal wetland.
281.36(4)(c)
(c) Construction or maintenance of farm ponds, stock ponds, or irrigation ditches.
281.36(4)(e)
(e) Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the department, to ensure all of the following:
281.36(4)(e)1.
1. That the flow and circulation patterns and chemical and biological characteristics of the affected nonfederal wetland are not impaired.
281.36(4)(e)2.
2. That the reach of the affected nonfederal wetland is not reduced.
281.36(4)(e)3.
3. That any adverse effect on the aquatic environment of the affected nonfederal wetland is minimized to the degree required by the department.
281.36(5)
(5) Inapplicability of exemptions. Notwithstanding
sub. (4), a discharge that would be exempt under
sub. (4) is subject to the certification requirement under
sub. (2) if the discharge is incidental to an activity that has as its purpose bringing a nonfederal wetland, or part of an nonfederal wetland, into a use for which it was not previously subject and if the activity may do any of the following:
281.36(5)(a)
(a) Impair the flow or circulation of any nonfederal wetland.
281.36(5)(b)
(b) Reduce the reach of any nonfederal wetland.
281.36(6)(a)(a) The department shall promulgate rules to interpret and implement the provisions under
subs. (4) and
(5). In promulgating these rules, the department shall do all of the following:
281.36(6)(a)1.
1. Make the rules consistent with existing federal law.
281.36(6)(a)2.
2. Incorporate any applicable additional federal law or interpretation into the rules.
281.36(6)(b)
(b) Whenever an additional federal law or interpretation is initially incorporated into the rules, the department may modify the additional federal law or interpretation as it determines is necessary, but the department may not otherwise amend or modify any of the rules promulgated under this subsection.
281.36(7)
(7) Rules prohibition; determinations of public safety. 281.36(7)(a)(a) The department may not promulgate or enforce a rule requiring a person who submits an application for a water quality certification under this section for the discharge of dredged or fill material into a nonfederal wetland to submit a description of practicable alternatives to the discharge or to submit a description of any investigation conducted to determine the viability of such alternatives if all of the following apply:
281.36(7)(a)2.
2. The wetland is not in an area of special natural resource interest.
281.36(7)(a)3.
3. The application for the water quality certification includes a copy of a determination that the discharge is necessary for public safety that is made under
par. (b) or that is made in response to a request made under
par. (bn).
281.36(7)(b)1.1. A political subdivision shall make a determination as to whether a discharge into a nonfederal wetland within the boundaries of the political subdivision is necessary for public safety if requested to do so by an applicant for a water quality certification under this section. A state transportation agency shall make a determination as to whether a discharge into a nonfederal wetlands is necessary for public safety if requested to do so by an applicant for a water quality certification under this section.
281.36(7)(b)2.
2. Before a political subdivision or a state transportation agency makes any determination under
subd. 1., it shall publish appropriate notice, as determined by the political subdivision or the state transportation agency, to the public that describes the request and that states that it will be making the determination. On or before the date of the publication of the notice, the political subdivision or state transportation agency shall mail or otherwise provide a written copy of the notice to the department. After publication of the notice, the governing body of the political subdivision or the state transportation agency may hold a public hearing to determine whether the discharge is necessary for public safety. Any public hearing held under this subdivision shall be held no later than 30 days after the applicant for the water quality certification made the request for the determination. The governing body of the political subdivision or the state transportation agency shall issue the determination in writing, and the determination shall include a statement of the grounds for making the determination.
281.36(7)(b)3.
3. The department or any person whose substantial interests are adversely affected by a determination issued under
subd. 2. by a governing body of a political subdivision or by a state transportation agency may file for judicial review of the determination.
Section 68.13 shall apply to the judicial review of a determination made by a political subdivision.
Sections 227.52 to
227.58 shall apply to the judicial review of a determination made by a state transportation agency.
281.36(7)(bn)
(bn) An applicant for a water quality certification may submit a request to a federal transportation agency for a determination as to whether a discharge into a nonfederal wetland is necessary for public safety.
281.36(7)(c)1.1. Notwithstanding the fact that an applicant for a water quality certification under this section has received a determination that the discharge is necessary for public safety, the department may conduct an examination of the practicable alternatives to the proposed discharge that will not adversely affect the nonfederal wetland and that will not result in other significant adverse environmental consequences.
281.36(7)(c)2.
2. If the department decides under
subd. 1. to conduct an examination, the department shall conduct the examination by first determining, after consulting with the applicant for the water quality certification, whether an alternative to the discharge exists on the parcel of land on which the nonfederal wetland is located that would not conflict with the determination that the discharge is necessary for public safety. At the same time that the department is conducting the examination of the practicable alternatives under this subdivision, the department shall consider the functional value of the nonfederal wetland. If the department determines that such a practicable alternative exists, the department may deny the water quality certification.
281.36(7)(c)3.
3. If the department determines that no practicable alternative exists after conducting the examination under
subd. 2., the department may proceed with the examination by determining, after consulting with the applicant for the water quality certification, whether an alternative to the discharge exists on the parcel of land on which the nonfederal wetland is not located that would not conflict with the determination that the discharge is necessary for public safety. At the same time that the department is conducting an examination of the practicable alternatives under this subdivision, the department shall consider the functional value of the nonfederal wetland. If the department determines that such a practicable alternative exists, the department may deny the water quality certification.
281.36(7)(c)4.
4. If the department determines that no practicable alternative exists after conducting the examination under
subds. 2. and
3., the department may require that the applicant implement a mitigation project under
s. 281.37 (2).
281.36(8)
(8) General water quality certifications. 281.36(8)(a)(a) In lieu of issuing individual water quality certifications under this section, the department may issue a general water quality certification for types of discharges that the department determines are similar in nature or for the purpose of simplifying the certification process if the discharges meet all of the following standards:
281.36(8)(a)1.
1. The discharges will cause only minimal adverse environmental effects, as determined by the department, if they are performed separately.
281.36(8)(a)2.
2. The cumulative adverse effect on the environment by the discharges will be minimal, as determined by the department.
281.36(8)(b)
(b) No general water quality certification issued under
par. (a) may be effective for more than 5 years after the date of its issuance.
281.36(8)(bn)1.1. The department shall issue general water quality certifications that are consistent with all of the general permits issued under
33 USC 1344 (e) that applied on January 8, 2001, to nonfederal wetlands located in this state.
281.36(8)(bn)2.
2. If a general permit as specified in
subd. 1. is amended or modified after January 8, 2001, the department shall incorporate the amendments or modifications into the general water quality certification issued under
subd. 1. and may not otherwise amend or modify the general water quality certification.
281.36(8)(c)
(c) If the department determines that any of the discharges under a general water quality certification issued under
par. (a) fails to meet any of the standards in
par. (a), the department shall modify the certification so that the discharges meet all of the standards. If the department cannot modify the certification so that all of the standards will be met or if the department determines that the discharges subject to the general certification are more appropriately certified by using individual water quality certifications, the department shall revoke the general certification.
281.36(8)(d)
(d) Before issuing, modifying, or revoking a general water quality certification issued under
par. (a), the department shall provide notice and a hearing under
ss. 227.17 and
227.18.
281.36(8)(e)
(e) Subsection (2) (b) does not apply to general water quality certifications issued under this subsection.
281.36(9)(a)(a) For purposes of enforcing this section, any employee or other representative of the department, upon presenting his or her credentials, may do any of the following:
281.36(9)(a)1.
1. Enter and inspect any property on which is located a nonfederal wetland, or part of a nonfederal wetland, for which an application for a water quality certification has been submitted to the department.
281.36(9)(a)2.
2. Enter and inspect any property on which is located a nonfederal wetland to investigate a discharge of dredged or fill material that the department has reason to believe is in violation of this section.
281.36(9)(a)3.
3. Gain access to and inspect any records that the department requires a holder of a water quality certification to keep.
