281.31 Annotation
The necessity of zoning variance or amendments notice to the Wisconsin department of natural resources under the shoreland zoning and navigable waters protection acts. Whipple, 57 MLR 25.
281.31 Annotation
The public trust doctrine. 59 MLR 787.
281.31 Annotation
Water quality protection for inland lakes in Wisconsin; a comprehensive approach to water pollution. Kusler, 1970 WLR 35.
281.31 Annotation
Land as property; changing concepts. Large, 1973 WLR 1039.
281.31 Annotation
Wisconsin's Shoreland Management Program: An Assessment With Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.
281.33
281.33
Construction site erosion control and storm water management. 281.33(1)(1)
Objectives. To aid in the fulfillment of the state's role as trustee of its navigable waters, to promote public health, safety and general welfare and to protect natural resources, it is declared to be in the public interest to make studies, establish policies, make plans, authorize municipal construction site erosion control and storm water management zoning ordinances for the efficient use, conservation, development and protection of this state's groundwater, surface water, soil and related resources and establish a state storm water management plan for the efficient use, conservation, development and protection of this state's groundwater, surface water, soil and related resources while at the same time encouraging sound economic growth in this state. The purposes of the municipal ordinances and state plan shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; prevent and control soil erosion; prevent and control the adverse effects of storm water; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth.
281.33(2)
(2) State storm water management plan. The department, in consultation with the department of safety and professional services, shall promulgate by rule a state storm water management plan. This state plan is applicable to activities contracted for or conducted by any agency, as defined under
s. 227.01 (1) but also including the office of district attorney, unless that agency enters into a memorandum of understanding with the department of natural resources in which that agency agrees to regulate activities related to storm water management. The department shall coordinate the activities of agencies, as defined under
s. 227.01 (1), in storm water management and make recommendations to these agencies concerning activities related to storm water management.
281.33(3)
(3) Standards related to storm water and certain construction activities. 281.33(3)(a)1.1. Except as restricted under
subd. 2., the department shall establish by rule minimum standards for activities related to construction site erosion control at sites where the construction activities do not include the construction of a building and to storm water management.
281.33(3)(a)2.
2. The department, in cooperation with the department of transportation, shall establish by rule minimum standards for activities related to construction site erosion control and storm water management if those activities concern street, highway, road or bridge construction, enlargement, relocation or reconstruction.
281.33(3)(a)3.
3. Minimum standards for storm water management established under this paragraph are applicable to the state plan under
sub. (2). The department shall encourage a city, village, town or county to comply with minimum standards established under this paragraph for any construction site erosion control and storm water management zoning ordinance enacted under
s. 59.693,
60.627,
61.354 or
62.234.
281.33(3)(a)4.
4. The department shall identify low-cost practices which would enable a person to comply with these minimum standards.
281.33(3)(b)
(b) The minimum standards for construction site erosion control at sites where the construction activities do not include the construction of a building shall provide for the regulation of any construction activity, at such a site, that:
281.33(3)(b)1.
1. Involves the grading, removal of protective ground cover or vegetation, excavation, land filling or other land disturbing activity which affects an area of 4,000 square feet or more.
281.33(3)(b)2.
2. Involves the excavation or filling or a combination of excavation and filling which affects 400 cubic yards or more of dirt, sand or other excavation or fill material.
281.33(3)(b)3.
3. Involves street, highway, road or bridge construction, enlargement, relocation or reconstruction.
281.33(3)(b)4.
4. Involves the laying, repairing, replacing or enlarging of an underground pipe or facility for a distance of 300 feet or more.
281.33(3)(b)5.
5. Requires a subdivision plat approval or a certified survey.
281.33(3)(c)
(c) The minimum standards for storm water management shall provide for the regulation of any construction activity which:
281.33(3)(c)1.
1. Is a residential development with a gross aggregate area of 5 acres or more.
281.33(3)(c)2.
2. Is a residential development with a gross aggregate area of 3 acres or more with at least 1.5 acres of impervious surfaces.
281.33(3)(c)3.
3. Is a development other than a residential development with a gross aggregate area of 3 acres or more.
281.33(3)(c)4.
4. Is likely to result in storm water runoff which exceeds the safe capacity of the existing drainage facilities or receiving body of water, which causes undue channel erosion, which increases water pollution by scouring or the transportation of particulate matter or which endangers downstream property.
281.33(4)
(4) Model ordinances; state plan; distribution. The department shall prepare a model zoning ordinance for construction site erosion control at sites where the construction activities do not include the construction of a building and for storm water management in the form of an administrative rule. The model ordinance is subject to
s. 227.19 and other provisions of
ch. 227 in the same manner as other administrative rules. Following the promulgation of the model ordinance as a rule, the department shall distribute a copy of the model ordinance to any city, village, town or county that submits a request. The department shall distribute a copy of the state plan to any agency which submits a request.
281.33(5)
(5) Cooperation. The department, the municipalities and all state agencies shall cooperate to accomplish the objective of this section. To that end, the department shall consult with the governing bodies of municipalities to secure voluntary uniformity of regulations, so far as practicable, shall prepare model ordinances under
sub. (4), shall extend assistance to municipalities under this section, shall prepare the plan under
sub. (2), shall encourage uniformity through the implementation of this plan and the utilization of memoranda of understanding which are substantially similar to the plan and shall extend assistance to agencies under this section.
281.33 Cross-reference
Cross-reference: See also chs.
NR 152 and
216, Wis. adm. code.
281.34
281.34
Groundwater withdrawals. 281.34(1)(a)
(a) "Groundwater protection area" means an area within 1,200 feet of any of the following:
281.34(1)(a)1.
1. An outstanding resource water identified under
s. 281.15 that is not a trout stream.
281.34(1)(a)2.
2. An exceptional resource water identified under
s. 281.15 that is not a trout stream.
281.34(1)(a)3.
3. A class I, class II, or class III trout stream, other than a class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history, as identified under
sub. (8) (a).
281.34(1)(b)
(b) "High capacity well" means a well that, together with all other wells on the same property, has a capacity of more than 100,000 gallons per day.
281.34(1)(c)
(c) "Local governmental unit" means a city, village, town, county, town sanitary district, utility district under
s. 66.0827 that provides water, public inland lake protection and rehabilitation district that has town sanitary district powers under
s. 33.22 (3), joint local water authority created under
s. 66.0823, or municipal water district under
s. 198.22.
281.34(1)(d)
(d) "Owner" means a person who owns property on which a well is located or proposed to be located or the designated representative of such a person.
281.34(1)(e)
(e) "Potentiometric surface" means a measure of pressure of groundwater in an aquifer based on the level to which groundwater will rise in a well placed in the aquifer.
281.34(1)(f)
(f) "Spring" means an area of concentrated groundwater discharge occurring at the surface of the land that results in a flow of at least one cubic foot per second at least 80 percent of the time.
281.34(1)(g)
(g) "Water loss" means a loss of water from the basin from which it is withdrawn as a result of interbasin diversion or consumptive use or both.
281.34(1)(h)
(h) "Well" means any drillhole or other excavation or opening deeper than it is wide that extends more than 10 feet below the ground surface and is constructed for the purpose of obtaining groundwater.
281.34(2)
(2) Approval required for high capacity wells. An owner shall apply to the department for approval before construction of a high capacity well begins. 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.
281.34(2m)
(2m) Temporary dewatering wells. The department shall issue a single approval under
sub. (2) for all high capacity wells constructed for one project, as determined by the department, for temporary dewatering of a construction site, including a construction site for a building, road, or utility. The department shall provide for amendments to a project under this subsection. A person applying for approval of high capacity wells for a project under this subsection is only required to pay one $500 fee.
281.34(3)
(3) Notification required for other wells. 281.34(3)(a)(a) An owner shall notify the department of the location of a well that is not a high capacity well before construction of the well begins. An owner notifying the department under this subsection shall pay a fee of $50.
281.34(3)(b)
(b) The department may appoint any person who is not an employee of the department as the department's agent to accept and process notifications and collect the fees under
par. (a).
281.34(3)(c)
(c) Any person, including the department, who accepts and processes a well notification under
par. (a) shall collect in addition to the fee under
par. (a) a processing fee of 50 cents. An agent appointed under
par. (b) may retain the processing fee to compensate the agent for the agent's services in accepting and processing the notification.
281.34(4)(a)(a) The department shall review an application for approval of any of the following using the environmental review process in its rules promulgated under
s. 1.11:
281.34(4)(a)1.
1. A high capacity well that is located in a groundwater protection area.
281.34(4)(a)2.
2. A high capacity well with a water loss of more than 95 percent of the amount of water withdrawn.
281.34(4)(a)3.
3. A high capacity well that may have a significant environmental impact on a spring.
281.34(4)(b)
(b) If, under
sub. (5) (b),
(c), or
(d), the department requests an environmental impact report under
s. 23.11 (5) for a proposed high capacity well, the department may only request information in that report that relates to the decisions that the department makes under this section related to the proposed high capacity well.
281.34(5)
(5) Standards and conditions for approval. 281.34(5)(a)(a)
Public water supply. If the department determines that a proposed high capacity well may impair the water supply of a public utility engaged in furnishing water to or for the public, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that will ensure that the water supply of the public utility will not be impaired.
281.34(5)(b)1.1. Except as provided in
subd. 2., if the department determines, under the environmental review process in
sub. (4), that an environmental impact report under
s. 23.11 (5) must be prepared for a proposed high capacity well located in a groundwater protection area, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact.
281.34(5)(b)2.
2. Subdivision 1. does not apply to a proposed high capacity well that is located in a groundwater protection area and that is a water supply for a public utility engaged in supplying water to or for the public, if the department determines that there is no other reasonable alternative location for a well and is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.
281.34(5)(c)
(c)
High water loss. If the department determines, under the environmental review process in
sub. (4), that an environmental impact report under
s. 23.11 (5) must be prepared for a proposed high capacity well with a water loss of more than 95 percent of the amount of water withdrawn, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact.
281.34(5)(d)1.1. Except as provided in
subd. 2., if the department determines, under the environmental review process in
sub. (4), that an environmental impact report under
s. 23.11 (5) must be prepared for a proposed high capacity well that may have a significant environmental impact on a spring, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact.
281.34(5)(d)2.
2. Subdivision 1. does not apply to a proposed high capacity well that may have a significant environmental impact on a spring and that is a water supply for a public utility engaged in supplying water to or for the public, if the department determines that there is no other reasonable alternative location for a well and is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.
281.34(5)(dm)
(dm)
Water supply service area plan. If a proposed high capacity well is covered by an approved water supply service area plan under
s. 281.348, the department may not approve the high capacity well unless it is consistent with that plan.
281.34(5)(e)1.1. If
s. 281.35 (4) applies to a proposed high capacity well, the department shall include in the approval conditions that ensure that the high capacity well complies with
s. 281.35 (4) to
(6).
281.34(5)(e)2.
2. The department shall include in the approval for each high capacity well requirements that the owner identify the location of the high capacity well and submit an annual pumping report.
281.34(6)
(6) Preexisting high capacity wells. 281.34(6)(a)(a) The owner of a high capacity well for which the department issued an approval under s.
281.17 (1), 2001 stats., shall provide to the department information concerning the location of the well and an annual pumping report.
281.34(6)(b)
(b) The department shall promulgate rules specifying the date and method by which owners of high capacity wells shall comply with
par. (a).
281.34(7)
(7) Modifying and rescinding approvals for high capacity wells. The approval of a high capacity well issued under this section or under s.
281.17 (1), 2001 stats., remains in effect unless the department modifies or rescinds the approval because the high capacity well or the use of the high capacity well is not in conformance with standards or conditions applicable to the approval of the high capacity well.
281.34(8)(a)(a) The department shall promulgate rules identifying class I, class II, and class III trout streams for the purposes of this section. The department shall identify as a class I trout stream a stream or portion of a stream with a self-sustaining population of trout. The department shall identify as a class II trout stream a stream or portion of a stream that contains a population of trout made up of one or more age groups, above the age one year, in sufficient numbers to indicate substantial survival from one year to the next but in which stocking is necessary to fully utilize the available trout habitat or to sustain the fishery. The department shall identify as a class III trout stream a stream or portion of a stream that has marginal trout habitat with no natural reproduction of trout occurring, requiring annual stocking of trout to provide trout fishing, and generally without carryover of trout from one year to the next. In the rules under this paragraph, the department shall identify any class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history.
281.34(8)(b)
(b) The department shall create accurate images of groundwater protection areas.
281.34(8)(c)
(c) A person who proposes to construct a high capacity well may request the department to determine whether the proposed location of the high capacity well is within a groundwater protection area.
281.34(8)(d)
(d) The department shall administer a program to mitigate the effects of wells constructed before May 7, 2004, that are located in groundwater protection areas. Mitigation may include abandonment of wells and replacement of wells, if necessary, and management strategies. Under the mitigation program, the department may order the owner of a well constructed before May 7, 2004, that is located in a groundwater protection area to undertake mitigation but only if the department provides funding for the full cost of the mitigation, except that full funding is not required if the department is authorized under
ch. 280 to require the well to be abandoned because of issues regarding public health.
281.34(9)(a)(a) The department shall, by rule, designate 2 groundwater management areas including and surrounding Brown County and Waukesha County consisting of the entire area of each city, village, and town at least a portion of which is within the area in which, on May 7, 2004, the groundwater potentiometric surface has been reduced 150 feet or more from the level at which the potentiometric surface would be if no groundwater had been pumped.
281.34(9)(b)
(b) The department shall assist local governmental units and regional planning commissions in groundwater management areas designated under
par. (a) by providing advice, incentives, and funding for research and planning related to groundwater management.
281.34(9)(d)
(d) If the department promulgates rules under
par. (c) and the rules require mitigation in the same or a similar manner as under
sub. (8) (d), the department may not require mitigation for a well under the rules unless the department provides funding for the full cost of the mitigation, except that full funding is not required if the department is authorized under
ch. 280 to require the well to be abandoned because of issues regarding public health.
281.34(10)
(10) Research and monitoring. To aid in the administration of this section the department shall, with the advice of the groundwater coordinating council, conduct monitoring and research related to all of the following:
281.34 Cross-reference
Cross-reference: See also ch.
NR 820, Wis. adm. code.
281.34 Annotation
Through ss. 281.11 and 281.12, the legislature has delegated the state's public trust duties to the DNR in the context of its regulation of high capacity wells and their potential effect on navigable waters. For all proposed high capacity wells, the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application, which provides the DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state. Lake Beulah Management District v. DNR,
2011 WI 54,
335 Wis. 2d 47,
799 N.W.2d 73,
08-3170.
281.34 Annotation
There is nothing in either s. 281.34 or 281.35 that limits the DNR's authority to consider the environmental impacts of a proposed high capacity well, nor is there any language in subchapter II of Wis. Stat. ch. 281 that requires the DNR to issue a permit for a well if the statutory requirements are met and no formal review or findings are required. There being no language expressly revoking or limiting the DNR's authority and general duty to protect and manage waters of the state, the DNR retains such authority and general duty to consider whether a proposed high capacity well may impact waters of the state. Lake Beulah Management District v. DNR,
2011 WI 54,
335 Wis. 2d 47,
799 N.W.2d 73,
08-3170.
