281.33(3)(a)1.a.
a. Activities related to construction site erosion control at sites that have a land disturbance that is one acre or more in area.
281.33(3)(a)1.b.
b. Activities related to construction site erosion control at sites that have a land disturbance that is less than one acre and to which
ss. 101.1206 and
101.653 do not apply.
281.33(3)(a)2.
2. The department, in cooperation with the department of transportation, shall establish by rule uniform statewide 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. Uniform statewide standards for storm water management established under this paragraph are applicable to the state plan under
sub. (2). The department shall require a city, village, town, or county to comply with uniform statewide 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 uniform statewide standards.
281.33(3)(b)
(b) The uniform statewide standards for construction site erosion control at sites described in
par. (a) 1. a. and
b. 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 uniform statewide 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(3)(d)
(d) If the department determines that rules promulgated under
s. 281.16 (2) prescribe performance standards that meet the requirements for establishing uniform statewide standards under this subsection, the department's rules promulgated under
s. 281.16 (2) satisfy the rule-making requirements under this subsection and shall apply as if they were promulgated under this subsection.
281.33(3m)
(3m) Requirements for ordinances. A city, village, town, or county may enact an ordinance regulating the conduct regulated under this section only if the ordinance strictly conforms with uniform statewide standards established under
sub. (3).
281.33(4)
(4) Model ordinances; state plan; distribution. The department shall prepare a model zoning ordinance for construction site erosion control at sites described in
sub. (3) (a) 1. a. and
b. 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 uniformity of regulations, shall prepare model ordinances under
sub. (4), shall extend assistance to municipalities under this section, shall prepare the plan under
sub. (2), shall obtain 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(6)(a)(a) Notwithstanding
subs. (3) and
(3m), a city, village, town, or county may enact and enforce provisions of an ordinance that are stricter than the uniform standards for storm water management established by the department under this section if the stricter provisions are necessary to do any of the following:
281.33(6)(a)2.
2. Comply with federally approved total maximum daily load requirements.
281.33(6)(b)
(b) Subsection (3m) does not apply to provisions of an ordinance enacted by a city, village, town, or county if the provisions of the ordinance regulate storm water management relating to existing development or redevelopment, as defined in NR 151.002, Wis. Adm. Code.
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(5m)
(5m) Consideration of cumulative impacts. No person may challenge an approval, or an application for approval, of a high capacity well based on the lack of consideration of the cumulative environmental impacts of that high capacity well together with existing wells.
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.
