281.11 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.
281.11 Annotation
Although DNR's public trust authority has been expanded by the courts beyond the plain language of the Wisconsin Constitution, s. 227.10 (2m) restricts that authority by withdrawing DNR's ability to implement or enforce any standard, requirement, or threshold, including as a term or condition of a permit issued by the agency, unless explicitly permitted in statute or rule. Neither s. 281.11 or 281.12 explicitly allow DNR to require any term or condition on high capacity well permits. Therefore, the aforementioned ss. 281.11 and 281.12 do not give DNR the authority to require or impose any term or condition absent explicit statutory or rule-based language sanctioning that specific term or condition.
OAG 1-16.
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.
281.11 Annotation
Groundwater: Diminishing Resource, Increasing Conflict. Westerberg. Wis. Law. July/Aug. 2015.
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.
281.12 Annotation
The DNR's general supervision and control over the state's waters is not so sweeping as to authorize the DNR to ban all activities that might adversely affect water quality or to establish limitations for any one specific industry. Rusk County Citizen Action Group, Inc. v. DNR,
203 Wis. 2d 1,
552 N.W.2d 110 (Ct. App. 1996),
95-3125.
281.12 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.
281.12 Annotation
Although DNR's public trust authority has been expanded by the courts beyond the plain language of the Wisconsin Constitution, s. 227.10 (2m) restricts that authority by withdrawing DNR's ability to implement or enforce any standard, requirement, or threshold, including as a term or condition of a permit issued by the agency, unless explicitly permitted in statute or rule. Neither s. 281.11 or 281.12 explicitly allow DNR to require any term or condition on high capacity well permits. Therefore, the aforementioned ss. 281.11 and 281.12 do not give DNR the authority to require or impose any term or condition absent explicit statutory or rule-based language sanctioning that specific term or condition.
OAG 1-16.
281.13
281.13
Surveys and research. 281.13(1)(a)(a) The department is authorized to 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(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;
1997 a. 35.
281.14
281.14
Wisconsin River monitoring and study. 281.14(2)
(2) The department shall conduct a program to monitor and study the introduction of nutrients from point sources and nonpoint sources into the Wisconsin River from the headwaters of the river to the Castle Rock Flowage dam. The department shall seek to do all of the following under this subsection:
281.14(2)(a)
(a) Identify the amounts of nutrients being introduced into the river.
281.14(2)(b)
(b) Characterize and quantify the nutrients, in particular nitrogen and phosphorus, introduced into the river from nonpoint sources relative to climate, land use, soil type, elevation, and drainage.
281.14(2)(c)
(c) Collect water quality information for locations on the river itself and for major tributaries and major impoundments to use in evaluating the biological, physical, and chemical properties of the water and to use as data in watershed and river models.
281.14(2)(d)
(d) Use watershed and river models and the information collected under this subsection and from other sources to forecast the effect on water quality of different methods of reducing the amounts of nutrients introduced into the river.
281.14(2)(e)
(e) Develop tools to use in selecting and implementing methods of reducing the amounts of nutrients introduced into the river.
281.14 History
History: 2009 a. 28;
2013 a. 20.
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(6)
(6) Every 3 years, as part of the review required by
33 USC 1313 (c) (1), the department shall review the water quality standards promulgated under this section and determine whether any existing standards should be modified or new standards should be adopted. The department shall hold a public hearing to receive information and public comment regarding water quality standards promulgated under this section. The department shall publish notice of the hearing on the department's Internet site at least 45 days before the hearing date. The department shall submit the results of a review under this subsection to the federal environmental protection agency.
281.16
281.16
Water quality protection; nonpoint sources. 281.16(1)(a)
(a) “Agricultural facility" means a structure associated with an agricultural practice.
281.16(1)(b)
(b) “Agricultural practice" means beekeeping; commercial feedlots; dairying; egg production; floriculture; fish or fur farming; grazing; livestock raising; orchards; poultry raising; raising of grain, grass, mint and seed crops; raising of fruits, nuts and berries; sod farming; placing land in federal programs in return for payments in kind; owning land, at least 35 acres of which is enrolled in the conservation reserve program under
16 USC 3831 to
3836; and vegetable raising.
281.16(1)(br)
(br) “Covered municipality" means a municipality that has been issued an individual municipal separate storm sewer permit under
s. 283.33 or that is covered by a general municipal separate storm sewer permit under
s. 283.35.
281.16(1)(c)
(c) “Livestock operation" means a feedlot or other facility or a pasture where animals are fed, confined, maintained or stabled.
281.16(1)(e)
(e) “Nonpoint source" means a facility or practice that causes, or has the potential to cause, nonpoint source water pollution.
281.16(1)(f)
(f) “Nonpoint source water pollution" means pollution of waters of the state that does not result from a point source, as defined in
s. 283.01 (12).
281.16(1)(g)
(g) “Water quality management area" means any of the following:
281.16(1)(g)1.
1. The area within 1,000 feet from the ordinary high-water mark of navigable waters that consist of a lake, pond or flowage, except that, for a navigable water that is a glacial pothole lake, “water quality management area" means the area within 1,000 feet from the high-water mark of the lake.
281.16(1)(g)2.
2. The area within 300 feet from the ordinary high-water mark of navigable waters that consist of a river or stream.
281.16(1)(g)3.
3. A site that is susceptible to groundwater contamination or that has the potential to be a direct conduit for contamination to reach groundwater.
281.16(2)
(2) Nonpoint sources that are not agricultural. 281.16(2)(a)(a) The department shall, by rule, prescribe performance standards for nonpoint sources that are not agricultural facilities or agricultural practices. The performance standards shall be designed to achieve water quality standards by limiting nonpoint source water pollution.
281.16(2)(am)1.c.
c. “New development" means development resulting from the conversion of previously undeveloped land or agricultural land.
281.16(2)(am)1.d.
d. “Redevelopment" means development that replaces older development.
281.16(2)(am)2.
2. Except as provided in
subd. 3., the department may not enforce a provision in a rule that establishes a date by which a covered municipality must implement methods to achieve a specified reduction in the level of total suspended solids carried by runoff, if the provision requires the covered municipality to achieve a reduction of more than 20 percent. This subdivision does not apply to total suspended solids carried by runoff from new development or redevelopment in a covered municipality.
281.16(2)(am)3.
3. If a covered municipality has achieved, on July 1, 2011, a reduction of more than 20 percent of total suspended solids carried by runoff, the municipality shall, to the maximum extent practicable, maintain all of the best management practices that the municipality has implemented on or before July 1, 2011, to achieve that reduction.
281.16(2)(b)
(b) The department shall, by rule, specify a process for the development and dissemination of technical standards to implement the performance standards under
par. (a).
281.16(2)(c)
(c) If a covered municipality has obtained all permits required for the construction of a storm water management pond in an artificial water body, whether navigable or nonnavigable, the department may not prohibit the construction of the storm water management pond as a method by which the covered municipality may achieve compliance with performance standards under
par. (a) or with an approved total maximum daily load under
33 USC 1313 (d) (1) (C). The department shall give credit to the covered municipality for any pollutant reduction achieved by the storm water management pond in determining compliance with performance standards specified in a permit under
s. 283.33 (1) (b),
(c),
(cg), or
(cr) or an approved total maximum daily load under
33 USC 1313 (d).
281.16(3)
(3) Nonpoint sources that are agricultural. 281.16(3)(a)(a) The department of natural resources, in consultation with the department of agriculture, trade and consumer protection, shall promulgate rules prescribing performance standards and prohibitions for agricultural facilities and agricultural practices that are nonpoint sources. The performance standards and prohibitions shall be designed to achieve water quality standards by limiting nonpoint source water pollution. At a minimum, the prohibitions shall include all of the following:
281.16(3)(a)1.
1. That a livestock operation may have no overflow of manure storage structures.
281.16(3)(a)2.
2. That a livestock operation may have no unconfined manure pile in a water quality management area.
281.16(3)(a)3.
3. That a livestock operation may have no direct runoff from a feedlot or stored manure into the waters of the state.
281.16(3)(a)4.
4. That a livestock operation may not allow unlimited access by livestock to waters of the state in a location where high concentrations of animals prevent the maintenance of adequate sod cover.
281.16(3)(b)
(b) The department of agriculture, trade and consumer protection, in consultation with the department of natural resources, shall promulgate rules prescribing conservation practices to implement the performance standards and prohibitions under
par. (a) and specifying a process for the development and dissemination of technical standards to implement the performance standards and prohibitions under
par. (a).
281.16(3)(c)
(c) Using the process specified under
par. (b), the department of agriculture, trade and consumer protection shall develop and disseminate technical standards to implement the performance standards and prohibitions under
par. (a). The department of agriculture, trade and consumer protection shall disseminate alternative technical standards for situations in which more than one method exists to implement the performance standards and prohibitions.
281.16(3)(d)
(d) The conservation practices and technical standards under
pars. (b) and
(c) shall at a minimum cover animal waste management, nutrients applied to the soil and cropland sediment delivery.
281.16(3)(e)
(e) An owner or operator of an agricultural facility or practice that is in existence before October 14, 1997, may not be required by this state or a municipality to comply with the performance standards, prohibitions, conservation practices or technical standards under this subsection unless cost-sharing is available, under
s. 92.14 or
281.65 or from any other source, to the owner or operator. For the purposes of this paragraph,
sub. (4) and
ss. 92.07 (2),
92.15 (4) and
823.08 (3) (c) 2., the department of natural resources shall promulgate rules that specify criteria for determining whether cost-sharing is available under
s. 281.65 and the department of agriculture, trade and consumer protection shall promulgate rules that specify criteria for determining whether cost-sharing is available under
s. 92.14 or from any other source. The rules may not allow a determination that cost-sharing is available to meet local regulations under
s. 92.07 (2) or
92.15 that are consistent with or that exceed the performance standards, prohibitions, conservation practices or technical standards under this subsection unless the cost-sharing is at least 70 percent of the cost of compliance or is from 70 percent to 90 percent of the cost of compliance in cases of economic hardship, as defined in the rules.
281.16(4)
(4) Application to animal feeding operations. If the department issues a notice of discharge under
ch. 283 for an animal feeding operation, the performance standards, prohibitions, conservation practices and technical standards under
sub. (3) apply to the animal feeding operation, except that if the animal feeding operation is in existence before October 14, 1997, the performance standards, prohibitions, conservation practices and technical standards only apply if the department determines that cost-sharing is available to the owner or operator of the animal feeding operation under
s. 92.14 or
281.65 or from any other source.
281.16 Cross-reference
Cross-reference: See also chs.
NR 151 and
243, Wis. adm. code.
281.165
281.165
Compliance with water quality standards for wetlands.
