Chapter 281

281.343(4L)(a) (a) Proposals for exceptions subject to council review shall be submitted by the originating party to the council for council review, and where applicable, to the regional body for concurrent review.

281.343(4L)(b) (b) The council shall review and take action on proposals in accordance with this compact and the standard of review and decision. The council shall not take action on a proposal subject to regional review pursuant to this compact unless the proposal shall have been first submitted to and reviewed by the regional body. The council shall consider any findings resulting from such review.

281.343(4m) (4m) Water management and regulation; prohibition of new or increased diversions. All new or increased diversions are prohibited, except as provided for in sub. (4n).

281.343(4n) (4n) Water management and regulation; exceptions to the prohibition of diversions.

281.343(4n)(a) (a) Straddling communities. A proposal to transfer water to an area within a straddling community but outside the basin or outside the source Great Lake watershed shall be excepted from the prohibition against diversions and be managed and regulated by the originating party provided that, regardless of the volume of water transferred, all of the water so transferred shall be used solely for public water supply purposes within the straddling community, and:

281.343(4n)(a)1. 1. All water withdrawn from the basin shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:

281.343(4n)(a)1.a. a. Is part of a water supply or wastewater treatment system that combines water from inside and outside of the basin;

281.343(4n)(a)1.b. b. Is treated to meet applicable water quality discharge standards and to prevent the introduction of invasive species into the basin;

281.343(4n)(a)1.c. c. Maximizes the portion of water returned to the source watershed as basin water and minimizes the surface water or groundwater from outside the basin;

281.343(4n)(a)2. 2. If the proposal results from a new or increased withdrawal of 100,000 gallons per day or greater average over any 90-day period, the proposal shall also meet the exception standard; and

281.343(4n)(a)3. 3. If the proposal results in a new or increased consumptive use of 5,000,000 gallons per day or greater average over any 90-day period, the proposal shall also undergo regional review.

281.343(4n)(b) (b) Intrabasin transfer. A proposal for an intrabasin transfer that would be considered a diversion under this compact, and not already excepted pursuant to par. (a), shall be excepted from the prohibition against diversions, provided that:

281.343(4n)(b)1. 1. If the proposal results from a new or increased withdrawal of less than 100,000 gallons per day average over any 90-day period, the proposal shall be subject to management and regulation at the discretion of the originating party.

281.343(4n)(b)2. 2. If the proposal results from a new or increased withdrawal of 100,000 gallons per day or greater average over any 90-day period and if the consumptive use resulting from the withdrawal is less than 5,000,000 gallons per day average over any 90-day period:

281.343(4n)(b)2.a. a. The proposal shall meet the exception standard and be subject to management and regulation by the originating party, except that the water may be returned to another Great Lake watershed rather than the source watershed;

281.343(4n)(b)2.b. b. The applicant shall demonstrate that there is no feasible, cost-effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies; and

281.343(4n)(b)2.c. c. The originating party shall provide notice to the other parties prior to making any decision with respect to the proposal.

281.343(4n)(b)3. 3. If the proposal results in a new or increased consumptive use of 5,000,000 gallons per day or greater average over any 90-day period:

281.343(4n)(b)3.a. a. The proposal shall be subject to management and regulation by the originating party and shall meet the exception standard, ensuring that water withdrawn shall be returned to the source watershed;

281.343(4n)(b)3.b. b. The applicant shall demonstrate that there is no feasible, cost-effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies;

281.343(4n)(b)3.c. c. The proposal undergoes regional review; and

281.343(4n)(b)3.d. d. The proposal is approved by the council. Council approval shall be given unless one or more council members vote to disapprove.

281.343(4n)(c) (c) Straddling counties.

281.343(4n)(c)1. 1. A proposal to transfer water to a community within a straddling county that would be considered a diversion under this compact shall be excepted from the prohibition against diversions, provided that it satisfies all of the following conditions:

281.343(4n)(c)1.a. a. The water shall be used solely for the public water supply purposes of the community within a straddling county that is without adequate supplies of potable water;

281.343(4n)(c)1.b. b. The proposal meets the exception standard, maximizing the portion of water returned to the source watershed as basin water and minimizing the surface water or groundwater from outside the basin;

281.343(4n)(c)1.c. c. The proposal shall be subject to management and regulation by the originating party, regardless of its size;

281.343(4n)(c)1.d. d. There is no reasonable water supply alternative within the basin in which the community is located, including conservation of existing water supplies;

281.343(4n)(c)1.e. e. Caution shall be used in determining whether or not the proposal meets the conditions for this exception. This exception should not be authorized unless it can be shown that it will not endanger the integrity of the basin ecosystem;

281.343(4n)(c)1.f. f. The proposal undergoes regional review; and

281.343(4n)(c)1.g. g. The proposal is approved by the council. Council approval shall be given unless one or more council members vote to disapprove.

281.343(4n)(c)2. 2. A proposal must satisfy all of the conditions listed above. Further, substantive consideration will also be given to whether or not the proposal can provide sufficient scientifically based evidence that the existing water supply is derived from groundwater that is hydrologically interconnected to waters of the basin.

281.343(4n)(d) (d) Exception standard. Proposals subject to management and regulation in this subsection shall be declared to meet this exception standard and may be approved as appropriate only when the following criteria are met:

281.343(4n)(d)1. 1. The need for all or part of the proposed exception cannot be reasonably avoided through the efficient use and conservation of existing water supplies;

281.343(4n)(d)2. 2. The exception will be limited to quantities that are considered reasonable for the purposes for which it is proposed;

281.343(4n)(d)3. 3. All water withdrawn shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:

281.343(4n)(d)3.a. a. Is part of a water supply or wastewater treatment system that combines water from inside and outside of the basin; and

281.343(4n)(d)3.b. b. Is treated to meet applicable water quality discharge standards and to prevent the introduction of invasive species into the basin;

281.343(4n)(d)4. 4. The exception will be implemented so as to ensure that it will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources of the basin with consideration given to the potential cumulative impacts of any precedent-setting consequences associated with the proposal;

281.343(4n)(d)5. 5. The exception will be implemented so as to incorporate environmentally sound and economically feasible water conservation measures to minimize water withdrawals or consumptive use;

281.343(4n)(d)6. 6. The exception will be implemented so as to ensure that it is in compliance with all applicable municipal, state, and federal laws as well as regional interstate and international agreements, including the Boundary Waters Treaty of 1909; and

281.343(4n)(d)7. 7. All other applicable criteria in this subsection have also been met.

281.343(4p) (4p) Water management and regulation; management and regulation of new or increased withdrawals and consumptive uses.

281.343(4p)(a) (a) Within 5 years of the effective date of this compact, each party shall create a program for the management and regulation of new or increased withdrawals and consumptive uses by adopting and implementing measures consistent with the decision-making standard. Each party, through a considered process, shall set and may modify threshold levels for the regulation of new or increased withdrawals in order to assure an effective and efficient water management program that will ensure that uses overall are reasonable, that withdrawals overall will not result in significant impacts to the waters and water dependent natural resources of the basin, determined on the basis of significant impacts to the physical, chemical, and biological integrity of source watersheds, and that all other objectives of the compact are achieved. Each party may determine the scope and thresholds of its program, including which new or increased withdrawals and consumptive uses will be subject to the program.

281.343(4p)(b) (b) Any party that fails to set threshold levels that comply with par. (a) any time before 10 years after the effective date of this compact shall apply a threshold level for management and regulation of all new or increased withdrawals of 100,000 gallons per day or greater average in any 90-day period.

281.343(4p)(c) (c) The parties intend programs for new or increased withdrawals and consumptive uses to evolve as may be necessary to protect basin waters. Pursuant to sub. (3) (d), the council, in cooperation with the provinces, shall periodically assess the water management programs of the parties. Such assessments may produce recommendations for the strengthening of the programs, including, without limitation, establishing lower thresholds for management and regulation in accordance with the decision-making standard.

281.343(4r) (4r) Water management and regulation; decision-making standard. Proposals subject to management and regulation in sub. (4p) shall be declared to meet this decision-making standard and may be approved as appropriate only when the following criteria are met:

281.343(4r)(a) (a) All water withdrawn shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use;

281.343(4r)(b) (b) The withdrawal or consumptive use will be implemented so as to ensure that the proposal will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources and the applicable source watershed;

281.343(4r)(c) (c) The withdrawal or consumptive use will be implemented so as to incorporate environmentally sound and economically feasible water conservation measures;

281.343(4r)(d) (d) The withdrawal or consumptive use will be implemented so as to ensure that it is in compliance with all applicable municipal, state, and federal laws as well as regional interstate and international agreements, including the Boundary Waters Treaty of 1909; and

281.343(4r)(e) (e) The proposed use is reasonable, based upon a consideration of the following factors:

281.343(4r)(e)1. 1. Whether the proposed withdrawal or consumptive use is planned in a fashion that provides for efficient use of the water and will avoid or minimize the waste of water;

281.343(4r)(e)2. 2. If the proposal is for an increased withdrawal or consumptive use, whether efficient use is made of existing water supplies;

281.343(4r)(e)3. 3. The balance between economic development, social development, and environmental protection of the proposed withdrawal and use and other existing or planned withdrawals and water uses sharing the water source;

281.343(4r)(e)4. 4. The supply potential of the water source, considering quantity, quality, and reliability and safe yield of hydrologically interconnected water sources;

281.343(4r)(e)5. 5. The probable degree and duration of any adverse impacts caused or expected to be caused by the proposed withdrawal and use, under foreseeable conditions, to other lawful consumptive or nonconsumptive uses of water or to the quantity or quality of the waters and water dependent natural resources of the basin, and the proposed plans and arrangements for avoidance or mitigation of such impacts; and

281.343(4r)(e)6. 6. If a proposal includes restoration of hydrologic conditions and functions of the source watershed, the party may consider that.

281.343(4t) (4t) Water management and regulation; applicability.

281.343(4t)(a) (a) Minimum standard. This standard of review and decision shall be used as a minimum standard. Parties may impose a more restrictive decision-making standard for withdrawals under their authority. It is also acknowledged that although a proposal meets the standard of review and decision it may not be approved under the laws of the originating party that has implemented more restrictive measures.

281.343(4t)(b) (b) Baseline.

281.343(4t)(b)1. 1. To establish a baseline for determining a new or increased diversion, consumptive use, or withdrawal, each party shall develop either or both of the following lists for the party’s jurisdiction:

281.343(4t)(b)1.a. a. A list of existing withdrawal approvals as of the effective date of the compact.

281.343(4t)(b)1.b. b. A list of the capacity of existing systems as of the effective date of this compact. The capacity of the existing systems should be presented in terms of withdrawal capacity, treatment capacity, distribution capacity, or other capacity limiting factors. The capacity of the existing systems must represent the state of the systems. Existing capacity determinations shall be based upon approval limits or the most restrictive capacity information.

281.343(4t)(b)2. 2. For all purposes of this compact, volumes of diversions, consumptive uses, or withdrawals of water set forth in the lists prepared by each party in accordance with this paragraph shall constitute the baseline volume.

281.343(4t)(b)3. 3. The lists shall be furnished to the regional body and the council within one year of the effective date of this compact.

281.343(4t)(c) (c) Timing of additional applications. Applications for new or increased withdrawals, consumptive uses, or exceptions shall be considered cumulatively within 10 years of any application.

281.343(4t)(d) (d) Change of ownership. Unless a new owner proposes a project that shall result in a proposal for a new or increased diversion or consumptive use subject to regional review or council approval, the change of ownership in and of itself shall not require regional review or council approval.

281.343(4t)(e) (e) Groundwater. The basin surface water divide shall be used for the purpose of managing and regulating new or increased diversions, consumptive uses, or withdrawals of surface water and groundwater.

281.343(4t)(f) (f) Withdrawal systems. The total volume of surface water and groundwater resources that supply a common distribution system shall determine the volume of a withdrawal, consumptive use, or diversion.

281.343(4t)(g) (g) Connecting channels. The watershed of each Great Lake shall include its upstream and downstream connecting channels.

281.343(4t)(h) (h) Transmission in water lines. Transmission of water within a line that extends outside the basin as it conveys water from one point to another within the basin shall not be considered a diversion if none of the water is used outside the basin.

281.343(4t)(i) (i) Hydrologic units. The Lake Michigan and Lake Huron watersheds shall be considered to be a single hydrologic unit and watershed.

281.343(4t)(j) (j) Bulk water transfer. A proposal to withdraw water and to remove it from the basin in any container greater than 5.7 gallons shall be treated under this compact in the same manner as a proposal for a diversion. Each party shall have the discretion, within its jurisdiction, to determine the treatment of proposals to withdraw water and to remove it from the basin in any container of 5.7 gallons or less.

281.343(4v) (4v) Water management and regulation; exemptions. Withdrawals from the basin for the following purposes are exempt from the requirements of subs. (4) to (4z):

281.343(4v)(a) (a) To supply vehicles, including vessels and aircraft, whether for the needs of the persons or animals being transported or for ballast or other needs related to the operation of the vehicles.

281.343(4v)(b) (b) To use in a noncommercial project on a short-term basis for fire fighting, humanitarian, or emergency response purposes.

281.343(4x) (4x) Water management and regulation; U.S. Supreme Court decree in Wisconsin et al. v. Illinois et al.

281.343(4x)(a) (a) Notwithstanding any terms of this compact to the contrary, with the exception of par. (e), current, new, or increased withdrawals, consumptive uses, and diversions of basin water by the state of Illinois shall be governed by the terms of the United States Supreme Court decree in Wisconsin et al. v. Illinois et al. and shall not be subject to the terms of this compact nor any rules or regulations promulgated pursuant to this compact. This means that, with the exception of par. (e), for purposes of this compact, current, new, or increased withdrawals, consumptive uses, and diversions of basin water within the state of Illinois shall be allowed unless prohibited by the terms of the United States Supreme Court decree in Wisconsin et al. v. Illinois et al.

281.343(4x)(b) (b) The parties acknowledge that the United States Supreme Court decree in Wisconsin et al. v. Illinois et al. shall continue in full force and effect, that this compact shall not modify any terms thereof, and that this compact shall grant the parties no additional rights, obligations, remedies, or defenses thereto. The parties specifically acknowledge that this compact shall not prohibit or limit the state of Illinois in any manner from seeking additional basin water as allowed under the terms of the United States Supreme Court decree in Wisconsin et al. v. Illinois et al., any other party from objecting to any request by the state of Illinois for additional basin water under the terms of said decree, or any party from seeking any other type of modification to said decree. If an application is made by any party to the Supreme Court of the United States to modify said decree, the parties to this compact who are also parties to the decree shall seek formal input from the Canadian Provinces of Ontario and Quebec with respect to the proposed modification, shall use best efforts to facilitate the appropriate participation of said provinces in the proceedings to modify the decree, and shall not unreasonably impede or restrict such participation.

281.343(4x)(c) (c) With the exception of par. (e), because current, new, or increased withdrawals, consumptive uses, and diversions of basin water by the state of Illinois are not subject to the terms of this compact, the state of Illinois is prohibited from using any term of this compact, including sub. (4n), to seek new or increased withdrawals, consumptive uses, or diversions of basin water.

281.343(4x)(d) (d) With the exception of par. (e), because subs. (4d), (4f), (4h), (4j), (4L), (4m), (4n), (4p), (4r), (4t) (a), (b), (c), (d), (f), and (j), and (4v) all relate to current, new, or increased withdrawals, consumptive uses, and diversions of basin waters, said provisions do not apply to the state of Illinois. All other provisions of this compact not listed in the preceding sentence shall apply to the state of Illinois, including the water conservation programs provision of sub. (4b).

281.343(4x)(e) (e) In the event of a proposal for a diversion of basin water for use outside the territorial boundaries of the parties to this compact, decisions by the state of Illinois regarding such a proposal would be subject to all terms of this compact, except pars. (a), (c), and (d).

281.343(4x)(f) (f) For purposes of the state of Illinois’ participation in this compact, the entirety of this subsection is necessary for the continued implementation of this compact and, if severed, this compact shall no longer be binding on or enforceable by or against the state of Illinois.

281.343(4z) (4z) Water management and regulation; assessment of cumulative impacts.

281.343(4z)(a) (a) The parties in cooperation with the provinces shall collectively conduct within the basin, on a lake watershed and St. Lawrence River basin basis, a periodic assessment of the cumulative impacts of withdrawals, diversions, and consumptive uses from the waters of the basin, every 5 years or each time the incremental basin water losses reach 50,000,000 gallons per day average in any 90-day period in excess of the quantity at the time of the most recent assessment, whichever comes first, or at the request of one or more of the parties. The assessment shall form the basis for a review of the standard of review and decision, council and party regulations, and their application. This assessment shall:

281.343(4z)(a)1. 1. Utilize the most current and appropriate guidelines for such a review, which may include but not be limited to council on environmental quality and environment Canada guidelines;

281.343(4z)(a)2. 2. Give substantive consideration to climate change or other significant threats to basin waters and take into account the current state of scientific knowledge, or uncertainty, and appropriate measures to exercise caution in cases of uncertainty if serious damage may result; and

281.343(4z)(a)3. 3. Consider adaptive management principles and approaches, recognizing, considering, and providing adjustments for the uncertainties in, and evolution of, science concerning the basin’s water resources, watersheds, and ecosystems, including potential changes to basin-wide processes, such as lake level cycles and climate.