Chapter 281

281.35(5)(c)2. 2. Notify the applicant of any modifications necessary to qualify the application for approval.

281.35(5)(d) (d) Grounds for approval. Before approving an application, the department shall determine all of the following:

281.35(5)(d)1. 1. That no public water rights in navigable waters will be adversely affected.

281.35(5)(d)2. 2. That the proposed withdrawal does not conflict with any applicable plan for future uses of the waters of the state, including plans developed under ss. 281.12 (1) and 283.83.

281.35(5)(d)3. 3. That both the applicant’s current water use, if any, and the applicant’s proposed plans for withdrawal, transportation, development and use of water resources incorporate reasonable conservation practices.

281.35(5)(d)4. 4. That the proposed withdrawal and uses will not have a significant adverse impact on the environment and ecosystem of the Great Lakes basin or the upper Mississippi River basin.

281.35(5)(d)5. 5. That the proposed withdrawal and uses are consistent with the protection of public health, safety and welfare and will not be detrimental to the public interest.

281.35(5)(d)6. 6. That the proposed withdrawal will not have a significant detrimental effect on the quantity and quality of the waters of the state.

281.35(5)(d)7. 7. If the proposed withdrawal will result in an interbasin diversion, all of the following:

281.35(5)(d)7.a. a. That each state or province to which the water will be diverted has developed and is implementing a plan to manage and conserve its own water quantity resources, and that further development of its water resources is impracticable or would have a substantial adverse economic, social or environmental impact.

281.35(5)(d)7.b. b. That granting the application will not impair the ability of the Great Lakes basin or upper Mississippi River basin to meet its own water needs.

281.35(5)(d)7.c. c. That the interbasin diversion alone, or in combination with other water losses, will not have a significant adverse impact on lake levels, water use, the environment or the ecosystem of the Great Lakes basin or upper Mississippi River basin.

281.35(5)(d)7.d. d. That the proposed withdrawal is consistent with all applicable federal, regional and interstate water resources plans.

281.35(5)(e) (e) Right to hearing. Any person who receives notice of a denial or modification requirement under par. (c) is entitled to a contested case hearing under ch. 227 if the person requests the hearing within 30 days after receiving the notice.

281.35(5)(f) (f) The department shall charge each applicant for an approval under this subsection the fee established under sub. (10) (a) 5. All moneys collected under this paragraph shall be credited to the general fund.

281.35(6) (6) Approval.

281.35(6)(a) (a) Issuance; contents. Subject to par. (am), if an application is approved under sub. (5), the department shall modify the applicant’s existing approval or shall issue a new approval that specifies all of the following:

281.35(6)(a)1. 1. The location of the withdrawal.

281.35(6)(a)2. 2. The authorized base level of water loss from the withdrawal.

281.35(6)(a)3. 3. The dates on which or seasons during which water may be withdrawn.

281.35(6)(a)4. 4. The uses for which water may be withdrawn.

281.35(6)(a)5. 5. The amount and quality of return flow required and the place of discharge.

281.35(6)(a)6. 6. The requirements for reporting volumes and rates of withdrawal and any other date specified by the department.

281.35(6)(a)7. 7. Any other conditions, limitations and restrictions that the department determines are necessary to protect the environment and the public health, safety and welfare and to ensure the conservation and proper management of the waters of the state.

281.35(6)(a)8. 8. Any requirements for metering, surveillance and reporting that the department determines are necessary to ensure compliance with other conditions, limitations or restrictions of the approval.

281.35(6)(a)9. 9. If the department determines that a time limit is necessary, the date on which approval for the withdrawal expires.

281.35(6)(am) (am) Water loss permit. If the department approves an application under sub. (5) for a withdrawal that is covered by a permit under s. 281.344 (5) or s. 281.346 (5) and another approval, the department shall modify the permit under s. 281.344 (5) or 281.346 (5), rather than the other approval, to specify the matters under par. (a).

281.35(6)(b) (b) Review. The department shall review each approval prior to the expiration date specified under par. (a) 9., if any, or within 5 years from the date of issuance and at least every 5 years thereafter.

281.35(6)(c) (c) Modification by department. The department may at any time propose modifications of the approval or additional conditions, limitations or restrictions determined to be necessary to ensure continued compliance with this section or with any other applicable statute or rule.

281.35(6)(d) (d) Revocation. If the department determines that a person to whom an approval has been issued would be unable under any conditions, limitations or restrictions to comply with this section or another applicable statute or rule, it shall revoke the approval.

281.35(6)(e) (e) Request for modification. A person to whom an approval has been issued or any person adversely affected by a condition, limitation or restriction of an approval may request that the department modify a condition, limitation or restriction of an approval.

281.35(6)(f) (f) Notice; right to hearing. The department shall notify the person to whom the approval has been issued and any other person who has in writing requested notice of the receipt of a request to modify an approval or of the department’s intent to modify or revoke an approval. The person to whom the approval is issued is entitled to a contested case hearing under ch. 227 before a revocation or modification takes effect. Any other person who may be adversely affected by a proposed modification is entitled to a contested case hearing under ch. 227.

281.35(6)(g) (g) Fees. The department shall periodically collect from each person whose application under this subsection is approved the fee established under sub. (10) (a) 5. All moneys collected under this paragraph shall be credited to the general fund.

281.35(7) (7) Emergency order. The department may, without a prior hearing, order a person to whom an approval is issued to immediately stop a withdrawal if the department determines that there is a danger of imminent harm to the public health, safety or welfare, to the environment or to the water resources or related land resources of this state. The order shall specify the date on which the withdrawal must be stopped and the date, if any, on which it may be resumed. The order shall notify the person that the person may request a contested case hearing under ch. 227. The hearing shall be held as soon as practicable after receipt of a request for a hearing. An emergency order remains in effect pending the result of the hearing.

281.35(9) (9) Amendment of coastal management program.

281.35(9)(a) (a) The Wisconsin coastal management council, established under executive order number 62, dated August 2, 1984, shall amend this state’s coastal management program submitted to the U.S. secretary of commerce under 16 USC 1455, to incorporate the requirements of this section and, before the compact’s effective date, s. 281.344 and the findings and purposes specified in 1985 Wisconsin Act 60, section 1, as they apply to the water resources of the Great Lakes basin, and shall formally submit the proposed amendments to the U.S. secretary of commerce.

281.35(9)(b) (b) After approval of the amendments submitted to the U.S. secretary of commerce under par. (a), the Wisconsin coastal management council shall, when conducting federal consistency reviews under 16 USC 1456 (c), consider the requirements, findings and purposes specified under par. (a), if applicable.

281.35(9)(c) (c) If the department issues an approval for a withdrawal to which this section applies, and the withdrawal is subject to a federal consistency review under 16 USC 1456 (c), the Wisconsin coastal management council shall certify that the withdrawal is consistent with this state’s coastal management program.

281.35(9)(d) (d) This subsection does not apply after the compact’s effective date.

281.35(10) (10) Rule making; fees.

281.35(10)(a) (a) The department shall promulgate rules establishing all of the following:

281.35(10)(a)1. 1. The procedures for reviewing and acting on applications under subs. (4) and (5).

281.35(10)(a)2. 2. Requirements for reporting volumes and rates of withdrawals.

281.35(10)(a)3. 3. The method for determining what portion of a withdrawal constitutes a consumptive use.

281.35(10)(a)5. 5. A graduated schedule for the fees required under subs. (5) (f) and (6) (g) and a schedule for collecting the fees under sub. (6) (g) periodically.

281.35(10)(b) (b) The department may promulgate any other rule necessary to implement this section.

281.35(11) (11) Cooperation with other states and provinces. Before the compact’s effective date, the department shall do all of the following:

281.35(11)(a) (a) Cooperate with the other Great Lakes states and provinces to develop and maintain a common base of information on the use and management of the water resources of the Great Lakes basin and to establish systematic arrangements for the exchange of such information.

281.35(11)(b) (b) Collect and maintain information regarding the locations, types and quantities of water use, including water losses, in a form that is comparable to the form used by the other Great Lakes states and provinces.

281.35(11)(c) (c) Collect, maintain and exchange information on current and projected future water needs with the other Great Lakes states and provinces.

281.35(11)(d) (d) Cooperate with the other Great Lakes states and provinces in developing a long-term plan for developing, conserving and managing the water resources of the Great Lakes basin.

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) (12) Miscellaneous provisions.

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 History History: 1985 a. 60; 1987 a. 27, 186; 1987 a. 403 s. 256; 1989 a. 31; 1989 a. 56 s. 259; 1991 a. 32; 1991 a. 39; 1995 a. 227 s. 400; Stats., 1995 s. 281.35; 1999 a. 150 s. 672; 2003 a. 310; 2007 a. 96, 227; 2009 a. 180; 2017 a. 134.

281.35 Note NOTE: Section 1 of 1985 Wis. 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 Through ss. 281.11 and 281.12, the legislature has delegated the state’s public trust duties to the Department of Natural Resources (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 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 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.

281.35 Annotation There is nothing in either this section or s. 281.34 that limits the Department of Natural Resources’ (DNR) authority to consider the environmental impacts of a proposed high capacity well, nor is there any language in subch. II of this chapter that requires 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 DNR’s authority and general duty to protect and manage waters of the state, 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.

281.35 Annotation The Department of Natural Resources (DNR) is required to consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state. Upon what evidence, and under what circumstances, that duty is triggered is a highly fact-specific matter that depends upon the information submitted by the well owner in the well permit application and any other information submitted to DNR decision makers. DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application such that it has an obligation to consider environmental concerns. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170.

281.36 281.36 Permits for discharges into wetlands; mitigation.

281.36(1) (1) Definitions. In this section:

281.36(1)(a) (a) “Additional federal law or interpretation” means any of the following:

281.36(1)(a)1. 1. An amendment to 33 USC 1344 (f) that becomes effective after January 9, 2001.

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)(ad) (ad) “Bank service area” means the geographic area corresponding to the HUC 6 within which impacts to a wetland from a discharge can be mitigated at a specific mitigation bank as determined in an agreement between the department and the U.S. army corps of engineers and referenced in a mitigation banking instrument under sub. (3w).

281.36(1)(ae) (ae) “Basin” means the Lake Michigan, Lake Superior, or Mississippi River basin.

281.36(1)(am) (am) “Demonstrable economic public benefit” means an economic benefit to the community or region that is measurable, such as increased access to natural resources, local spending by the proposed project, employment, or community investment.

281.36(1)(b) (b) “Existing federal law or interpretation” means any of the following:

281.36(1)(b)1. 1. 33 USC 1344 (f), as amended to January 8, 2001.

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)(bd) (bd) “Fill material” has the meaning given in 33 CFR 323.2 (e), as the meaning exists on July 1, 2012.

281.36(1)(bf) (bf) “HUC 6” means a watershed delineated by the U.S. geological survey using a nationwide system based on surface hydrologic features at the 6-digit basin scale (the hydrologic unit code 6).

281.36(1)(bg) (bg) “HUC 8” means a watershed delineated by the U.S. geological survey using a nationwide system based on surface hydrologic features at the 8-digit subbasin scale (the hydrologic unit code 8).

281.36(1)(bj) (bj) “Mitigation” means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.

281.36(1)(bL) (bL) “Mitigation bank” means a system of accounting for wetland loss and compensation that includes one or more sites where wetlands are restored, enhanced, created, or preserved to provide credits to be subsequently applied or purchased in order to compensate for adverse impacts to other wetlands.

281.36(1)(bn) (bn) “Mitigation project” means mitigation of the type specified in sub. (3r) (a) 3.

281.36(1)(br) (br) “Nonfederal wetland” means a wetland that is not subject to federal jurisdiction under 33 USC 1344.

281.36(1)(cp) (cp) “Practicable” means reasonably available and capable of being implemented after taking into consideration cost, site availability, available technology, logistics, and proximity to the proposed project site, in light of the overall purpose and scope of the project.

281.36(1)(ct) (ct) “Small business” has the meaning given in s. 227.114 (1).

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(2m) (2m) Delineation procedures. For purposes of delineating the boundary of a wetland under this section, the procedures contained in the wetlands delineation manual published by the U.S. army corps of engineers shall be used. 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 designates that edition as the one to be used under this subsection.

281.36(3b) (3b) Permit required.