Chapter 281

281.36(13) (13) Parties to a violation.

281.36(13)(a) (a) Whoever is concerned in the commission of a violation of this section for which a forfeiture is imposed is a principal and may be charged and found in violation although he or she did not directly commit the violation and although the person who directly committed it has not been found in violation.

281.36(13)(b) (b) A person is concerned in the commission of the violation if the person does any of the following:

281.36(13)(b)1. 1. Directly commits the violation.

281.36(13)(b)2. 2. Aids and abets the commission of the violation.

281.36(13)(b)3. 3. Is a party to a conspiracy with another to commit the violation or advises, hires, counsels, or otherwise procures any person to commit it.

281.36(13m) (13m) Report to legislature. No later than January 31, 2003, and no later than January 31 of each subsequent odd-numbered year, the department shall submit to the legislature under s. 13.172 (2) a report that provides an analysis of the impact of the implementation of mitigation on wetland resources and on the issuance of permits or other approvals under ss. 59.692, 61.351, 61.353, 62.231, 62.233, 87.30, 281.11 to 281.47 or 281.49 to 281.85 or ch. 30, 31, 283, 289, 291, 292, 293, 295, or 299. The department shall include in its report a discussion of proposals and projects under the property development grant program under s. 23.099.

281.36(14) (14) Penalties.

281.36(14)(a) (a) Except as provided in par. (b), any person who violates any provision of this section shall forfeit not less than $100 nor more than $10,000 for the first offense and shall forfeit not less than $500 nor more than $10,000 upon being found in violation of the same offense a 2nd or subsequent time.

281.36(14)(b) (b) Any person who violates a wetland general permit issued under sub. (3g) shall forfeit not less than $10 nor more than $500 for the first offense and shall forfeit not less than $50 nor more than $500 upon being found in violation of the same offense a 2nd or subsequent time.

281.36(14)(c) (c) A violation of any condition contained in a wetland general permit issued under sub. (3g) is a violation of the statute under which the general permit was issued.

281.36(14)(d) (d) In addition to the forfeitures specified under pars. (a) and (b), a court may order a defendant to abate any nuisance, restore a natural resource, or take, or refrain from taking, any other action as necessary to eliminate or minimize any environmental damage caused by the defendant.

281.36(14)(e) (e) Each day of a continuing violation is a separate offense.

281.36(14)(f) (f) The department may follow the procedures for the issuance of a citation under ss. 23.50 to 23.99 to collect a forfeiture for a violation of this section.

281.36 History History: 2001 a. 6; 2005 a. 253; 2011 a. 118, ss. 43, 45 to 47, 49 to 55, 57 to 118, 122, 123, 127 to 137, 141; 2013 a. 1, 20, 69, 80; 2013 a. 151 s. 27; 2013 a. 166 s. 77; 2013 a. 168, 173; 2015 a. 387; 2017 a. 21, 58, 59, 115, 118, 183; 2017 a. 365 s. 112; 2019 a. 59; 2023 a. 111.

281.36 Cross-reference Cross-reference: See also chs. NR 300, 351, 352, and 353, Wis. adm. code.

281.36 Annotation Once a violation of sub. (2) (a) [now sub. (3b) (b)] is proven, Goode, 219 Wis. 2d 654 (1998), sets forth a rebuttable presumption that the court should grant an injunction. The state is not required to prove particular instances of environmental harm to obtain an injunction. Once a violation is proven, it is the defendant who must establish compelling equitable reasons not to grant injunctive relief. State v. CGIP Lake Partners, LLP, 2013 WI App 122, 351 Wis. 2d 100, 839 N.W.2d 136, 12-2346.

281.36 Annotation Sub. (3n) (b) 5. requires that the Department of Natural Resources (DNR) consider the net positive or negative environmental impact of a proposed project before deciding to issue a wetland-fill permit. This consideration is necessary for DNR to meet the mandate in sub. (3n) (c) 3. that it may issue a wetland-fill permit only if it determines that the proposed project will not result in significant adverse environmental impacts. In this case, the permit stated that DNR lacked sufficient information to enable it to assess the proposed project’s net positive or negative environmental impact. Accordingly, DNR improperly issued the permit without being able to consider the proposed project’s net positive or negative environmental impact, contrary to sub. (3n) (b) 5. Meteor Timber, LLC v. Division of Hearings & Appeals, 2022 WI App 5, 400 Wis. 2d 451, 969 N.W.2d 746, 20-1869.

281.36 Annotation The legislature has set a tight timeline for the Department of Natural Resources (DNR) to process a wetland-fill permit application, and the legislature has mandated that at the end of that timeline DNR must decide to issue or deny the permit and explain in the case of a denial why the permit does not meet statutory standards or is incomplete. The applicant in this case pointed to no statutory language authorizing DNR to issue a permit if it had not received sufficient information within that timeline. In that situation, the legislature has provided that DNR must deny the permit as incomplete, and the applicant may seek administrative and judicial review of that denial or submit a new application with all necessary information. Meteor Timber, LLC v. Division of Hearings & Appeals, 2022 WI App 5, 400 Wis. 2d 451, 969 N.W.2d 746, 20-1869.

281.36 Annotation Sub. (3n) (b) and (c) requires the Department of Natural Resources (DNR) to consider the entirety of a proposed project when addressing a wetland individual permit, not just the wetlands within the proposed project. By its plain meaning, sub. (3n) (c) instructs DNR to determine whether a proposed project will result in significant adverse impacts to wetland functional values and water quality and whether the proposed project will result in other significant adverse environmental consequences. That review necessarily requires DNR to consider impacts beyond the physical footprint of directly impacted wetlands. For example, DNR must consider potential secondary impacts to wetland functional values and the net positive or negative environmental impact of the proposed project. Kohler Co. v. DNR, 2024 WI App 2, 410 Wis. 2d 433, 3 N.W.3d 172, 21-1187.

281.36 Annotation Wisconsin’s Wetland Reform Act. Kent & Lamb. Wis. Law. Feb. 2013.

281.37 281.37 Wetland mitigation grant program.

281.37(1) (1) In this subsection:

281.37(1)(a) (a) “Department land” means land owned by or under easement to the state that is under the jurisdiction of the department and used for one of the purposes specified in s. 23.09 (2) (d).

281.37(1)(b) (b) “Mitigation program” means the wetland mitigation grant program established under sub. (2).

281.37(1)(c) (c) “Nonprofit organization” means an organization that is described in section 501 (c) (3) of the Internal Revenue Code and that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code.

281.37(2) (2) The department shall establish a wetland mitigation grant program under which it awards grants to nonprofit organizations to conduct projects to create, restore, or enhance wetlands under the in lieu fee subprogram in s. 281.36 (3r) (e) on department land as provided in this subsection.

281.37(3) (3) No later than 6 months after March 30, 2018, the department shall identify department land that is appropriate to include in the mitigation program. The department shall identify no less than 25 percent of department land for this purpose. The land identified shall include land in every watershed in the state.

281.37(4) (4) 

281.37(4)(a) (a) No later than 3 months after completion of the land identification stage under sub. (3) or at the beginning of the following fiscal year, whichever is earlier, and no later than July 1 of each subsequent year, the department shall issue a request for proposals from nonprofit organizations for grants to conduct wetland mitigation projects on department land identified under sub. (3). The issuance of each new request for proposal begins a new grant cycle.

281.37(4)(b) (b) The department shall require applications for grants under this section to include all of the following:

281.37(4)(b)1. 1. The scope of the proposed project.

281.37(4)(b)2. 2. A project timeline.

281.37(4)(b)3. 3. If possible, a specification of the functional values or uses listed in s. NR 103.03 (1), Wis. Adm. Code, that the project area does not provide or only sparsely provides.

281.37(4)(b)4. 4. A specification of the functional values or uses listed in s. NR 103.03 (1), Wis. Adm. Code, that the proposed project would create, restore, or enhance.

281.37(4)(b)5. 5. All information required to be submitted for approval to the U.S. army corps of engineers under 33 CFR part 332 and the Wisconsin Wetland Conservation Trust program instrument.

281.37(4)(c) (c) After issuing the request for proposals under par. (a), the department shall accept grant applications on a rolling basis over the course of a fiscal year. The department shall select and announce grant recipients under this subsection at the end of each quarter as funds are available.

281.37(5) (5) 

281.37(5)(a) (a) If an application under sub. (4) is approved, the grantee and the department, in consultation, shall identify all department permits required for the grantee to conduct the project. The department shall waive all permit fees for the grantee in relation to department permits required to conduct the project.

281.37(5)(b) (b) Notwithstanding timelines otherwise established for individual permits, within 60 days of receiving the grantee’s application for an individual permit that is required to conduct the project, the department shall render a decision issuing, denying, or modifying the permit, and the department shall adjust all other deadlines relating to the review of the application accordingly.

281.37(7) (7) 

281.37(7)(a) (a) The department shall pay out a grant under the mitigation program quarterly unless the department determines that more frequent payments are necessary to fulfill the objectives of the grant program. The department shall withhold the final payment until the grantee certifies that the project is complete.

281.37(7)(b) (b) If the grantee fails to certify that the project is complete by the date indicated for completion in its application, the department shall use the remaining unpaid grant amount to either complete the project or contract with or issue a grant to another nonprofit organization to complete the project. An organization that fails to certify completion of a project by the date indicated in its application for completion is not eligible for a new grant under the mitigation program for 2 grant cycles.

281.37(7)(c) (c) The department may agree to a modified deadline for the project if unusual or unforeseen circumstances cause a delay. If the department agrees to a modified deadline, the consequences under par. (b) apply only if the grantee fails to certify that a project is complete by the date indicated in that agreement.

281.37(8) (8) Before 6 months have elapsed after the 5th anniversary of the department’s first issuance of a request for proposals under sub. (4), the department shall submit to the legislature under s. 13.172 (2) a report analyzing the effectiveness of the first 5 years of the mitigation program and making recommendations for changes to the program.

281.37 History History: 2017 a. 183.

subch. IV of ch. 281 SUBCHAPTER IV

WATER AND SEWAGE FACILITIES; SEPTAGE DISPOSAL

281.41 281.41 Approval of plans.

281.41(1) (1) 

281.41(1)(a) (a) Except as provided under sub. (2), every owner within the time prescribed by the department, shall file with the department a certified copy of complete plans of a proposed system or plant or extension thereof, in scope and detail satisfactory to the department, and, if required, of existing systems or plants, and any other information concerning maintenance, operation and other details that the department requires, including the information specified under s. 281.35 (5) (a), if applicable. Material changes with a statement of the reasons shall be likewise submitted. Before plans are drawn, a statement concerning the improvement may be made to the department and the department may, if requested, outline generally what it will require. Upon receipt of the plans for approval, the department or its authorized representative shall notify the owner of the date of receipt.

281.41(1)(b) (b) Within 90 days from the time of receipt of complete plans or within the time specified in s. 281.35 (5) (c), if applicable, the department or its authorized representative shall examine and take action to approve, approve conditionally or reject the plans and shall state in writing any conditions of approval or reasons for rejection. Approval or disapproval of the plans and specifications may not be contingent upon eligibility of the proposed project for federal aid. The time period for review may be extended by agreement with the owner if the plans and specifications cannot be reviewed within the specified time limitation due to circumstances beyond the control of the department or in the case of extensive installation involving expenditures of $350,000 or more. The extension may not exceed 6 months. Failure of the department or its authorized representative to act before the expiration of the time period allowed for review shall constitute an approval of the plans, and upon demand a written certificate of approval shall be issued. Approval may be subject to modification by the department upon due notice.

281.41(1)(c) (c) Construction or material change shall be according to approved plans only. The department may disapprove plans that are not in conformance with any existing approved areawide waste treatment management plan prepared pursuant to the federal water pollution control act, P.L. 92-500, as amended, and shall disapprove plans that do not meet the grounds for approval specified under s. 281.35 (5) (d), if applicable.

281.41(2) (2) The department may, by rule, exempt an owner of a specific type of system or plant from the requirements of sub. (1) or modify the requirements of sub. (1) for a specific type of system or plant.

281.41(3) (3) 

281.41(3)(a) (a) In this subsection, “septage service area” means the area containing private on-site wastewater treatment systems served or anticipated to be served by a sewage disposal plant during the planning period.

281.41(3)(b) (b) If an owner proposes a sewage disposal plant or an extension of an existing sewage disposal plant that increases the capacity of the existing plant by at least 20 percent, the department shall require that owner, in preparing a plan under this section, to address the need for, and include plans for, the disposal of septage, as defined in s. 281.48 (2) (d). The department shall require an owner to address all of the following under this paragraph:

281.41(3)(b)1. 1. The amount of septage produced throughout the septage service area and the expected increase in septage production during the planning period.

281.41(3)(b)2. 2. The capacity for the disposal of septage during the planning period on land within the septage service area, in the sewage disposal plant, and by other available methods.

281.41(3)(b)3. 3. The location of private on-site wastewater treatment systems within the septage service area, and the distances required to haul septage for disposal either on land or in the sewage disposal plant.

281.41(3)(b)4. 4. The potential for contracts with private on-site wastewater treatment system owners, licensed disposers, as defined in s. 281.49 (1) (b), or municipalities to assure delivery of septage to the sewage disposal plant.

281.41(3)(c) (c) In addressing the need for the disposal of septage and the information required under par. (b), the owner is required only to use data or other information that has previously been collected, whether by the owner or by others, and the owner is not required to conduct new research.

281.41(3)(d) (d) The information required under par. (b) is for the purpose of assuring that septage disposal needs are considered in the decision-making process for sewage disposal plant planning, but par. (b) does not require construction of facilities for the handling or disposal of septage.

281.41(4) (4) When the department receives for review a plan under sub. (1) that would result in returning water transferred from the Great Lakes basin to the source watershed through a stream tributary to one of the Great Lakes, the department shall provide notice of the plan or revision to the governing body of each city, village, and town through which the stream flows or that is adjacent to the stream downstream from the point at which the water would enter the stream.

281.41(5) (5) The department shall establish an expedited procedure for approval of plans under this section. The expedited procedure shall apply, in lieu of the procedure under sub. (1) (b), if the department determines that all of the following are satisfied:

281.41(5)(a) (a) The plan design is of a common construction and size or is for a minor addition to an existing facility.

281.41(5)(b) (b) The plan design is submitted by a registered professional engineer.

281.41(5)(c) (c) The plan design is submitted by a person who has designed similar facilities and none of those similar facilities has caused adverse impacts to the environment.

281.41(5)(d) (d) The plan design contains no unusual siting requirements or other unique design features.

281.41(5)(e) (e) The plan design is not likely to have an adverse impact on the environment.

281.41 History History: 1977 c. 418; 1985 a. 60; 1991 a. 39; 1995 a. 227 s. 405; Stats., 1995 s. 281.41; 1999 a. 85; 2005 a. 347; 2007 a. 227; 2011 a. 146, 167; 2021 a. 126.

281.41 Cross-reference Cross-reference: See also chs. NR 108, 110, and 142, Wis. adm. code.

281.41 Note NOTE: 2005 Wis. Act 347, which affected this section, contains extensive explanatory notes.

281.43 281.43 Joint sewerage systems.

281.43(1) (1) The department of natural resources may require the sewerage system, or sewage or refuse disposal plant of any governmental unit including any town, village or city, to be so planned and constructed that it may be connected with that of any other town, village or city, and may, after hearing, upon due notice to the governmental units order the proper connections to be made or a group of governmental units including cities, villages, town sanitary districts or town utility districts may construct and operate a joint sewerage system under this statute without being so required by order of the department of natural resources but following hearing and approval of the department.

281.43(1m) (1m) An order by the department for the connection of unincorporated territory to a city or village system or plant under this section shall not become effective for 30 days following issuance. Within 30 days following issuance of the order, the governing body of a city or village subject to an order under this section may commence an annexation proceeding under s. 66.0219 to annex the unincorporated territory subject to the order. If the result of the referendum under s. 66.0219 (4) is in favor of annexation, the territory shall be annexed to the city or village for all purposes, and sewerage service shall be extended to the territory subject to the order. If an application for an annexation referendum is denied under s. 66.0219 (2) or the referendum under s. 66.0219 (4) is against the annexation, the order shall be void. If an annexation proceeding is not commenced within the 30-day period, the order shall become effective.

281.43(2) (2) 

281.43(2)(a) (a) When one governmental unit renders service to another under this section, reasonable compensation shall be paid. The officials in charge of the system, of the governmental unit furnishing the service shall determine the reasonable compensation and report to its clerk who shall, on or before August 1 of each year, certify a statement thereof to the clerk of the governmental unit receiving the service. The clerk of the governmental unit receiving the service shall extend the amount shown in the statement as a charge on the tax roll, in the following manner:

281.43(2)(a)1. 1. If the service rendered is available to substantially all improved real estate in the member governmental unit receiving the service, the charges shall be placed upon the tax roll of the member governmental unit as a general tax.

281.43(2)(a)2. 2. If the service rendered is for the benefit of public highways in, or real estate owned or operated by, the member governmental unit receiving the service, the charges for the service shall be placed upon the tax roll of the member governmental unit as a general tax.

281.43(2)(a)3. 3. If the service rendered does not come under the provisions of subd. 1. or 2., the charges for the service shall be placed upon the tax roll of the member governmental unit as a special tax upon each parcel of real estate benefited; and when collected it shall be paid to the treasurer of the member governmental unit rendering the service. Where the charges are to be extended on the tax roll under the provisions of this subdivision, the clerk of the member governmental unit furnishing the service shall itemize the statement showing separately the amount charged to each parcel of real estate benefited.

281.43(2)(b) (b) If, due to delay in determination, a charge described in par. (a) cannot be extended on the tax roll of any particular year, it shall be extended as soon as possible.

281.43(3) (3) If the governing body of any governmental unit deems the charge unreasonable, it may by resolution within 20 days after the filing of the report with its clerk:

281.43(3)(a) (a) Submit to arbitration by 3 reputable and experienced engineers, one chosen by each governmental unit, and the 3rd by the other 2. If the engineers are unable to agree, the vote of 2 shall be the decision. They may affirm or modify the report, and shall submit their decision in writing to each governmental unit within 30 days of their appointment unless the time be extended by agreement of the governmental units. The decision shall be binding. Election to so arbitrate shall be a waiver of right to proceed by action. Two-thirds of the expense of arbitration shall be paid by the governmental unit requesting it, and the balance by the other.

281.43(3)(b) (b) Institute a proceeding for judicial review under ch. 227.

281.43(4) (4) 

281.43(4)(a) (a) Any 2 or more governmental units, including cities, villages, town sanitary districts or town utility districts not wishing to proceed under sub. (2) may jointly construct, operate and maintain a joint sewerage system, inclusive of the necessary intercepting sewers and sewerage treatment works. Such joint action by 2 governmental units shall be carried out by a sewerage commission consisting of one member appointed by each of the governing bodies of such governmental units and a 3rd member to be selected by the 2 members so appointed, or in lieu thereof said sewerage commission may consist of 2 members appointed by the governing body of each governmental unit and a 5th member to be selected by the 4 members so appointed or where more than 2 governmental units act to form the commission, the representation on the commission shall be in accordance with a resolution approved by the member governmental units.

281.43(4)(b) (b)

281.43(4)(b)1. 1. Where such sewerage commission shall consist of 3 members, the members chosen by the 2 members first appointed shall serve for 2 years, while the members appointed by the governing bodies of the 2 governmental units shall serve for terms of 4 and 6 years, respectively, the length of term of each to be determined by lot. All subsequent appointments, except for unexpired terms, shall be for 6 years. All such members shall serve until their successors shall have been appointed and shall have qualified.