SS 026-22 Scope Statement

This rule would specify requirements regarding: diversion and intrabasin transfer application requirements that are outlined in s. 281.346(4), Wis. Stats., including the exception standard under s. 281.346(4)(f), Wis. Stats.; department determinations related to approval, conditional approval, or denial of diversion and intrabasin transfer applications; public notice and participation requirements (s. 281.346(9)(b) to (d), Wis. Stats.); and fees (s. 281.346(12)(d), Wis. Stats.).

Chapters NR 852 (Water Conservation and Water Use Efficiency) and 856 (Water Use Registration and Reporting), Wis. Adm. Code., already refer to requirements for diversions and would be amended, if needed, to be consistent with this rule.

Interbasin transfers that existed prior to the Compact’s effective date and that have approvals issued under s. 281.344, Wis. Stats., would also be regulated under this rule.

An alternative to this rule is to not proceed with rule promulgation and rely solely on the existing statutory language.

4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):

Wisconsin is a party to the Great Lakes – St. Lawrence River Water Resources Compact and is required to, “within its jurisdiction, manage and regulate new or increased withdrawals, consumptive uses, and diversions, including exceptions, in accordance with this compact.” (s. 281.343(4d)(a)., Wis. Stats.). To accomplish this, Wisconsin has authority to “adopt and enforce rules and regulations to implement and enforce this compact and programs adopted by such party to carry out the management programs contemplated by this compact.” (s. 281.343(3)(c)2., Wis. Stats.).

The department is explicitly authorized to promulgate rules establishing department procedures for managing Great Lakes diversions and intrabasin transfers:

—Sections 281.346(3)(b)10. and (e)2. authorize the department to establish reporting requirements and reporting frequencies for any person who begins a diversion.

—Section 281.346(4)(b)4., Wis. Stats., authorizes the department to require by rule additional information from an applicant for a new or increased diversion.

—Section 281.346(4)(d)1. authorizes the department to establish requirements by rule for new and increased intrabasis transfers.

—Section 281.346(4)(g) requires the department to promulgate rules for certain new or increased diversions that require a demonstration of efficient use and conservation of existing water supplies.

—Section 281.346(9)(b) to (d) requires the department to promulgate rules creating a procedure for providing to interested members of the public notices of each complete application the department receives for a diversion or intrabasin transfer; the authorizing statute includes specific minimum requirements for the public notice to be included in the rule, including the form and content of a public notice and procedures for the conduct of public hearings.

5. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:

The department estimates that approximately 800 hours of staff time will be required to complete the proposed rule.

6. List with description of all entities that may be affected by the proposed rule:

The proposed rule may affect the following entities:

1) Communities or operators of public water supply systems that straddle the Great Lakes subcontinental divide.

2) Communities within straddling counties.

3) Southeast Wisconsin Regional Planning Commission.

4) Applicants seeking an intrabasin transfer.

5) Entities that have an existing interbasin transfer approval or diversion approval.

Currently there are 17 entities that have an existing diversion approval or interbasin transfer approval. In the future, any applicant for a diversion of Great Lakes water to a straddling community or community in a straddling county, or an intrabasin transfer would be affected by this rule. The proposed set of rules may also interest citizens and groups concerned with the Great Lakes basin and implementation of the Great Lakes Compact.

7. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:

There are no comparable federal regulations pertaining to the management of diversions and intrabasin transfers regulated under the Great Lakes – St. Lawrence River Basin Water Resource Compact. There are specific procedures that are laid out in the Compact Rules of Practice and Procedure that will need to be considered while writing this rule.

8. Anticipated economic impact of implementing the rule (note if the rule is likely to have an economic impact on small businesses):

The proposed rule will affect communities applying for a diversion of water out of the Great Lakes basin, or an intrabasin transfer. Since the Compact and implementing legislation was passed in December 2008, the department has received and approved a limited number of applications for diversions (e.g. Cities of New Berlin, Waukesha, and Racine) and intrabasin transfers (e.g. Enbridge hydrostatic testing). The department anticipates a similar limited number of applications in future years. Costs related to diversions and intrabasin transfers are mostly related to hiring consultants to meet statutory requirements. The department anticipates the economic impact of implementing this rule to be moderate, as requirements for this administrative rule would be no more stringent than the requirements established by statute. The rule is not anticipated to have a significant economic impact on small businesses.

9. Anticipated number, month and locations of public hearings:

The department anticipates holding a public hearing in September, 2023. The hearing will be held in Madison, Wisconsin with an option to join virtually. This will provide convenient access to the hearing for interested parties around the state.

Contact Person: Nicole Clayton, [phone]