Chapter NR 851

NR 851.42(2)(n) (n) The proposal has undergone regional body review and the department considered the regional declaration of findings.

NR 851.42(2)(o) (o) The Great Lakes council has approved the proposal.

NR 851.42 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.43 NR 851.43 Amendment to a community within a straddling county diversion approval.

NR 851.43(1) (1) A person seeking to amend an approval for a community within a straddling county diversion shall contact the department to discuss the scope of the request. A person seeking an amendment shall submit to the department the amendment request and documentation to support all relevant application requirements under s. NR 851.41. Upon receipt of the request and at any time during its review, the department may request additional information, documentation, and materials necessary to review the request.

NR 851.43(2) (2) The department shall work with the applicant to follow regional body and Great Lakes council procedures to amend a community within a straddling county diversion approval.

NR 851.43(3) (3) The department may amend a community within a straddling county diversion approval if it is consistent with the regional body and Great Lakes council approval and findings.

NR 851.43 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24; correction in (title) made under s. 13.92 (4) (b) 2., Stats., Register June 2024 No. 822.

subch. V of ch. NR 851 Subchapter V — The Exception Standard

NR 851.50 NR 851.50 Exception standard applicability. The exception standard implements the criteria established under s. 281.346 (4) (f), Stats. The exception standard applies to all of the following:

NR 851.50(1) (1) A new or increased straddling community diversion proposal that results from a new withdrawal or an increase in a withdrawal that would average 100,000 gallons or more per day in any 90-day period.

NR 851.50(2) (2) An intrabasin transfer proposal that results from a new withdrawal or an increase in a withdrawal that would average more than 100,000 gallons per day in any 90-day period.

NR 851.50(3) (3) An intrabasin transfer proposal that results in a new or increased water loss that would average 5,000,000 gallons per day or more in any 90-day period.

NR 851.50(4) (4) A new or increased community within a straddling county diversion proposal.

NR 851.50 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.51 NR 851.51 Exception standard application requirements. In addition to the applicable application requirements under subch. II, III, or IV, the applicant shall provide all of the following information with any application submitted under subch. II, III, or IV:

NR 851.51(1) (1) Documentation demonstrating that the proposal cannot be reasonably avoided through the efficient use and conservation of existing water supplies.

NR 851.51(2) (2) Information to demonstrate all of the following related to return flow:

NR 851.51(2)(a) (a) The amount of water that will be returned to the Great Lakes basin.

NR 851.51(2)(b) (b) If surface water or groundwater from outside the Great Lakes basin will be returned to the source basin, that the returned water will be from a water supply or wastewater treatment system that combines water from inside and outside the Great Lakes basin.

NR 851.51(2)(c) (c) If surface water or groundwater from outside the Great Lakes basin will be returned to the source basin, that the returned water will be treated to meet applicable permit requirements under s. 283.31, Stats., and to prevent the introduction of invasive species into the Great Lakes basin.

NR 851.51(2)(d) (d) If surface water or groundwater from outside the Great Lakes basin will be returned to the source basin and if the water is returned through a structure on the bed of a navigable water, the structure is designed and will be operated to meet the applicable permit requirements under s. 30.12, Stats.

NR 851.51(3) (3) The distance between where the water will be withdrawn for the proposal and where the water will be returned to the Great Lakes. The applicant shall provide information on the economics, environmental impacts, and public health impacts considered in determining the return flow location. Except for applicants described under s. NR 851.50 (2), if the place at which the water is to be returned is not as close as practicable to the place at which the water is withdrawn, the applicant shall provide documentation that returning water to a closer location is one of the following:

NR 851.51(3)(a) (a) Not economically feasible.

NR 851.51(3)(b) (b) Not environmentally sound.

NR 851.51(3)(c) (c) Not in the interest of public health.

NR 851.51(4) (4) An analysis of the hydrologic setting for the source waterbody and the waterbody receiving the returned water, including consideration of groundwater, surface water, the connection between groundwater and surface water, and the general characteristics of the water bodies such as water availability, water quality, and habitat.

NR 851.51(5) (5) Documentation of how the physical, chemical, and biological integrity of the waterbody receiving the returned water will be protected and sustained as required under ss. 30.12, 281.15, and 283.31, Stats. The applicant shall provide scientific information and data statistics on the state of the receiving water before the proposal is implemented, low and high flow conditions if the receiving water is a stream tributary, and potential adverse impacts due to changes in temperature and nutrient loadings.

NR 851.51(6) (6) A cumulative impacts analysis that determines the percentage of water that will be withdrawn, diverted, and returned to the Great Lakes basin, including the ratio of the amount that will be diverted to the total volume of the waterbody from which the water is being diverted as a percentage.

NR 851.51(7) (7) An analysis of the potential for significant adverse individual impacts or cumulative impacts to the quantity or quality of the waters of the Great Lakes basin or to water-dependent natural resources.

NR 851.51(8) (8) A statement that the applicant will continue to implement its Tier 3 water conservation plan developed in compliance with ch. NR 852.

NR 851.51 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24; correction in (4) made under s. 35.17, Stats., Register June 2024 No. 822.

NR 851.52 NR 851.52 Exception standard department review. The department may determine that a proposal meets the exception standard if all of the following apply:

NR 851.52(1) (1) The need for the proposed diversion cannot reasonably be avoided through the efficient use and conservation of existing water supplies as determined by the applicant’s Tier 3 water conservation plan developed in compliance with ch. NR 852.

NR 851.52(2) (2) The diversion is limited to quantities that are reasonable for the purposes for which the diversion is proposed.

NR 851.52(3) (3) An amount of water equal to the amount of water withdrawn from the Great Lakes basin will be treated and returned to the source watershed, less an allowance for consumptive use.

NR 851.52(4) (4) For applications described under s. NR 851.50 (1), (3), and (4), the place at which the water is returned to the source watershed is as close as practicable to the place at which the water is withdrawn, including consideration of the following:

NR 851.52(4)(a) (a) Economic feasibility.

NR 851.52(4)(b) (b) Environmental impact such as impacts of the withdrawal on rivers or streams.

NR 851.52(4)(c) (c) Public health concerns.

NR 851.52(5) (5) No water from outside the Great Lakes basin will be returned to the source watershed unless all of the following apply:

NR 851.52(5)(a) (a) The returned water is from a water supply or wastewater treatment system that combines water from inside and outside the Great Lakes basin.

NR 851.52(5)(b) (b) The returned water will be treated to meet applicable permit requirements under s. 283.31, Stats., and to prevent the introduction of invasive species into the Great Lakes basin and the department has approved the permit under s. 283.31, Stats.

NR 851.52(5)(c) (c) If the water is returned through a structure on a bed of a navigable water, the structure is designed and will be operated to meet the applicable permit requirements under s. 30.12, Stats., and the department has approved a permit under s. 30.12, Stats.

NR 851.52(6) (6) If water is returned to the source watershed through a stream tributary to one of the Great Lakes, the physical, chemical, and biological integrity of the receiving water will be protected and sustained as required under ss. 30.12, 281.15, and 283.31, Stats., considering the state of the receiving water before the proposal is implemented and considering both low and high flow conditions and potential adverse impacts due to the changes in temperature and nutrient loadings.

NR 851.52(7) (7) The diversion will result in no significant adverse individual impacts or cumulative impacts to the quantity or quality of the waters of the Great Lakes basin or to water-dependent natural resources, including cumulative impacts that might result due to any precedent-setting aspects of the proposed diversion, based upon a determination that the proposed diversion does not have any significant adverse impacts on the sustainable management of the waters of the Great Lakes basin.

NR 851.52(8) (8) The applicant has a Tier 3 water conservation plan developed in compliance with ch. NR 852 and commits to implementing the water conservation plan.

NR 851.52(9) (9) The diversion will be in compliance with all applicable local, state, and federal laws and interstate and international agreements, including the Boundary Waters Treaty of 1909.

NR 851.52 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24; correction in (5) (b) made under s. 35.17, Stats., Register June 2024 No. 822.

subch. VI of ch. NR 851 Subchapter VI — Approvals, Conditions, and Reporting Requirements

NR 851.60 NR 851.60 Preexisting diversions.

NR 851.60(1) (1) Public water supply systems. If an owner or operator of a public water supply system with a preexisting diversion plans to change operations in a manner that does not comply with the preexisting approval or conditions, the owner or operator shall apply for a new or increased diversion approval under s. 281.346 (4), Stats., and subch. II, III, or IV, as applicable.

NR 851.60(2) (2) Transfer of ownership of a preexisting diversion not for public water supply. Within 30 days after a change in ownership of a property with a withdrawal that is the source for a preexisting diversion, the new property owner shall request in writing to the department a transfer of the preexisting diversion approval, including the new property owner’s name, mailing address, telephone number, and email. The department may approve the transfer of the preexisting diversion approval to a new property owner if the new owner agrees to comply with the preexisting diversion approval, conditions, and reporting requirements.

NR 851.60 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24; correction in (1) made under s. 35.17, Stats., Register June 2024 No. 822.

NR 851.61 NR 851.61 Approval, conditional approval, and denial.

NR 851.61(1) (1) Each approval the department issues under this chapter shall specify, at a minimum, all of the following:

NR 851.61(1)(a) (a) The purpose of the water diversion.

NR 851.61(1)(b) (b) The diversion volume expressed as an annual average in gallons per day, or for intrabasin transfers, the diversion volume expressed as an average in any 90-day period in gallons per day.

NR 851.61(1)(c) (c) The diversion area, consistent with the approved water supply service area plan if applicable.

NR 851.61(1)(d) (d) The place where the water shall be treated and location of where the water will be returned to the Great Lakes basin.

NR 851.61(1)(e) (e) Tier 3 water conservation plan approval and water conservation plan implementation requirements.

NR 851.61(1)(f) (f) Recordkeeping and reporting requirements, including requirements under ch. NR 856 including the volume of water diverted or transferred and volume of water returned.

NR 851.61(1)(g) (g) If the approval is for a temporary diversion, the expiration date or termination date of approval.

NR 851.61(2) (2) The department may include in an approval or conditional approval any of the following, as applicable:

NR 851.61(2)(a) (a) Additional reporting requirements.

NR 851.61(2)(b) (b) Requirements for monitoring potential environmental impacts to the Great Lakes basin and water-dependent natural resources.

NR 851.61(2)(c) (c) Conditions to protect the waters of the state from impacts of the diversion.

NR 851.61(2)(d) (d) Conditions necessary to comply with ss. 281.343 and 281.346, Stats., and this chapter.

NR 851.61(2)(e) (e) Conditions enacting or considering a regional declaration of findings from a regional body review.

NR 851.61(2)(f) (f) Conditions enacting or adopting an approval from the Great Lakes council.

NR 851.61(2)(g) (g) Conditions necessary to comply with Great Lakes council or regional body procedures.

NR 851.61(2)(h) (h) A determination of compliance with ch. NR 150.

NR 851.61(3) (3) If the application is denied, the department shall provide notice to the applicant including the reason for denial.

NR 851.61 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.62 NR 851.62 Termination of approval. The department may terminate a diversion approval if any of the following apply:

NR 851.62(1) (1) The person or public water supply system no longer has the capability to withdraw water or the water use registration has been terminated under ch. NR 856.

NR 851.62(2) (2) Except for public water supply systems, the person no longer holds all applicable department approvals or permits under s. 30.12, 30.18, 281.346, 281.35, or 283.31, Stats.

NR 851.62(3) (3) The intrabasin transfer approval was for a one-time transfer and the transfer is complete.

NR 851.62 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

subch. VII of ch. NR 851 Subchapter VII — Public Notice and Participation

NR 851.70 NR 851.70 Applicability. The department may issue an approval or conditional approval for a diversion under s. NR 851.61 if all applicable requirements of this subchapter have been met.

NR 851.70 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.71 NR 851.71 Receipt of application and preliminary review. Prior to determining an application is complete, the department may inform the public and the Great Lakes council and regional body that an application has been received and the department will begin a preliminary review.

NR 851.71 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.72 NR 851.72 Public notice and comment. The department shall provide public notice and a public comment period for any complete application received under subch. II, III, or IV. The public notice and comment period shall comply with all of the following:

NR 851.72(1) (1) Public notice content. The public notice shall contain all of the following:

NR 851.72(1)(a) (a) Name and mailing address of the applicant.

NR 851.72(1)(b) (b) A brief description of the proposed diversion, including the amount of the proposed withdrawal or diversion.

NR 851.72(1)(c) (c) A brief description of the procedures for the formulation of final determinations on applications, including the date public comments are due to the department.