Chapter NR 851

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.

NR 851.72(1)(d) (d) The name and address of a contact within the department who will receive comments and respond to questions.

NR 851.72(1)(e) (e) The location on the department’s website where copies of the application materials are available for review.

NR 851.72(1)(f) (f) The location, date, and time of any public meetings or hearings, if applicable.

NR 851.72(2) (2) Public notice procedure.

NR 851.72(2)(a) (a) The department shall publish a class 1 notice under ch. 985, Stats., in the county or counties where the water is proposed to be withdrawn and where the water will be diverted or transferred.

NR 851.72(2)(b) (b) The department shall publish the notice by electronic notification to all of the following:

NR 851.72(2)(b)1. 1. All local and regional units of government that have jurisdiction over the area that may be affected by the proposal or reasonable alternatives to the proposal.

NR 851.72(2)(b)2. 2. All relevant department electronic notification systems.

NR 851.72(2)(b)3. 3. The department website.

NR 851.72(2)(b)4. 4. Information outlets accessible in the local, regional, or statewide areas affected by the proposal.

NR 851.72(2)(b)5. 5. All individuals, groups, clubs, committees, local governments, or state agencies that have demonstrated an interest in and requested receipt of such notice.

NR 851.72 Note Note: The department has a service to notify interested parties. Search “Great Lakes Compact” at dnr.wisconsin.gov and subscribe to receive email updates about the Great Lakes Compact.

NR 851.72(2)(c) (c) Upon request, the department shall mail or provide a copy of the application to any individual or group requesting a copy. A charge may be assessed to cover reproduction and handling costs for requests for paper copies of documents.

NR 851.72(3) (3) Public comment period. The department shall receive written public comment for 30 days, beginning the date the department posts the public notice on the department website. All comments shall be sent to the department at the email or physical address specified in the public notice and shall be received by email or at the physical address by the date specified in the public notice. The department shall retain all written comments received during the comment period, consistent with the department’s records retention policy, and shall consider the comments in making its decisions on the application.

NR 851.72 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.73 NR 851.73 Notice to Great Lakes council and regional body. The department shall notify the Great Lakes council and regional body of all complete applications under subch. II, III, or IV.

NR 851.73 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.74 NR 851.74 Tribal notice and consultation. The department shall notify all recognized American Indian tribes or bands in this state of complete applications under subch. II, III, or IV. For an application requiring regional body review or Great Lakes council approval, the department shall consult with federally recognized American Indian tribes or bands in this state concerning a proposal that may affect the tribe or band.

NR 851.74 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.75 NR 851.75 Public hearings.

NR 851.75(1) (1) Mandatory hearings. The department shall conduct a public hearing for any of the following:

NR 851.75(1)(a) (a) 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 851.75(1)(b) (b) A new or increased straddling community diversion proposal that results in a new or increased consumptive use that would average 5,000,000 gallons or more per day in any 90-day period.

NR 851.75(1)(c) (c) An intrabasin transfer proposal that results in 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 851.75(1)(d) (d) An intrabasin transfer proposal that results in a new or increased consumptive use that would average 5,000,000 gallons per day or more in any 90-day period.

NR 851.75(1)(e) (e) A new or increased diversion proposal to a community within a straddling county.

NR 851.75(2) (2) Hearing by request.

NR 851.75(2)(a) (a) If a hearing is not required under sub. (1), within 30 days of the public notice posted on the department website under s. NR 851.72 (2) (b) 3., any interested person may request a public hearing regarding a diversion application submitted to the department under subch. II, III or IV. The person making the request shall indicate the person’s interest in the proposal and the reason a hearing is warranted.

NR 851.75(2)(b) (b) The department shall conduct a public hearing if it determines that there is a significant public interest in holding a hearing.

NR 851.75(3) (3) Public hearing procedure.

NR 851.75(3)(a) (a) The department shall provide public notice of a hearing under sub. (2) following the procedures under s. NR 851.72 (2) unless notice of the hearing has already been provided under s. NR 851.72 (2). The hearing notice shall contain all relevant information listed under s. NR 851.72 (1).

NR 851.75(3)(b) (b) A public hearing may be held in-person in the area where the diversion is located, online, or a combination of in-person and online.

NR 851.75(3)(c) (c) The public hearing shall be conducted by a hearing examiner. The hearing examiner may implement procedures to ensure that the hearing is conducted in an orderly and expeditious manner, provided those procedures are consistent with broad public participation in the hearing.

NR 851.75(3)(d) (d) The hearing examiner shall open the hearing, make a concise statement of the scope and purpose of the hearing, explain the procedures for the hearing, explain the method of notification of the final decision to approve or deny the diversion, and explain the methods by which the decision may be reviewed in a public hearing.

NR 851.75(3)(e) (e) Appearance slips or online registration shall be recorded for all attendees at the hearing. Persons shall state on their appearance slips or online registration their intent to present or not present an oral or written statement at the hearing.

NR 851.75(3)(f) (f) The hearing examiner may establish reasonable time limits on individual oral statements to ensure the opportunity for all attendees to make statements. The hearing examiner may limit the number of representatives that may make oral statements on behalf of the same organized group.

NR 851.75(3)(g) (g) Attendees at the hearing may ask informational and clarifying questions by submitting the questions in writing to the hearing examiner who may direct the questions to the person making the oral statement. In no instance shall cross-examination be allowed at the hearing.

NR 851.75(3)(h) (h) Contemptuous conduct at a hearing shall be grounds for exclusion from the hearing by the hearing examiner.

NR 851.75(3)(i) (i) The hearing examiner shall accept written comments from hearing attendees.

NR 851.75(3)(j) (j) A hearing held under this section is not a contested case hearing under s. 227.44, Stats.

NR 851.75(3)(k) (k) The hearing examiner shall make a written report of public participation and public comments heard during the hearing process for the decision record.

NR 851.75 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24.

NR 851.76 NR 851.76 Open records requests. The department may consider domestic security concerns when determining whether public records provided to or obtained by the department under this chapter warrant confidential treatment, as allowed under s. 281.346 (3) (cm) and (9) (e), Stats.

NR 851.76 History History: CR 23-050: cr. Register June 2024 No. 822, eff. 7-1-24; correction made under s. 35.17, Stats., Register June 2024 No. 822.