5. Plain Language Analysis: The Wisconsin Legislature ratified the Compact in 2007 Wisconsin Act 227. Section 281.343, Stats., is the ratification and text of the Compact, and s. 281.346, Stats., is Wisconsin’s program for managing and regulating new or increased water withdrawals, diversions and consumptive uses consistent with the provisions of the Compact. The proposed rule establishes department procedures for managing Great Lakes diversions and intrabasin transfers. Diversions are defined as a transfer of water from the Great Lakes basin into a watershed outside the Great Lakes basin, or from the watershed of one of the Great Lakes into that of another, by any means of transfer, including a pipeline, canal, tunnel, aqueduct, channel, modification of the direction of a water course, tanker ship, tanker truck, or rail tanker, with few exceptions (s. 281.346(1)(h), Stats.). Intrabasin transfer means the transfer of water from the watershed of one of the Great Lakes into the watershed of another of the Great Lakes (s. 281.346(1)(jm), Stats.). The Compact is a legally binding interstate agreement that became effective on December 8, 2008. The Compact and the adopted rules and guidance detail how the states party to the Compact – Wisconsin, Illinois, Indiana, Michigan, Minnesota, New York, Ohio, and Pennsylvania – will work together to manage and protect the Great Lakes - St. Lawrence River Basin (Basin). The Compact Council’s adopted rules and guidance provide a framework for each state to create programs and enact rules and regulations within their own jurisdictions to protect the Basin. The proposed rule has built in flexibility for Wisconsin to comply with the Compact, Compact rules and guidance documents.
The Great Lakes Compact bans diversions of Great Lakes water with limited exceptions. These exceptions allow a “straddling community” or “community in a straddling county” to apply to divert water (i.e., to move water out of the Great Lakes basin). If certain requirements are met, water may be transferred in some cases from one Great Lakes basin to another through an intrabasin transfer. Currently, the department works with applicants for diversions and intrabasin transfers from the Great Lakes basin on a case-by-case basis, within the statutory authority and parameters in s. 281.346(4), Stats. This rule specifies:
diversion and intrabasin transfer application requirements
department application review processes
department determinations related to approvals, conditional approvals, and denials of diversion applications
public notice and participation; and
reporting requirements. This rule also provides flexibility for Wisconsin to comply with Compact rules and guidance.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: 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. The Compact Council has adopted certain procedures laid out in the Compact Rules of Practice and Procedure, which have been considered while drafting this rule.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope: The department held a preliminary public hearing on the statement of scope for this rule on June 3, 2022. One member of the public attended the preliminary hearing and did not provide comments. The department did not receive any written comments on the scope statement during the preliminary comment period.
8. Comparison with Similar Rules in Adjacent States: In comparison to adjacent states, Illinois’ rules are the most similar to what Wisconsin is proposing for the diversion rule. Michigan and Minnesota have state statutes that mirror the Great Lakes Compact requirements but no corresponding rules. Iowa is not a party to the Great Lakes Compact, and diversions out of Iowa are reviewed under their rules for withdrawals.
Illinois: Illinois’ program regulates diversions within the restrictions of the most recent U.S Supreme Court decree entered in Wisconsin v. Illinois, 278 U.S. 367 (1929). The decree limits Illinois’ diversion of Lake Michigan water to 3,200 cubic feet per second. Illinois’ administrative rules identify the following: requirements for the contents of an application, criteria for determining water needs, emergency conditions, process for transferring water use rights, required conservation practices, other permit conditions, the duration of permits and renewals, reporting requirements, the process for modifying a permit, Illinois’ review and decision process, and penalties. Illinois’ Part 3730 Administrative Rules address the application and review of diversion proposals (Lake Michigan allocations) under the Great Lakes Compact and Agreement in Illinois. Michigan: Michigan has no administrative rule related to the review of Great Lakes diversions or intrabasin transfers.
Minnesota: Minnesota has no administrative rule related to the review of Great Lakes diversions or intrabasin transfers. Minnesota’s statute does contain additional requirements for all diversions greater than 5 million gallons per day. The statute states that Minnesota must notify and solicit comments from the office of the governors and premiers of the Great Lakes states and provinces, the water management agencies, and the international joint commission. The Minnesota state legislature must approve the diversion. The commissioner must consider any comments received, hold a meeting to resolve any objections and send notification of any final decision to the offices originally notified (State Statutes Implementation: M.S. 103G.265, subd. 4).
Iowa: Iowa is not party to the Great Lakes Compact. Diversions of water outside of Iowa are reviewed under the same process as withdrawal applications. Iowa’s administrative rules identify the fees for application, the information required in the application, the review process for applications, the public notice requirements, the decision requirements, and the appeals process for a decision. Iowa’s rules also specify the criteria for authorizing a diversion, the duration of permits, monitoring and reporting requirements, modifications, designated protected flow streams, water conservation requirements, and priority allocation restrictions. The authority and process for when and how Iowa reviews water diversion applications is outlined in Code at: https://www.legis.iowa.gov/docs/code/455B.265.pdf. The details on how the code is implemented are included in the following chapters: https://www.legis.iowa.gov/docs/iac/chapter/03-08-2023.567.50.pdf and https://www.legis.iowa.gov/docs/iac/chapter/03-08-2023.567.52.pdf.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: To support the regulatory approach taken for this rule, the department used the legislative framework that details the Compact and Wisconsin’s diversion program in ss. 281.343 and 281.346, Stats. The department also relied on previous application and review processes associated with diversion and intrabasin transfers since the Compact was ratified (the cities of New Berlin, Racine, and Waukesha, the Village of Somers, and Enbridge). Department staff interviewed municipalities or consultants that engaged in the process to see how the department could build in consistency and efficiency through this rule. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The department anticipates no effect on small businesses as a result of this rule.
11. Effect on Small Business (initial regulatory flexibility analysis): This proposed rule has no economic impacts to small businesses.
13. Place where comments are to be submitted and deadline for submission:
A public comment period on the draft rule occurred from September 5 to October 12, 2023, and a public hearing was held on October 5, 2023.
RULE TEXT
Section 1 NR 851 is created to read:
Management of Great Lakes Diversions
Subchapter I
Purpose, Definitions, and General Provisions
NR 851.10 Purpose. The purpose of this chapter is to establish an application process, requirements, and department review procedures related to diversions of Great Lakes basin water, in compliance with ss. 281.343 and 281.346, Stats., and consistent with the requirements of the Great Lakes – St. Lawrence River Basin Water Resources Compact. NR 851.11 Definitions. In this chapter:
(1)
“Applicant” means a person who submits an application for a diversion approval.
(2)
“Community within a straddling county” has the meaning given in s. 281.346 (1)), Stats. Note: Section 281.346 (1) (d), Stats., reads as follows: “Community within a straddling county” means any city, village, or town that is not a straddling community and that is located outside the Great Lakes basin but wholly within a county that lies partly within the Great Lakes basin. (3) “Consumptive use” has the meaning given in s. 281.346 (1) (e), Stats. Note: Section 281.346 (1) (e), Stats., reads as follows: “Consumptive use” means a use of water that results in the loss of or failure to return some or all of the water to the basin from which the water is withdrawn due to evaporation, incorporation into products, or other processes. (3) “Department” means the department of natural resources.
(4) “Diversion” has the meaning given in s. 281.346 (1) (h), Stats. “Diversion” includes diversions to straddling communities, diversions to communities within a straddling county and intrabasin transfers. Note: Section 281.346 (1) (h), Stats., reads as follows: “Diversion” means a transfer of water from the Great Lakes basin into a watershed outside the Great Lakes basin, or from the watershed of one of the Great Lakes into that of another, by any means of transfer, including a pipeline, canal, tunnel, aqueduct, channel, modification of the direction of a water course, tanker ship, tanker truck, or rail tanker except that ”diversion” does not include any of the following: 1. The transfer of a product produced in the Great Lakes basin or in the watershed of one of the Great Lakes, using waters of the Great Lakes basin, out of the Great Lakes basin or out of the watershed.
2. The transmission of water within a line that extends outside of the Great Lakes basin as it conveys water from one point to another within the Great Lakes basin if no water is used outside of the Great Lakes basin.
3. The transfer of bottled water from the Great Lakes basin in containers of 5.7 gallons or less.
(5) “Diversion area” means the area outside the Great Lakes basin that is approved by the department to be served water from the Great Lakes basin.
(6) “Great Lakes basin” means the watershed of the Great Lakes and the St. Lawrence River upstream from Trois-Rivieres, Quebec, within the jurisdiction of the parties. The boundary of the Great Lakes basin is derived from the subbasin (8-digit) 4th level hydrologic units from the digital Watershed Boundary Dataset for the State of Wisconsin, consisting of geo-referenced digital data and associated attributes created in accordance with the "FGDC Proposal, Version 1.0 - Federal Standards for Delineation of Hydrologic Unit Boundaries 3/01/02.”
(7) “Great Lakes council” has the meaning given in s. 281.346 (1) (jj), Stats. Note: Section 281.346 (1) (jj), Stats., reads as follows: “Great Lakes council” means the Great Lakes-St. Lawrence River Basin Water Resources Council, created under s. 281.343 (2) (a). Note: The Great Lakes council is comprised of the Great Lake Governors, or their designees, who consult and coordinate with the Premiers of Ontario, Quebec, and the Great-Lakes St. Lawrence River Water Resources Regional Body to protect the Great Lakes and St. Lawrence River.
(8) “Intrabasin transfer” has the meaning given in s. 281.346 (1) (jm), Stats. Note: Section 281.346 (1) (jm), Stats., reads as follows: “Intrabasin transfer” means the transfer of water from the watershed of one of the Great Lakes into the watershed of another of the Great Lakes. Note: Section 281.346 (1) (nm), Stats., reads as follows: Notwithstanding s. 281.01 (9), “Person” means an individual or other entity, including a government or nongovernmental organization, including any scientific, professional, business, nonprofit, or public interest organization or association that is neither affiliated with nor under the direction of a government. (10) “Preexisting diversion” means a diversion of water from the Great Lakes basin into a watershed outside of the Great Lakes basin that existed prior to the ratification of the Great Lakes Compact on December 8, 2008, and received an approval from the department under s. 281.344 (3m) or (4), Stats. (11) “Proposal” means a request for a new or increased diversion of Great Lakes water.
(12) “Public water supply” has the meaning given in s. 281.346 (1) (pm), Stats. Note: Section 281.346 (1) (pm), Stats., reads as follows: “Public water supply” means water distributed to the public through a physically connected system of treatment, storage, and distribution facilities that serve a group of largely residential customers and that may also serve industrial, commercial, and other institutional customers. (13) “Public water supply system” means a physically connected system of treatment, storage, and distribution facilities that distributes public water supply that is treated for human consumption, and that is owned by a city, village, county, town, town sanitary district, utility district, public inland lake and rehabilitation district, municipal water district, joint local water authorities, or a privately owned water utility serving any of these entities.
(14) “Reasonable water supply alternative” has the meaning given in s. 281.346 (1) (ps), Stats. Note: Section 281.346 (1) (ps), Stats., reads as follows: “Reasonable water supply alternative” means a water supply alternative that is similar in cost to, and as environmentally sustainable and protective of public health as, the proposed new or increased diversion and that does not have a greater adverse environmental impact than the proposed new or increased diversion. (15) “Regional body” has the meaning given in s. 281.346 (1) (q), Stats. Note: Section 281.346 (1) (q), Stats., reads as follows: “Regional body” means the body consisting of the governors of the parties and the premiers of Ontario and Quebec, Canada, or their designees as established by the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement. (16) “Sewer service area” has the meaning given in s. NR 110.03 (29t). Note: Section NR 110.03 (29t) reads as follows: “Sewer service area” means that area served or anticipated to be served by a sewage collection system. (17) “Source watershed” has the meaning given in s. 281.346 (1) (r), Stats. Note: Section 281.346 (1) (r), Stats., reads as follows: “Source watershed" means the watershed from which a withdrawal originates. If water is withdrawn directly from a Great Lake or from the St. Lawrence River, then the source watershed is the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively. If water is withdrawn from the watershed of a stream that is a direct tributary to a Great Lake or a direct tributary to the St. Lawrence River, then the source watershed is the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively.
