Chapter 281

281.16(2)(c) (c) If a covered municipality has obtained all permits required for the construction of a storm water management pond in an artificial water body, whether navigable or nonnavigable, the department may not prohibit the construction of the storm water management pond as a method by which the covered municipality may achieve compliance with performance standards under par. (a) or with an approved total maximum daily load under 33 USC 1313 (d) (1) (C). The department shall give credit to the covered municipality for any pollutant reduction achieved by the storm water management pond in determining compliance with performance standards specified in a permit under s. 283.33 (1) (b), (c), (cg), or (cr) or an approved total maximum daily load under 33 USC 1313 (d).

281.16(3) (3) Nonpoint sources that are agricultural.

281.16(3)(a) (a) The department of natural resources, in consultation with the department of agriculture, trade and consumer protection, shall promulgate rules prescribing performance standards and prohibitions for agricultural facilities and agricultural practices that are nonpoint sources. The performance standards and prohibitions shall be designed to achieve water quality standards by limiting nonpoint source water pollution. At a minimum, the prohibitions shall include all of the following:

281.16(3)(a)1. 1. That a livestock operation may have no overflow of manure storage structures.

281.16(3)(a)2. 2. That a livestock operation may have no unconfined manure pile in a water quality management area.

281.16(3)(a)3. 3. That a livestock operation may have no direct runoff from a feedlot or stored manure into the waters of the state.

281.16(3)(a)4. 4. That a livestock operation may not allow unlimited access by livestock to waters of the state in a location where high concentrations of animals prevent the maintenance of adequate sod cover.

281.16(3)(b) (b) The department of agriculture, trade and consumer protection, in consultation with the department of natural resources, shall promulgate rules prescribing conservation practices to implement the performance standards and prohibitions under par. (a) and specifying a process for the development and dissemination of technical standards to implement the performance standards and prohibitions under par. (a).

281.16(3)(c) (c) Using the process specified under par. (b), the department of agriculture, trade and consumer protection shall develop and disseminate technical standards to implement the performance standards and prohibitions under par. (a). The department of agriculture, trade and consumer protection shall disseminate alternative technical standards for situations in which more than one method exists to implement the performance standards and prohibitions.

281.16(3)(d) (d) The conservation practices and technical standards under pars. (b) and (c) shall at a minimum cover animal waste management, nutrients applied to the soil and cropland sediment delivery.

281.16(3)(e) (e) An owner or operator of an agricultural facility or practice that is in existence before October 14, 1997, may not be required by this state or a municipality to comply with the performance standards, prohibitions, conservation practices or technical standards under this subsection unless cost-sharing is available, under s. 92.14 or 281.65 or from any other source, to the owner or operator. For the purposes of this paragraph, sub. (4) and ss. 92.07 (2), 92.15 (4) and 823.08 (3) (c) 2., the department of natural resources shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 281.65 and the department of agriculture, trade and consumer protection shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 92.14 or from any other source. The rules may not allow a determination that cost-sharing is available to meet local regulations under s. 92.07 (2) or 92.15 that are consistent with or that exceed the performance standards, prohibitions, conservation practices or technical standards under this subsection unless the cost-sharing is at least 70 percent of the cost of compliance or is from 70 percent to 90 percent of the cost of compliance in cases of economic hardship, as defined in the rules.

281.16(4) (4) Application to animal feeding operations. If the department issues a notice of discharge under ch. 283 for an animal feeding operation, the performance standards, prohibitions, conservation practices and technical standards under sub. (3) apply to the animal feeding operation, except that if the animal feeding operation is in existence before October 14, 1997, the performance standards, prohibitions, conservation practices and technical standards only apply if the department determines that cost-sharing is available to the owner or operator of the animal feeding operation under s. 92.14 or 281.65 or from any other source.

281.16 History History: 1997 a. 27; 1999 a. 9; 2009 a. 28; 2011 a. 32; 2015 a. 387.

281.16 Cross-reference Cross-reference: See also chs. NR 151 and 243, Wis. adm. code.

281.165 281.165 Compliance with water quality standards for wetlands.

281.165(1) (1) Compliance; exemption. An activity shall be considered to comply with the water quality standards that are applicable to wetlands and that are promulgated as rules under s. 281.15 and is exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure or penalty specified under s. 29.601 (3) or chs. 30, 31, 281, 283, 289 to 292 or 299 or specified under any rule promulgated, order issued or ordinance adopted under any of those sections or chapters, if the activity meets all of the requirements under sub. (2), (3), or (4).

281.165(2) (2) Trempealeau County. Subsection (1) applies to an activity that meets all of the following requirements:

281.165(2)(a) (a) The wetland area that will be affected by the activity is less than 15 acres in size.

281.165(2)(b) (b) The site of the activity is zoned for industrial use and is in the vicinity of a manufacturing facility.

281.165(2)(c) (c) The site of the activity is within the corporate limits of a city on January 1, 1999.

281.165(2)(d) (d) The governing body of the city adopts a resolution stating that the exemption under this section is necessary to protect jobs that exist in the city on the date of the adoption of the resolution or is necessary to promote job creation.

281.165(2)(e) (e) The site of the activity is located in Trempealeau County.

281.165(3) (3) Dunn County.

281.165(3)(a) (a) Subsection (1) applies to an activity that meets the requirements under sub. (2) (c) and (d) and all of the following requirements:

281.165(3)(a)1. 1. The wetland area that will be affected by the activity is no more than 4.2 acres in size.

281.165(3)(a)2. 2. The site of the activity is zoned for technology park use and is in the vicinity of a manufacturing facility.

281.165(3)(a)3. 3. The site of the activity is located in Dunn County.

281.165(3)(b) (b) Before any person engages in the activity described in par. (a), the U.S. army corps of engineers shall have issued a permit for the activity that contains a mitigation plan that requires the creation of at least 1.5 acres of wetland for each acre of wetland affected by the activity.

281.165(4) (4) Village of Ashwaubenon.

281.165(4)(a) (a) Subsection (1) applies to an activity that meets all of the following requirements:

281.165(4)(a)1m. 1m. The wetland area is not subject to federal jurisdiction under 33 USC 1344, and the activity will affect less than 3 acres of that wetland area.

281.165(4)(a)2. 2. The site of the activity is zoned for community business use and is part of a tax incremental district.

281.165(4)(a)3m. 3m. The site of the activity is located in the village of Ashwaubenon in the vicinity of a professional football stadium.

281.165(4)(a)4m. 4m. The person who will engage in the activity shall have provided wetland mitigation at the ratio of at least 1.5 acres of wetland for each acre of wetland affected by the activity. Evidence of the mitigation can be provided by a written affidavit demonstrating a purchase of credits from any of the wetland mitigation banks that are located in the state and that are approved by the department or by an alternative mitigation project approved by the department.

281.165 History History: 1999 a. 9; 2011 a. 6, 118; 2015 a. 196.

281.17 281.17 Water quality and quantity; specific regulations.

281.17(2) (2) The department shall supervise chemical treatment of waters for the suppression of nuisance-producing organisms that are not regulated by the program established under s. 23.24 (2). It may purchase equipment and may make a charge for the use of the same and for materials furnished, together with a per diem charge for any services performed in such work. The charge shall be sufficient to reimburse the department for the use of the equipment, the actual cost of materials furnished, and the actual cost of the services rendered.

281.17(2m) (2m) In permitting under its authority under sub. (2) the chemical treatment of water for the suppression of mosquito larvae in the cities of Brookfield and La Crosse, the department may not impose as a condition to that permission a requirement that monitoring or additional testing be conducted as to the effectiveness or the impact of the treatment.

281.17(3) (3) The department shall promulgate rules establishing an examining program for the certification of operators of water systems, wastewater treatment plants and septage servicing vehicles operated under a license issued under s. 281.48 (3), setting such standards as the department finds necessary to accomplish the purposes of this chapter and chs. 285 and 289 to 299, including requirements for continuing education. The department may charge applicants a fee for certification, except that the department may not require an individual who is eligible for the veterans fee waiver program under s. 45.44 to pay a fee. All moneys collected under this subsection for the certification of operators of water systems, wastewater treatment plants and septage servicing vehicles shall be credited to the appropriation under s. 20.370 (4) (bL). No person may operate a water systems, wastewater treatment plant or septage servicing vehicle without a valid certificate issued under this subsection. The department may suspend or revoke a certificate issued under this subsection for a violation of any statute or rule relating to the operation of a water system or wastewater treatment plant or to septage servicing, for failure to fulfill the continuing education requirements or as provided under s. 145.20 (5). The owner of any wastewater treatment plant shall be, or shall employ, an operator certified under this subsection who shall be responsible for plant operations, unless the department by rule provides otherwise. In this subsection, “wastewater treatment plant” means a system or plant used to treat industrial wastewater, domestic wastewater or any combination of industrial wastewater and domestic wastewater.

281.17(5) (5) The department may prohibit the installation or use of septic tanks in any area of the state where the department finds that the use of septic tanks would impair water quality. The department shall prescribe alternate methods for waste treatment and disposal in such prohibited areas.

281.17(6) (6) On and after December 31, 1965, the sale and use of nondegradable detergents containing alkyl benzene sulfonate is prohibited in this state.

281.17(7) (7) Discharge of mercury compounds and metallic mercury into the waters of this state by any person shall be limited to fifteen-hundredths of a pound of mercury per day averaged over a 30-day period, and not more than one-half pound in any one day. The department may establish lower maximum discharge limits by rule.

281.17(8) (8) 

281.17(8)(a) (a) The department may establish, administer and maintain a safe drinking water program no less stringent than the requirements of the safe drinking water act, 42 USC 300f to 300j-26.

281.17(8)(b) (b) Notwithstanding par. (a) and s. 280.11 (1), the department may not require a municipal water system to provide continuous disinfection of the water that it provides, unless one of the following applies:

281.17(8)(b)1. 1. Continuous disinfection is required under federal law.

281.17(8)(b)2. 2. Water quality data, well construction, or water system construction indicate a potential health hazard.

281.17(9) (9) The department may require owners of water systems to demonstrate the technical, managerial and financial capacity to comply with national primary drinking water regulations under 42 USC 300g-1 and may assist owners of water systems to develop that capacity.

281.17(10) (10) 

281.17(10)(a) (a) No person may conduct an activity for which the department denies a water quality certification required by rules promulgated under this subchapter to implement 33 USC 1341 (a).

281.17(10)(b) (b) No person may violate a condition imposed by the department in a water quality certification required by rules promulgated under this subchapter to implement 33 USC 1341 (a).

281.17(10)(c) (c) This subsection does not apply to discharges into wetlands that are subject to regulation under s. 281.36.

281.17 History History: 1995 a. 227 ss. 380, 384, 387, 389, 392, 418, 420; 1995 a. 378 s. 43; 1997 a. 27, 35; 1999 a. 147; 2001 a. 16, 109; 2003 a. 310; 2005 a. 347; 2011 a. 19, 118, 209.

281.17 Cross-reference Cross-reference: See also chs. NR 100, 107, 114, 142 and 815, Wis. adm. code.

281.17 Annotation Madison’s power to forbid chemical treatment of Madison lakes was withdrawn by s. 144.025 (2) (i) [now sub. (2)]. Wisconsin’s Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518, 271 N.W.2d 69 (1978).

281.17 Annotation A municipality has no jurisdiction over chemical treatment of waters to suppress aquatic nuisances. The department is granted statewide supervision over aquatic nuisance control under s. 144.025 (2) (i) [now sub. (2)]. Applications for permits to chemically treat aquatic nuisances under s. 144.025 (2) (i) [now sub. (2)] may be denied even though statutory and regulatory requirements have been met if such chemical treatment would be counter-productive in achieving the goals set out in s. 144.025 (1). 63 Atty. Gen. 260.

281.19 281.19 Orders.

281.19(1) (1) The department may issue general orders, and adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods and means for preventing and abating pollution of the waters of the state. Such general orders and rules shall be issued only after an opportunity to be heard thereon has been afforded to interested parties.

281.19(2) (2) 

281.19(2)(a) (a) The department may issue special orders directing particular owners to remedy violations of the safe drinking water program under s. 281.17 (8) and (9) or to secure such operating results toward the control of pollution of the waters of the state as the department prescribes, within a specified time. Pending efforts to comply with any order, the department may permit continuance of operations on such conditions as it prescribes. If any owner cannot comply with an order within the time specified, the owner may, before the date set in the order, petition the department to modify the order. The department may modify the order, specifying in writing the reasons therefor. If any order is not complied with within the time period specified, the department shall immediately notify the attorney general of this fact. After receiving the notice, the attorney general shall commence an action under s. 299.95.

281.19(2)(b) (b) The department may issue temporary emergency orders without prior hearing when the department determines that the protection of the public health necessitates such immediate action. Such emergency orders shall take effect at such time as the department determines. As soon as is practicable, the department shall hold a public hearing after which it may modify or rescind the temporary emergency order or issue a special order under par. (a).

281.19(3) (3) The department shall make investigations and inspections to insure compliance with any general or special order or rule which it issues. In the exercise of this power the department may require the submission and approval of plans for the installation of systems and devices for handling, treating or disposing of any wastes.

281.19(4) (4) The department may, under s. 254.59, order or cause the abatement of any nuisance affecting the waters of the state.

281.19(5) (5) If the department finds that a system or plant tends to create a nuisance or menace to health or comfort, it shall order the owner or the person in charge to secure such operating results as the department prescribes, within a specified time. If the order is not complied with, the department may order designated changes in operation, and if necessary, alterations or extension to the system or plant, or a new system or plant. If the department finds that the absence of a municipal system or plant tends to create a nuisance or menace to health or comfort, it may order the city, village, town or town sanitary district embracing the area where such conditions exist to prepare and file complete plans of a corrective system as provided by s. 281.41, and to construct such system within a specified time.

281.19(6) (6) Orders issued by the department shall be signed by the person designated by the board.

281.19(7) (7) In cases of noncompliance with any order issued under sub. (2) or (5) or s. 281.20 (1), the department may take the action directed by the order, and collect the costs thereof from the owner to whom the order was directed. The department shall have all the necessary powers needed to carry out this subsection including powers granted municipalities under ss. 66.0821 and 200.01 to 200.15. It shall also be eligible for financial assistance under ss. 281.55, 281.57, 281.58 and 281.59.

281.19(8) (8) Any owner or other person in interest may secure a review of the necessity for and reasonableness of any order of the department under this section or s. 281.20 in the following manner:

281.19(8)(a) (a) They shall first file with the department a verified petition setting forth specifically the modification or change desired in such order. Such petition must be filed within 60 days of the issuance of the orders sought to be reviewed. Upon receipt of such a petition the department shall order a public hearing thereon and make such further investigations as it shall deem advisable. Pending such review and hearing, the department may suspend such orders under terms and conditions to be fixed by the department on application of any such petitioner. The department shall affirm, repeal or change the order in question within 60 days after the close of the hearing on the petition.

281.19(8)(b) (b) The determination of the department shall be subject to review as provided in ch. 227.

281.19 History History: 1995 a. 227 ss. 378, 379, 381, 386, 388, 390, 391, 397, 987; 1997 a. 27, 193; 1999 a. 32; 1999 a. 150 s. 672.

281.19 Annotation The Department of Natural Resources is authorized, not required, to set standards for sewer extension approvals and may process sewer extension applications on a case by case basis under s. 144.025 (2) (c) [now sub. (1)]. Wisconsin’s Environmental Decade, Inc. v. DNR, 82 Wis. 2d 97, 260 N.W.2d 674 (1978).

281.19 Annotation The Department of Natural Resources has the authority to order a municipality to construct a public water supply upon a finding that the absence of a public water supply constitutes a nuisance or menace to health or comfort, even if the electors of the municipality vote against construction in a referendum. 60 Atty. Gen. 523.

281.20 281.20 Orders; nonpoint source pollution.

281.20(1) (1) Under the procedure specified in sub. (3), the department may do any of the following:

281.20(1)(a) (a) Order or cause the abatement of pollution which the department, in consultation with the department of agriculture, trade and consumer protection if the source is agricultural, has determined to be significant and caused by a nonpoint source, as defined in s. 281.65 (2) (b), including pollution which causes the violation of a water quality standard, pollution which significantly impairs aquatic habitat or organisms, pollution which restricts navigation due to sedimentation, pollution which is deleterious to human health or pollution which otherwise significantly impairs water quality, except that under this paragraph the department may not order or cause the abatement of any pollution caused primarily by animal waste or of pollution from an agricultural source that is located in a priority watershed or priority lake area unless the source is designated as a critical site in a priority watershed or priority lake plan under s. 281.65 (5m) or a modification to such a plan under s. 281.65 (5s).

281.20(1)(b) (b) If it provided notice under s. 281.65 (5w), order the owner or operator of a source that is designated as a critical site in a priority watershed or priority lake plan under s. 281.65 (5m) or in a modification to such a plan under s. 281.65 (5s) to implement best management practices, but not with respect to any pollution caused primarily by animal waste.

281.20(3) (3) 

281.20(3)(a) (a)

281.20(3)(a)1. 1. If the department determines that it is authorized to issue an order under sub. (1) (a) to abate pollution caused by a nonpoint source, the department shall send a written notice of intent to issue the order to abate the pollution to the person whom the department determines to be responsible for the nonpoint source.

281.20(3)(a)2. 2. If the department determines under sub. (1) (b) that an owner or operator is required to implement best management practices in a priority watershed or priority lake area, the department shall send a written notice of intent to issue an order to implement the designated best management practices to the owner or operator.

281.20(3)(a)3. 3. The notice of intent to issue an order shall describe the department’s findings and intent, and shall include a date by which that person is required to abate the pollution or implement the best management practices. That date shall be at least one year after the date of the notice unless the department determines that the pollution is causing or will cause severe water quality degradation that could be mitigated or prevented by abatement action taken in less than one year. In its determination under this subsection, the department shall consider the nature of the actual or potential damage caused by the pollution and the feasibility of measures to abate that pollution.

281.20(3)(b) (b) If the nonpoint source that is the subject of a notice under par. (a) is agricultural, the department shall send the notice to the land conservation committee created under s. 92.06 of any county in which the source is located. If the notice is issued under par. (a) 2., the land conservation committee may disapprove issuance of an order within 60 days after the department issues the notice of intent to issue the order.

281.20(3)(c) (c) If the nonpoint source which is the subject of a notice under par. (a) is agricultural, the department shall send the notice to the department of agriculture, trade and consumer protection. The department of agriculture, trade and consumer protection shall do all of the following:

281.20(3)(c)1. 1. Upon receipt of the notice and in cooperation with the land conservation committee, provide to the person whom the department has determined to be responsible for the nonpoint source under sub. (1) (a) a listing of management practices which, if followed, would reduce pollution to an amount determined to be acceptable by the department, in consultation with either the department of agriculture, trade and consumer protection or the land conservation committee. The list shall, with reasonable limits, set forth all of the options which are available to the person to reduce pollution to that amount of pollution. The department of agriculture, trade and consumer protection shall provide to each person receiving a notice an explanation of financial aids and technical assistance which may be available to the person for the abatement of pollution or the implementation of best management practices from the department of agriculture, trade and consumer protection under s. 92.14 and from other sources.

281.20(3)(c)2. 2. Issue a report to the department within one year after the date of the notice describing the actions taken by the person receiving the notice and a recommendation as to whether the department should issue an order to abate the pollution or implement the best management practices. Notwithstanding par. (a), the department may not issue an order until the department receives that report unless the department determines that the pollution is causing or will cause severe water quality degradation which could be mitigated or prevented by abatement action taken in less than one year and unless the department of agriculture, trade and consumer protection files a concurring determination in writing with the department within 30 days after receiving notice of the department’s determination.

281.20(3)(d) (d) The department may issue a temporary emergency order prior to issuing a notice under par. (a) if all of the following apply:

281.20(3)(d)1. 1. The department determines that the pollution is causing or will cause severe water quality degradation.

281.20(3)(d)2. 2. The abatement action required by the order does not involve a capital expenditure.

281.20(3)(d)3. 3. If the nonpoint source is agricultural, the department provides a copy of the temporary emergency order to the department of agriculture, trade and consumer protection and to the land conservation committee created under s. 92.06 in every county in which the nonpoint source is located.