Chapter 281

281.31(10) (10) A person aggrieved by an order or decision of the department under this section may cause its review under ch. 227.

281.31 History History: 1975 c. 232; 1977 c. 29; 1981 c. 330, 339; 1983 a. 189, 416; 1993 a. 246; 1995 a. 201; 1995 a. 227 s. 432; Stats. 1995 s. 281.31; 2013 a. 80; 2013 a. 151 s. 28; 2015 a. 55; 2017 a. 164.

281.31 Cross-reference Cross-reference: See also chs. NR 115 and 117, Wis. adm. code.

281.31 Annotation A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now this section and s. 59.692] does not amount to an unconstitutional taking of property. Discussing police powers and eminent domain. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

281.31 Annotation The concept that an owner of real property can, in all cases, do as the owner pleases with the owner’s property is no longer in harmony with the realities of society. The “reasonable use” rule codified in the second Restatement of the Law of Torts is adopted. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974).

281.31 Annotation By enactment of this section and s. 59.692, the legislature intended that towns would not have authority to regulate shorelands except where such regulation fell within the language of s. 59.692 (2) (b) [now s. 59.692 (2) (b), (bg), and (bm)]. That statutory scheme does not distinguish between towns with village powers and those without. Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, 12-2058.

281.31 Annotation A drainage board is subject to shoreland zoning ordinances, as is any other person. Navigable drainage ditches are within the jurisdiction of the Department of Natural Resources under s. 144.26 (2) (d) [now sub. (2) (d)]. 63 Atty. Gen. 355.

281.31 Annotation The Necessity of Zoning Variance or Amendments Notice to the Wisconsin Department of Natural Resources Under the Shoreland Zoning and Navigable Waters Protection Acts. Whipple. 57 MLR 25 (1973).

281.31 Annotation The Public Trust Doctrine. Dumphy. 59 MLR 787 (1976).

281.31 Annotation Water Quality Protection for Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution. Kusler. 1970 WLR 35.

281.31 Annotation This Land Is Whose Land? Changing Concepts of Land as Property. Large. 1973 WLR 1039.

281.31 Annotation Wisconsin’s Shoreland Management Program: An Assessment with Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.

281.33 281.33 Construction site erosion control and storm water management.

281.33(1) (1) Objectives. To aid in the fulfillment of the state’s role as trustee of its navigable waters, to promote public health, safety and general welfare and to protect natural resources, it is declared to be in the public interest to make studies, establish policies, make plans, authorize municipal construction site erosion control and storm water management zoning ordinances for the efficient use, conservation, development and protection of this state’s groundwater, surface water, soil and related resources and establish a state storm water management plan for the efficient use, conservation, development and protection of this state’s groundwater, surface water, soil and related resources while at the same time encouraging sound economic growth in this state. The purposes of the municipal ordinances and state plan shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; prevent and control soil erosion; prevent and control the adverse effects of storm water; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth.

281.33(2) (2) State storm water management plan. The department, in consultation with the department of safety and professional services, shall promulgate by rule a state storm water management plan. This state plan is applicable to activities contracted for or conducted by any agency, as defined under s. 227.01 (1) but also including the office of district attorney, unless that agency enters into a memorandum of understanding with the department of natural resources in which that agency agrees to regulate activities related to storm water management. The department shall coordinate the activities of agencies, as defined under s. 227.01 (1), in storm water management and make recommendations to these agencies concerning activities related to storm water management.

281.33(3) (3) Standards related to storm water and certain construction activities.

281.33(3)(a) (a)

281.33(3)(a)1. 1. Except as restricted under subd. 2., the department shall establish by rule uniform statewide standards for all of the following:

281.33(3)(a)1.a. a. Activities related to construction site erosion control at sites that have a land disturbance that is one acre or more in area.

281.33(3)(a)1.b. b. Activities related to construction site erosion control at sites that have a land disturbance that is less than one acre and to which ss. 101.1206 and 101.653 do not apply.

281.33(3)(a)1.c. c. Storm water management.

281.33(3)(a)2. 2. The department, in cooperation with the department of transportation, shall establish by rule uniform statewide standards for activities related to construction site erosion control and storm water management if those activities concern street, highway, road or bridge construction, enlargement, relocation or reconstruction.

281.33(3)(a)3. 3. Uniform statewide standards for storm water management established under this paragraph are applicable to the state plan under sub. (2). The department shall require a city, village, town, or county to comply with uniform statewide standards established under this paragraph for any construction site erosion control and storm water management zoning ordinance enacted under s. 59.693, 60.627, 61.354 or 62.234.

281.33(3)(a)4. 4. The department shall identify low-cost practices which would enable a person to comply with these uniform statewide standards.

281.33(3)(b) (b) The uniform statewide standards for construction site erosion control at sites described in par. (a) 1. a. and b. shall provide for the regulation of any construction activity, at such a site, that:

281.33(3)(b)1. 1. Involves the grading, removal of protective ground cover or vegetation, excavation, land filling or other land disturbing activity which affects an area of 4,000 square feet or more.

281.33(3)(b)2. 2. Involves the excavation or filling or a combination of excavation and filling which affects 400 cubic yards or more of dirt, sand or other excavation or fill material.

281.33(3)(b)3. 3. Involves street, highway, road or bridge construction, enlargement, relocation or reconstruction.

281.33(3)(b)4. 4. Involves the laying, repairing, replacing or enlarging of an underground pipe or facility for a distance of 300 feet or more.

281.33(3)(b)5. 5. Requires a subdivision plat approval or a certified survey.

281.33(3)(c) (c) The uniform statewide standards for storm water management shall provide for the regulation of any construction activity which:

281.33(3)(c)1. 1. Is a residential development with a gross aggregate area of 5 acres or more.

281.33(3)(c)2. 2. Is a residential development with a gross aggregate area of 3 acres or more with at least 1.5 acres of impervious surfaces.

281.33(3)(c)3. 3. Is a development other than a residential development with a gross aggregate area of 3 acres or more.

281.33(3)(c)4. 4. Is likely to result in storm water runoff which exceeds the safe capacity of the existing drainage facilities or receiving body of water, which causes undue channel erosion, which increases water pollution by scouring or the transportation of particulate matter or which endangers downstream property.

281.33(3)(d) (d) If the department determines that rules promulgated under s. 281.16 (2) prescribe performance standards that meet the requirements for establishing uniform statewide standards under this subsection, the department’s rules promulgated under s. 281.16 (2) satisfy the rule-making requirements under this subsection and shall apply as if they were promulgated under this subsection.

281.33(3m) (3m) Requirements for ordinances. A city, village, town, or county may enact an ordinance regulating the conduct regulated under this section only if the ordinance strictly conforms with uniform statewide standards established under sub. (3).

281.33(4) (4) Model ordinances; state plan; distribution. The department shall prepare a model zoning ordinance for construction site erosion control at sites described in sub. (3) (a) 1. a. and b. and for storm water management in the form of an administrative rule. The model ordinance is subject to s. 227.19 and other provisions of ch. 227 in the same manner as other administrative rules. Following the promulgation of the model ordinance as a rule, the department shall distribute a copy of the model ordinance to any city, village, town or county that submits a request. The department shall distribute a copy of the state plan to any agency which submits a request.

281.33(5) (5) Cooperation. The department, the municipalities, and all state agencies shall cooperate to accomplish the objective of this section. To that end, the department shall consult with the governing bodies of municipalities to secure uniformity of regulations, shall prepare model ordinances under sub. (4), shall extend assistance to municipalities under this section, shall prepare the plan under sub. (2), shall obtain uniformity through the implementation of this plan and the utilization of memoranda of understanding which are substantially similar to the plan, and shall extend assistance to agencies under this section.

281.33(6) (6) Exceptions.

281.33(6)(a) (a) Notwithstanding subs. (3) and (3m), a city, village, town, or county may enact and enforce provisions of an ordinance that are stricter than the uniform standards for storm water management established by the department under this section if the stricter provisions are necessary to do any of the following:

281.33(6)(a)1. 1. Control storm water quantity or peak flow to address existing flooding problems or prevent future flooding problems, except that an ordinance under this subdivision may not require more than 90 percent of the difference between the pre-development annual runoff volume at a site and the post-development annual runoff volume at that site to be retained on site.

281.33(6)(a)2. 2. Comply with federally approved total maximum daily load requirements.

281.33(6)(b) (b) Subsection (3m) does not apply to provisions of an ordinance enacted by a city, village, town, or county if the provisions of the ordinance regulate storm water management relating to existing development or redevelopment, as defined in NR 151.002, Wis. Adm. Code.

281.33 History History: 1983 a. 416; Stats. 1983 s. 144.265; 1983 a. 538 s. 150; Stats. 1983 s. 144.266; 1985 a. 182 s. 57; 1987 a. 27; 1989 a. 31; 1993 a. 16, 246; 1995 a. 27 ss. 4303cm, 9116 (5); 1995 a. 201; 1995 a. 227 s. 434; Stats. 1995 s. 281.33; 2009 a. 28 ss. 2075d to 2075j, 2576n, 2576p; 2011 a. 32; 2013 a. 20; 2017 a. 243.

281.33 Cross-reference Cross-reference: See also chs. NR 152 and 216, Wis. adm. code.

281.34 281.34 Groundwater withdrawals.

281.34(1) (1) Definitions. In this section:

281.34(1)(ae) (ae) “Fire protection well” means a well used primarily for fire protection purposes.

281.34(1)(am) (am) “Groundwater protection area” means an area within 1,200 feet of any of the following:

281.34(1)(am)1. 1. An outstanding resource water identified under s. 281.15 that is not a trout stream.

281.34(1)(am)2. 2. An exceptional resource water identified under s. 281.15 that is not a trout stream.

281.34(1)(am)3. 3. A class I, class II, or class III trout stream, other than a class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history, as identified under sub. (8) (a).

281.34(1)(b) (b) “High capacity well” means a well, except for a residential well or fire protection well, that, together with all other wells on the same property, except for residential wells and fire protection wells, has a capacity of more than 100,000 gallons per day.

281.34(1)(c) (c) “Local governmental unit” means a city, village, town, county, town sanitary district, utility district under s. 66.0827 that provides water, public inland lake protection and rehabilitation district that has town sanitary district powers under s. 33.22 (3), joint local water authority created under s. 66.0823, or municipal water district under s. 198.22.

281.34(1)(d) (d) “Owner” means a person who owns property on which a well is located or proposed to be located or the designated representative of such a person.

281.34(1)(e) (e) “Potentiometric surface” means a measure of pressure of groundwater in an aquifer based on the level to which groundwater will rise in a well placed in the aquifer.

281.34(1)(ek) (ek) “Reconstruct” means to modify original construction including deepening, lining, installing or replacing a screen, and underreaming.

281.34(1)(em) (em) “Residential well” means a well that has a capacity of 100,000 gallons per day or less and that is used primarily to provide water to a single-family or multifamily residence.

281.34(1)(f) (f) “Spring” means an area of concentrated groundwater discharge occurring at the surface of the land that results in a flow of at least one cubic foot per second at least 80 percent of the time.

281.34(1)(g) (g) “Water loss” means a loss of water from the basin from which it is withdrawn as a result of interbasin diversion or consumptive use or both.

281.34(1)(h) (h) “Well” means any drillhole or other excavation or opening deeper than it is wide that extends more than 10 feet below the ground surface and is constructed for the purpose of obtaining groundwater.

281.34(2) (2) Approval required for high capacity wells. Except as provided under sub. (2g), an owner shall apply to the department for approval before construction of a high capacity well begins. Except as provided under sub. (2g), no person may construct or withdraw water from a high capacity well without the approval of the department under this section or under s. 281.17 (1), 2001 stats. An owner applying for approval under this subsection shall pay a fee of $500.

281.34(2g) (2g) Repair, replacement, reconstruction, and transfer of ownership of an approved high capacity well.

281.34(2g)(a) (a) Except as provided in par. (e), if a high capacity well has been approved under this section or under s. 281.17 (1), 2001 stats., the owner of that well may take any of the following actions without obtaining an additional approval under this section:

281.34(2g)(a)1. 1. Repair and maintain the high capacity well.

281.34(2g)(a)2. 2. Construct a new high capacity well to replace the existing high capacity well if the new high capacity well will be constructed in accordance with department standards that apply to the construction of new high capacity wells on the date that construction of the replacement high capacity well begins, if the existing high capacity well is filled and sealed as provided in rules promulgated by the department, and if any of the following applies:

281.34(2g)(a)2.a. a. The purpose of replacement is to remedy or prevent contamination. The owner of the well shall submit documentation of the contamination to the department in the manner and form required by the department.

281.34(2g)(a)2.b. b. The replacement high capacity well will be drilled to substantially the same depth as the existing high capacity well and either will be located within a 75-foot radius of the existing high capacity well or will be located farther from the nearest groundwater protection area than the existing high capacity well and not be located within any other groundwater protection area.

281.34(2g)(a)3. 3. Reconstruct the high capacity well, if the reconstructed high capacity well is constructed to substantially the same depth and specifications as the existing high capacity well.

281.34(2g)(a)4. 4. Transfer the approval, concurrent with transferring the land on which the high capacity well is located, to the person to whom the land is transferred.

281.34(2g)(b) (b) The department may not impose a fee for any action taken under this subsection.

281.34(2g)(c) (c) No later than 90 days after taking any action under par. (a) 2., 3., or 4., the owner of the high capacity well shall notify the department of the action taken on a form prescribed by the department. For any action taken under par. (a) 2., the owner shall, on the same form, notify the department of the location of the replacement high capacity well and the method by which the existing well was filled and sealed.

281.34(2g)(d) (d) Except as provided in sub. (7), the conditions included in the approval for the high capacity well continue to apply after an owner takes any of the actions under par. (a).

281.34(2g)(e) (e) An owner of a well may not take an action under par. (a) if the action would be inconsistent with the conditions included in the approval for the high capacity well.

281.34(2m) (2m) Temporary dewatering wells. The department shall issue a single approval under sub. (2) for all high capacity wells constructed for one project, as determined by the department, for temporary dewatering of a construction site, including a construction site for a building, road, or utility. The department shall provide for amendments to a project under this subsection. A person applying for approval of high capacity wells for a project under this subsection is only required to pay one $500 fee.

281.34(3) (3) Notification required for other wells.

281.34(3)(a) (a) An owner shall notify the department of the location of a well that is not a high capacity well before construction of the well begins. An owner notifying the department under this subsection shall pay a fee of $50.

281.34(3)(b) (b) The department may appoint any person who is not an employee of the department as the department’s agent to accept and process notifications and collect the fees under par. (a).

281.34(3)(c) (c) Any person, including the department, who accepts and processes a well notification under par. (a) shall collect in addition to the fee under par. (a) a processing fee of 50 cents. An agent appointed under par. (b) may retain the processing fee to compensate the agent for the agent’s services in accepting and processing the notification.

281.34(4) (4) Environmental review.

281.34(4)(a) (a) The department shall review an application for approval of any of the following using the environmental review process in its rules promulgated under s. 1.11:

281.34(4)(a)1. 1. A high capacity well that is located in a groundwater protection area.

281.34(4)(a)2. 2. A high capacity well with a water loss of more than 95 percent of the amount of water withdrawn.

281.34(4)(a)3. 3. A high capacity well that may have a significant environmental impact on a spring.

281.34(4)(b) (b) If, under sub. (5) (b), (c), or (d), the department requests an environmental impact report under s. 23.11 (5) for a proposed high capacity well, the department may only request information in that report that relates to the decisions that the department makes under this section related to the proposed high capacity well.

281.34(5) (5) Standards and conditions for approval.

281.34(5)(a) (a) Public water supply. If the department determines that a proposed high capacity well may impair the water supply of a public utility engaged in furnishing water to or for the public, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that will ensure that the water supply of the public utility will not be impaired.

281.34(5)(b) (b) Groundwater protection area.