Chapter 281

281.34(8) (8) Groundwater protection areas.

281.34(8)(a) (a) The department shall promulgate rules identifying class I, class II, and class III trout streams for the purposes of this section. The department shall identify as a class I trout stream a stream or portion of a stream with a self-sustaining population of trout. The department shall identify as a class II trout stream a stream or portion of a stream that contains a population of trout made up of one or more age groups, above the age one year, in sufficient numbers to indicate substantial survival from one year to the next but in which stocking is necessary to fully utilize the available trout habitat or to sustain the fishery. The department shall identify as a class III trout stream a stream or portion of a stream that has marginal trout habitat with no natural reproduction of trout occurring, requiring annual stocking of trout to provide trout fishing, and generally without carryover of trout from one year to the next. In the rules under this paragraph, the department shall identify any class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history.

281.34(8)(b) (b) The department shall create accurate images of groundwater protection areas.

281.34(8)(c) (c) A person who proposes to construct a high capacity well may request the department to determine whether the proposed location of the high capacity well is within a groundwater protection area.

281.34(8)(d) (d) The department shall administer a program to mitigate the effects of wells constructed before May 7, 2004, that are located in groundwater protection areas. Mitigation may include abandonment of wells and replacement of wells, if necessary, and management strategies. Under the mitigation program, the department may order the owner of a well constructed before May 7, 2004, that is located in a groundwater protection area to undertake mitigation but only if the department provides funding for the full cost of the mitigation, except that full funding is not required if the department is authorized under ch. 280 to require the well to be abandoned because of issues regarding public health.

281.34(9) (9) Groundwater management areas.

281.34(9)(a) (a) The department shall, by rule, designate 2 groundwater management areas including and surrounding Brown County and Waukesha County consisting of the entire area of each city, village, and town at least a portion of which is within the area in which, on May 7, 2004, the groundwater potentiometric surface has been reduced 150 feet or more from the level at which the potentiometric surface would be if no groundwater had been pumped.

281.34(9)(b) (b) The department shall assist local governmental units and regional planning commissions in groundwater management areas designated under par. (a) by providing advice, incentives, and funding for research and planning related to groundwater management.

281.34(9)(c) (c) If the groundwater advisory committee created under 2003 Wisconsin Act 310, section 15 (2) (b) does not issue the report under 2003 Wisconsin Act 310, section 15 (2) (e) by January 1, 2007, the department shall promulgate rules using its authority under ss. 281.12 (1) and 281.35 to address the management of groundwater in groundwater management areas.

281.34(9)(d) (d) If the department promulgates rules under par. (c) and the rules require mitigation in the same or a similar manner as under sub. (8) (d), the department may not require mitigation for a well under the rules unless the department provides funding for the full cost of the mitigation, except that full funding is not required if the department is authorized under ch. 280 to require the well to be abandoned because of issues regarding public health.

281.34(10) (10) Research and monitoring. To aid in the administration of this section the department shall, with the advice of the groundwater coordinating council, conduct monitoring and research related to all of the following:

281.34(10)(a) (a) Interaction of groundwater and surface water.

281.34(10)(b) (b) Characterization of groundwater resources.

281.34(10)(c) (c) Strategies for managing water.

281.34 History History: 2003 a. 310; 2007 a. 227; 2009 a. 28; 2013 a. 20; 2015 a. 177; 2017 a. 10.

281.34 Cross-reference Cross-reference: See also ch. NR 820, Wis. adm. code.

281.34 Annotation Through ss. 281.11 and 281.12, the legislature has delegated the state’s public trust duties to the Department of Natural Resources (DNR) in the context of its regulation of high capacity wells and their potential effect on navigable waters. For all proposed high capacity wells, the legislature has expressly granted DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application, which provides DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170. See also Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.

281.34 Annotation There is nothing in either this section or s. 281.35 that limits the Department of Natural Resources’ (DNR) authority to consider the environmental impacts of a proposed high capacity well, nor is there any language in subch. II of this chapter that requires DNR to issue a permit for a well if the statutory requirements are met and no formal review or findings are required. There being no language expressly revoking or limiting DNR’s authority and general duty to protect and manage waters of the state, DNR retains such authority and general duty to consider whether a proposed high capacity well may impact waters of the state. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170. See also Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.

281.34 Annotation The Department of Natural Resources (DNR) is required to consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state. Upon what evidence, and under what circumstances, that duty is triggered is a highly fact-specific matter that depends upon the information submitted by the well owner in the well permit application and any other information submitted to DNR decision makers. DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application such that it has an obligation to consider environmental concerns. Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, 08-3170.

281.34 Annotation The legislature has granted the Department of Natural Resources the broad but explicit authority to consider the environmental effects of a proposed high capacity well under s. 281.12. That its explicit authority to do so is broad does not negate that authority. That authority to consider the environmental effects of all high capacity wells is consistent with s. 227.10 (2m). Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.

281.34 Annotation Groundwater: Diminishing Resource, Increasing Conflict. Westerberg. Wis. Law. July/Aug. 2015.

281.343 281.343 Great Lakes — St. Lawrence River Basin Water Resources Compact.

281.343(1) (1) Legislative determination. The legislature determines that it is in the interests of this state to ratify the Great Lakes — St. Lawrence River Basin Water Resources Compact. Nothing in this section may be interpreted to change the application of the public trust doctrine under article IX, section 1, of the Wisconsin Constitution or to create any new public trust rights.

281.343(1b) (1b) Ratification. The Great Lakes — St. Lawrence River Basin Water Resources Compact, contained in subs. (1e) to (9), is ratified and approved, as implemented and interpreted in ss. 14.95, 281.346, and 281.348.

281.343(1e) (1e) Definitions. In this section, except as otherwise required by the context:

281.343(1e)(a) (a) “Adaptive management” means a water resources management system that provides a systematic process for evaluation, monitoring, and learning from the outcomes of operational programs and adjustment of policies, plans, and programs based on experience and the evolution of scientific knowledge concerning water resources and water dependent natural resources.

281.343(1e)(am) (am) “Agreement” means the Great Lakes — St. Lawrence River Basin Sustainable Water Resources Agreement.

281.343(1e)(b) (b) “Applicant” means a person who is required to submit a proposal that is subject to management and regulation under this compact. “Application” has a corresponding meaning.

281.343(1e)(c) (c) “Basin” or “Great Lakes — St. Lawrence River Basin” means the watershed of the Great Lakes and the St. Lawrence River upstream from Trois-Rivieres, Quebec within the jurisdiction of the parties.

281.343(1e)(cm) (cm) “Basin ecosystem” or “Great Lakes — St. Lawrence River Basin ecosystem” means the interacting components of air, land, water, and living organisms, including humankind, within the basin.

281.343(1e)(d) (d) “Community within a straddling county” means any incorporated city, town, or the equivalent thereof, that is located outside the basin but wholly within a county that lies partly within the basin and that is not a straddling community.

281.343(1e)(dm) (dm) “Compact” means this compact.

281.343(1e)(e) (e) “Consumptive use” means that portion of the water withdrawn or withheld from the basin that is lost or otherwise not returned to the basin due to evaporation, incorporation into products, or other processes.

281.343(1e)(em) (em) “Council” means the Great Lakes — St. Lawrence River Basin Water Resources Council, created by this compact.

281.343(1e)(f) (f) “Council review” means the collective review by the council members as described in subs. (4) to (4z).

281.343(1e)(fm) (fm) “County” means the largest territorial division for local government in a state. The county boundaries shall be defined as those boundaries that exist as of December 13, 2005.

281.343(1e)(g) (g) “Cumulative impacts” means the impact on the basin ecosystem that results from incremental effects of all aspects of a withdrawal, diversion, or consumptive use in addition to other past, present, and reasonably foreseeable future withdrawals, diversions, and consumptive uses regardless of who undertakes the other withdrawals, diversions, and consumptive uses. Cumulative impacts can result from individually minor but collectively significant withdrawals, diversions, and consumptive uses taking place over a period of time.

281.343(1e)(gm) (gm) “Decision-making standard” means the decision-making standard established by sub. (4r) for proposals subject to management and regulation in sub. (4p).

281.343(1e)(h) (h) “Diversion” means a transfer of water from the basin into another watershed, or from the watershed of one of the Great Lakes into that of another by any means of transfer, including but not limited to a pipeline, canal, tunnel, aqueduct, channel, modification of the direction of a water course, a tanker ship, tanker truck, or rail tanker but does not apply to water that is used in the basin or a Great Lake watershed to manufacture or produce a product that is then transferred out of the basin or watershed. “Divert” has a corresponding meaning.

281.343(1e)(i) (i) “Environmentally sound and economically feasible water conservation measures” mean those measures, methods, technologies, or practices for efficient water use and for reduction of water loss and waste or for reducing a withdrawal, consumptive use, or diversion that are environmentally sound, reflect best practices applicable to the water use sector, are technically feasible and available, are economically feasible and cost-effective based on an analysis that considers direct and avoided economic and environmental costs, and consider the particular facilities and processes involved, taking into account the environmental impact, age of equipment and facilities involved, the processes employed, energy impacts, and other appropriate factors.

281.343(1e)(im) (im) “Exception” means a transfer of water that is excepted under sub. (4n) from the prohibition against diversions in sub. (4m).

281.343(1e)(j) (j) “Exception standard” means the standard for exceptions established in sub. (4n) (d).

281.343(1e)(jm) (jm) “Intrabasin transfer” means the transfer of water from the watershed of one of the Great Lakes into the watershed of another Great Lake.

281.343(1e)(k) (k) “Measures” means any legislation, law, regulation, directive, requirement, guideline, program, policy, administrative practice, or other procedure.

281.343(1e)(km) (km) “New or increased diversion” means a new diversion, an increase in an existing diversion, or the alteration of an existing withdrawal so that it becomes a diversion.

281.343(1e)(L) (L) “New or increased withdrawal or consumptive use” means a new withdrawal or consumptive use or an increase in an existing withdrawal or consumptive use.

281.343(1e)(Lm) (Lm) “Originating party” means the party within whose jurisdiction an application or registration is made or required.

281.343(1e)(n) (n) “Party” means a state that is a party to this compact.

281.343(1e)(nm) (nm) “Person” means a human being or a legal person, including a government or a 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.

281.343(1e)(o) (o)

281.343(1e)(o)1. 1. “Product” means something produced in the basin by human or mechanical effort or through agricultural processes and used in manufacturing, commercial, or other processes or intended for intermediate or end use consumers.

281.343(1e)(o)2. 2. Water used as part of the packaging of a product shall be considered to be part of the product.

281.343(1e)(o)3. 3. Other than water used as part of the packaging of a product, water that is used primarily to transport materials in or out of the basin is not a product or part of a product.

281.343(1e)(o)4. 4. Except as provided in subd. 2., water that is transferred as part of a public or private supply is not a product or part of a product.

281.343(1e)(o)5. 5. Water in its natural state such as in lakes, rivers, reservoirs, aquifers, or water basins is not a product.

281.343(1e)(om) (om) “Proposal” means a withdrawal, diversion, or consumptive use of water that is subject to this compact.

281.343(1e)(p) (p) “Province” means Ontario or Quebec.

281.343(1e)(pm) (pm) “Public water supply purposes” means water distributed to the public through a physically connected system of treatment, storage, and distribution facilities serving a group of largely residential customers that may also serve industrial, commercial, and other institutional operators. Water withdrawn directly from the basin and not through such a system shall not be considered to be used for public water supply purposes.

281.343(1e)(q) (q) “Regional body” means the members of the council and the premiers of Ontario and Quebec or their designee as established by the agreement.

281.343(1e)(qm) (qm) “Regional review” means the collective review by the regional body as described in sub. (4h).

281.343(1e)(r) (r) “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 shall be considered to be 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 shall be considered to be the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively, with a preference to the direct tributary stream watershed from which it was withdrawn.

281.343(1e)(rm) (rm) “Standard of review and decision” means the exception standard, decision-making standard, and reviews as outlined in subs. (4) to (4z).

281.343(1e)(s) (s) “State” means one of the states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, or Wisconsin or the Commonwealth of Pennsylvania.

281.343(1e)(t) (t) “Straddling community” means any incorporated city, town, or the equivalent thereof, wholly within any county that lies partly or completely within the basin, whose corporate boundary existing as of the effective date of this compact is partly within the basin or partly within 2 Great Lakes watersheds.

281.343(1e)(u) (u) “Technical review” means a detailed review conducted to determine whether or not a proposal that requires regional review under this compact meets the standard of review and decision following procedures and guidelines as set out in this compact.

281.343(1e)(v) (v) “Water” means groundwater or surface water contained within the basin.

281.343(1e)(w) (w) “Water dependent natural resources” means the interacting components of land, water, and living organisms affected by the waters of the basin.

281.343(1e)(x) (x) “Waters of the basin” or “basin water” means the Great Lakes and all streams, rivers, lakes, connecting channels, and other bodies of water, including tributary groundwater, within the basin.

281.343(1e)(y) (y) “Withdrawal” means the taking of water from surface water or groundwater. “Withdraw” has a corresponding meaning.

281.343(1m) (1m) Findings and purposes. The legislative bodies of the respective parties hereby find and declare:

281.343(1m)(a) (a) Findings:

281.343(1m)(a)1. 1. The waters of the basin are precious public natural resources shared and held in trust by the states;

281.343(1m)(a)2. 2. The waters of the basin are interconnected and part of a single hydrologic system;

281.343(1m)(a)3. 3. The waters of the basin can concurrently serve multiple uses. Such multiple uses include municipal, public, industrial, commercial, agriculture, mining, navigation, energy development and production, recreation, the subsistence, economic, and cultural activities of native peoples, water quality maintenance, and the maintenance of fish and wildlife habitat and a balanced ecosystem. And, other purposes are encouraged, recognizing that such uses are interdependent and must be balanced;

281.343(1m)(a)4. 4. Future diversions and consumptive uses of basin water resources have the potential to significantly impact the environment, economy, and welfare of the Great Lakes — St. Lawrence River region;

281.343(1m)(a)5. 5. Continued sustainable, accessible, and adequate water supplies for the people and economy of the basin are of vital importance; and

281.343(1m)(a)6. 6. The parties have a shared duty to protect, conserve, restore, improve, and manage the renewable but finite waters of the basin for the use, benefit, and enjoyment of all their citizens, including generations yet to come. The most effective means of protecting, conserving, restoring, improving, and managing the basin waters is through the joint pursuit of unified and cooperative principles, policies, and programs mutually agreed upon, enacted, and adhered to by all parties.

281.343(1m)(b) (b) Purposes:

281.343(1m)(b)1. 1. To act together to protect, conserve, restore, improve, and effectively manage the waters and water dependent natural resources of the basin under appropriate arrangements for intergovernmental cooperation and consultation because current lack of full scientific certainty should not be used as a reason for postponing measures to protect the basin ecosystem;

281.343(1m)(b)2. 2. To remove causes of present and future controversies;

281.343(1m)(b)3. 3. To provide for cooperative planning and action by the parties with respect to such water resources;

281.343(1m)(b)4. 4. To facilitate consistent approaches to water management across the basin while retaining state management authority over water management decisions within the basin;

281.343(1m)(b)5. 5. To facilitate the exchange of data, strengthen the scientific information base upon which decisions are made, and engage in consultation on the potential effects of proposed withdrawals and losses on the waters and water dependent natural resources of the basin;

281.343(1m)(b)6. 6. To prevent significant adverse impacts of withdrawals and losses on the basin’s ecosystems and watersheds;

281.343(1m)(b)7. 7. To promote interstate and state-provincial comity; and

281.343(1m)(b)8. 8. To promote an adaptive management approach to the conservation and management of basin water resources that recognizes, considers, and provides adjustments for the uncertainties in, and evolution of, scientific knowledge concerning the basin’s waters and water dependent natural resources.

281.343(1s) (1s) Science.

281.343(1s)(a) (a) The parties commit to provide leadership for the development of a collaborative strategy with other regional partners to strengthen the scientific basis for sound water management decision making under this compact.

281.343(1s)(b) (b) The strategy shall guide the collection and application of scientific information to support: