Chapter 281

281.343(4h)(d)5. 5. All parties shall exercise their best efforts to ensure that a technical review undertaken under subd. 3. or 4. does not unnecessarily delay the decision by the originating party on the application. Unless the applicant or the originating party otherwise requests, all technical reviews shall be completed no later than 60 days after the date the notice of the proposal was given to the regional body.

281.343(4h)(e) (e) Declaration of finding.

281.343(4h)(e)1. 1. The regional body shall meet to consider a proposal. The applicant shall be provided with an opportunity to present the proposal to the regional body at such time.

281.343(4h)(e)2. 2. The regional body, having considered the notice, the originating party’s technical review, any other independent technical review that is made, any comments or objections including the analysis of comments made by the public and first nations and federally recognized tribes, and any other information that is provided under this compact shall issue a declaration of finding that the proposal under consideration:

281.343(4h)(e)2.a. a. Meets the standard of review and decision;

281.343(4h)(e)2.b. b. Does not meet the standard of review and decision; or

281.343(4h)(e)2.c. c. Would meet the standard of review and decision if certain conditions were met.

281.343(4h)(e)3. 3. An originating party may decline to participate in a declaration of finding made by the regional body.

281.343(4h)(e)4. 4. The parties recognize and affirm that it is preferable for all members of the regional body to agree whether the proposal meets the standard of review and decision.

281.343(4h)(e)5. 5. If the members of the regional body who participate in the declaration of finding all agree, they shall issue a written declaration of finding with consensus.

281.343(4h)(e)6. 6. In the event that the members cannot agree, the regional body shall make every reasonable effort to achieve consensus within 25 days.

281.343(4h)(e)7. 7. Should consensus not be achieved, the regional body may issue a declaration of finding that presents different points of view and indicates each party’s conclusions.

281.343(4h)(e)8. 8. The regional body shall release the declarations of finding to the public.

281.343(4h)(e)9. 9. The originating party and the council shall consider the declaration of finding before making a decision on the proposal.

281.343(4j) (4j) Water management and regulation; proposals subject to prior notice.

281.343(4j)(a) (a) Beginning no later than 5 years after the effective date of this compact, the originating party shall provide all parties and the provinces with detailed and timely notice and an opportunity to comment within 90 days on any proposal for a new or increased consumptive use of 5,000,000 gallons per day or greater average in any 90-day period. Comments shall address whether or not the proposal is consistent with the standard of review and decision. The originating party shall provide a response to any such comment received from another party.

281.343(4j)(b) (b) A party may provide notice, an opportunity to comment, and a response to comments even if this is not required under par. (a). Any provision of such notice and opportunity to comment shall be undertaken only after consulting the applicant.

281.343(4L) (4L) Water management and regulation; council actions.

281.343(4L)(a) (a) Proposals for exceptions subject to council review shall be submitted by the originating party to the council for council review, and where applicable, to the regional body for concurrent review.

281.343(4L)(b) (b) The council shall review and take action on proposals in accordance with this compact and the standard of review and decision. The council shall not take action on a proposal subject to regional review pursuant to this compact unless the proposal shall have been first submitted to and reviewed by the regional body. The council shall consider any findings resulting from such review.

281.343(4m) (4m) Water management and regulation; prohibition of new or increased diversions. All new or increased diversions are prohibited, except as provided for in sub. (4n).

281.343(4n) (4n) Water management and regulation; exceptions to the prohibition of diversions.

281.343(4n)(a) (a) Straddling communities. A proposal to transfer water to an area within a straddling community but outside the basin or outside the source Great Lake watershed shall be excepted from the prohibition against diversions and be managed and regulated by the originating party provided that, regardless of the volume of water transferred, all of the water so transferred shall be used solely for public water supply purposes within the straddling community, and:

281.343(4n)(a)1. 1. All water withdrawn from the basin shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:

281.343(4n)(a)1.a. a. Is part of a water supply or wastewater treatment system that combines water from inside and outside of the basin;

281.343(4n)(a)1.b. b. Is treated to meet applicable water quality discharge standards and to prevent the introduction of invasive species into the basin;

281.343(4n)(a)1.c. c. Maximizes the portion of water returned to the source watershed as basin water and minimizes the surface water or groundwater from outside the basin;

281.343(4n)(a)2. 2. If the proposal results from a new or increased withdrawal of 100,000 gallons per day or greater average over any 90-day period, the proposal shall also meet the exception standard; and

281.343(4n)(a)3. 3. If the proposal results in a new or increased consumptive use of 5,000,000 gallons per day or greater average over any 90-day period, the proposal shall also undergo regional review.

281.343(4n)(b) (b) Intrabasin transfer. A proposal for an intrabasin transfer that would be considered a diversion under this compact, and not already excepted pursuant to par. (a), shall be excepted from the prohibition against diversions, provided that:

281.343(4n)(b)1. 1. If the proposal results from a new or increased withdrawal of less than 100,000 gallons per day average over any 90-day period, the proposal shall be subject to management and regulation at the discretion of the originating party.

281.343(4n)(b)2. 2. If the proposal results from a new or increased withdrawal of 100,000 gallons per day or greater average over any 90-day period and if the consumptive use resulting from the withdrawal is less than 5,000,000 gallons per day average over any 90-day period:

281.343(4n)(b)2.a. a. The proposal shall meet the exception standard and be subject to management and regulation by the originating party, except that the water may be returned to another Great Lake watershed rather than the source watershed;

281.343(4n)(b)2.b. b. The applicant shall demonstrate that there is no feasible, cost-effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies; and

281.343(4n)(b)2.c. c. The originating party shall provide notice to the other parties prior to making any decision with respect to the proposal.

281.343(4n)(b)3. 3. If the proposal results in a new or increased consumptive use of 5,000,000 gallons per day or greater average over any 90-day period:

281.343(4n)(b)3.a. a. The proposal shall be subject to management and regulation by the originating party and shall meet the exception standard, ensuring that water withdrawn shall be returned to the source watershed;

281.343(4n)(b)3.b. b. The applicant shall demonstrate that there is no feasible, cost-effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies;

281.343(4n)(b)3.c. c. The proposal undergoes regional review; and

281.343(4n)(b)3.d. d. The proposal is approved by the council. Council approval shall be given unless one or more council members vote to disapprove.

281.343(4n)(c) (c) Straddling counties.

281.343(4n)(c)1. 1. A proposal to transfer water to a community within a straddling county that would be considered a diversion under this compact shall be excepted from the prohibition against diversions, provided that it satisfies all of the following conditions:

281.343(4n)(c)1.a. a. The water shall be used solely for the public water supply purposes of the community within a straddling county that is without adequate supplies of potable water;

281.343(4n)(c)1.b. b. The proposal meets the exception standard, maximizing the portion of water returned to the source watershed as basin water and minimizing the surface water or groundwater from outside the basin;

281.343(4n)(c)1.c. c. The proposal shall be subject to management and regulation by the originating party, regardless of its size;

281.343(4n)(c)1.d. d. There is no reasonable water supply alternative within the basin in which the community is located, including conservation of existing water supplies;

281.343(4n)(c)1.e. e. Caution shall be used in determining whether or not the proposal meets the conditions for this exception. This exception should not be authorized unless it can be shown that it will not endanger the integrity of the basin ecosystem;

281.343(4n)(c)1.f. f. The proposal undergoes regional review; and

281.343(4n)(c)1.g. g. The proposal is approved by the council. Council approval shall be given unless one or more council members vote to disapprove.

281.343(4n)(c)2. 2. A proposal must satisfy all of the conditions listed above. Further, substantive consideration will also be given to whether or not the proposal can provide sufficient scientifically based evidence that the existing water supply is derived from groundwater that is hydrologically interconnected to waters of the basin.

281.343(4n)(d) (d) Exception standard. Proposals subject to management and regulation in this subsection shall be declared to meet this exception standard and may be approved as appropriate only when the following criteria are met:

281.343(4n)(d)1. 1. The need for all or part of the proposed exception cannot be reasonably avoided through the efficient use and conservation of existing water supplies;

281.343(4n)(d)2. 2. The exception will be limited to quantities that are considered reasonable for the purposes for which it is proposed;

281.343(4n)(d)3. 3. All water withdrawn shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:

281.343(4n)(d)3.a. a. Is part of a water supply or wastewater treatment system that combines water from inside and outside of the basin; and

281.343(4n)(d)3.b. b. Is treated to meet applicable water quality discharge standards and to prevent the introduction of invasive species into the basin;

281.343(4n)(d)4. 4. The exception will be implemented so as to ensure that it will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources of the basin with consideration given to the potential cumulative impacts of any precedent-setting consequences associated with the proposal;

281.343(4n)(d)5. 5. The exception will be implemented so as to incorporate environmentally sound and economically feasible water conservation measures to minimize water withdrawals or consumptive use;

281.343(4n)(d)6. 6. The exception will be implemented so as to ensure that it is in compliance with all applicable municipal, state, and federal laws as well as regional interstate and international agreements, including the Boundary Waters Treaty of 1909; and

281.343(4n)(d)7. 7. All other applicable criteria in this subsection have also been met.

281.343(4p) (4p) Water management and regulation; management and regulation of new or increased withdrawals and consumptive uses.

281.343(4p)(a) (a) Within 5 years of the effective date of this compact, each party shall create a program for the management and regulation of new or increased withdrawals and consumptive uses by adopting and implementing measures consistent with the decision-making standard. Each party, through a considered process, shall set and may modify threshold levels for the regulation of new or increased withdrawals in order to assure an effective and efficient water management program that will ensure that uses overall are reasonable, that withdrawals overall will not result in significant impacts to the waters and water dependent natural resources of the basin, determined on the basis of significant impacts to the physical, chemical, and biological integrity of source watersheds, and that all other objectives of the compact are achieved. Each party may determine the scope and thresholds of its program, including which new or increased withdrawals and consumptive uses will be subject to the program.

281.343(4p)(b) (b) Any party that fails to set threshold levels that comply with par. (a) any time before 10 years after the effective date of this compact shall apply a threshold level for management and regulation of all new or increased withdrawals of 100,000 gallons per day or greater average in any 90-day period.

281.343(4p)(c) (c) The parties intend programs for new or increased withdrawals and consumptive uses to evolve as may be necessary to protect basin waters. Pursuant to sub. (3) (d), the council, in cooperation with the provinces, shall periodically assess the water management programs of the parties. Such assessments may produce recommendations for the strengthening of the programs, including, without limitation, establishing lower thresholds for management and regulation in accordance with the decision-making standard.

281.343(4r) (4r) Water management and regulation; decision-making standard. Proposals subject to management and regulation in sub. (4p) shall be declared to meet this decision-making standard and may be approved as appropriate only when the following criteria are met:

281.343(4r)(a) (a) All water withdrawn shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use;

281.343(4r)(b) (b) The withdrawal or consumptive use will be implemented so as to ensure that the proposal will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources and the applicable source watershed;

281.343(4r)(c) (c) The withdrawal or consumptive use will be implemented so as to incorporate environmentally sound and economically feasible water conservation measures;

281.343(4r)(d) (d) The withdrawal or consumptive use will be implemented so as to ensure that it is in compliance with all applicable municipal, state, and federal laws as well as regional interstate and international agreements, including the Boundary Waters Treaty of 1909; and

281.343(4r)(e) (e) The proposed use is reasonable, based upon a consideration of the following factors:

281.343(4r)(e)1. 1. Whether the proposed withdrawal or consumptive use is planned in a fashion that provides for efficient use of the water and will avoid or minimize the waste of water;

281.343(4r)(e)2. 2. If the proposal is for an increased withdrawal or consumptive use, whether efficient use is made of existing water supplies;

281.343(4r)(e)3. 3. The balance between economic development, social development, and environmental protection of the proposed withdrawal and use and other existing or planned withdrawals and water uses sharing the water source;

281.343(4r)(e)4. 4. The supply potential of the water source, considering quantity, quality, and reliability and safe yield of hydrologically interconnected water sources;

281.343(4r)(e)5. 5. The probable degree and duration of any adverse impacts caused or expected to be caused by the proposed withdrawal and use, under foreseeable conditions, to other lawful consumptive or nonconsumptive uses of water or to the quantity or quality of the waters and water dependent natural resources of the basin, and the proposed plans and arrangements for avoidance or mitigation of such impacts; and

281.343(4r)(e)6. 6. If a proposal includes restoration of hydrologic conditions and functions of the source watershed, the party may consider that.

281.343(4t) (4t) Water management and regulation; applicability.

281.343(4t)(a) (a) Minimum standard. This standard of review and decision shall be used as a minimum standard. Parties may impose a more restrictive decision-making standard for withdrawals under their authority. It is also acknowledged that although a proposal meets the standard of review and decision it may not be approved under the laws of the originating party that has implemented more restrictive measures.

281.343(4t)(b) (b) Baseline.

281.343(4t)(b)1. 1. To establish a baseline for determining a new or increased diversion, consumptive use, or withdrawal, each party shall develop either or both of the following lists for the party’s jurisdiction:

281.343(4t)(b)1.a. a. A list of existing withdrawal approvals as of the effective date of the compact.

281.343(4t)(b)1.b. b. A list of the capacity of existing systems as of the effective date of this compact. The capacity of the existing systems should be presented in terms of withdrawal capacity, treatment capacity, distribution capacity, or other capacity limiting factors. The capacity of the existing systems must represent the state of the systems. Existing capacity determinations shall be based upon approval limits or the most restrictive capacity information.

281.343(4t)(b)2. 2. For all purposes of this compact, volumes of diversions, consumptive uses, or withdrawals of water set forth in the lists prepared by each party in accordance with this paragraph shall constitute the baseline volume.

281.343(4t)(b)3. 3. The lists shall be furnished to the regional body and the council within one year of the effective date of this compact.

281.343(4t)(c) (c) Timing of additional applications. Applications for new or increased withdrawals, consumptive uses, or exceptions shall be considered cumulatively within 10 years of any application.

281.343(4t)(d) (d) Change of ownership. Unless a new owner proposes a project that shall result in a proposal for a new or increased diversion or consumptive use subject to regional review or council approval, the change of ownership in and of itself shall not require regional review or council approval.

281.343(4t)(e) (e) Groundwater. The basin surface water divide shall be used for the purpose of managing and regulating new or increased diversions, consumptive uses, or withdrawals of surface water and groundwater.

281.343(4t)(f) (f) Withdrawal systems. The total volume of surface water and groundwater resources that supply a common distribution system shall determine the volume of a withdrawal, consumptive use, or diversion.

281.343(4t)(g) (g) Connecting channels. The watershed of each Great Lake shall include its upstream and downstream connecting channels.