Chapter 281

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.

281.343(4t)(h) (h) Transmission in water lines. Transmission of water within a line that extends outside the basin as it conveys water from one point to another within the basin shall not be considered a diversion if none of the water is used outside the basin.

281.343(4t)(i) (i) Hydrologic units. The Lake Michigan and Lake Huron watersheds shall be considered to be a single hydrologic unit and watershed.

281.343(4t)(j) (j) Bulk water transfer. A proposal to withdraw water and to remove it from the basin in any container greater than 5.7 gallons shall be treated under this compact in the same manner as a proposal for a diversion. Each party shall have the discretion, within its jurisdiction, to determine the treatment of proposals to withdraw water and to remove it from the basin in any container of 5.7 gallons or less.

281.343(4v) (4v) Water management and regulation; exemptions. Withdrawals from the basin for the following purposes are exempt from the requirements of subs. (4) to (4z):

281.343(4v)(a) (a) To supply vehicles, including vessels and aircraft, whether for the needs of the persons or animals being transported or for ballast or other needs related to the operation of the vehicles.

281.343(4v)(b) (b) To use in a noncommercial project on a short-term basis for fire fighting, humanitarian, or emergency response purposes.

281.343(4x) (4x) Water management and regulation; U.S. Supreme Court decree in Wisconsin et al. v. Illinois et al.

281.343(4x)(a) (a) Notwithstanding any terms of this compact to the contrary, with the exception of par. (e), current, new, or increased withdrawals, consumptive uses, and diversions of basin water by the state of Illinois shall be governed by the terms of the United States Supreme Court decree in Wisconsin et al. v. Illinois et al. and shall not be subject to the terms of this compact nor any rules or regulations promulgated pursuant to this compact. This means that, with the exception of par. (e), for purposes of this compact, current, new, or increased withdrawals, consumptive uses, and diversions of basin water within the state of Illinois shall be allowed unless prohibited by the terms of the United States Supreme Court decree in Wisconsin et al. v. Illinois et al.

281.343(4x)(b) (b) The parties acknowledge that the United States Supreme Court decree in Wisconsin et al. v. Illinois et al. shall continue in full force and effect, that this compact shall not modify any terms thereof, and that this compact shall grant the parties no additional rights, obligations, remedies, or defenses thereto. The parties specifically acknowledge that this compact shall not prohibit or limit the state of Illinois in any manner from seeking additional basin water as allowed under the terms of the United States Supreme Court decree in Wisconsin et al. v. Illinois et al., any other party from objecting to any request by the state of Illinois for additional basin water under the terms of said decree, or any party from seeking any other type of modification to said decree. If an application is made by any party to the Supreme Court of the United States to modify said decree, the parties to this compact who are also parties to the decree shall seek formal input from the Canadian Provinces of Ontario and Quebec with respect to the proposed modification, shall use best efforts to facilitate the appropriate participation of said provinces in the proceedings to modify the decree, and shall not unreasonably impede or restrict such participation.

281.343(4x)(c) (c) With the exception of par. (e), because current, new, or increased withdrawals, consumptive uses, and diversions of basin water by the state of Illinois are not subject to the terms of this compact, the state of Illinois is prohibited from using any term of this compact, including sub. (4n), to seek new or increased withdrawals, consumptive uses, or diversions of basin water.

281.343(4x)(d) (d) With the exception of par. (e), because subs. (4d), (4f), (4h), (4j), (4L), (4m), (4n), (4p), (4r), (4t) (a), (b), (c), (d), (f), and (j), and (4v) all relate to current, new, or increased withdrawals, consumptive uses, and diversions of basin waters, said provisions do not apply to the state of Illinois. All other provisions of this compact not listed in the preceding sentence shall apply to the state of Illinois, including the water conservation programs provision of sub. (4b).

281.343(4x)(e) (e) In the event of a proposal for a diversion of basin water for use outside the territorial boundaries of the parties to this compact, decisions by the state of Illinois regarding such a proposal would be subject to all terms of this compact, except pars. (a), (c), and (d).

281.343(4x)(f) (f) For purposes of the state of Illinois’ participation in this compact, the entirety of this subsection is necessary for the continued implementation of this compact and, if severed, this compact shall no longer be binding on or enforceable by or against the state of Illinois.

281.343(4z) (4z) Water management and regulation; assessment of cumulative impacts.

281.343(4z)(a) (a) The parties in cooperation with the provinces shall collectively conduct within the basin, on a lake watershed and St. Lawrence River basin basis, a periodic assessment of the cumulative impacts of withdrawals, diversions, and consumptive uses from the waters of the basin, every 5 years or each time the incremental basin water losses reach 50,000,000 gallons per day average in any 90-day period in excess of the quantity at the time of the most recent assessment, whichever comes first, or at the request of one or more of the parties. The assessment shall form the basis for a review of the standard of review and decision, council and party regulations, and their application. This assessment shall:

281.343(4z)(a)1. 1. Utilize the most current and appropriate guidelines for such a review, which may include but not be limited to council on environmental quality and environment Canada guidelines;

281.343(4z)(a)2. 2. Give substantive consideration to climate change or other significant threats to basin waters and take into account the current state of scientific knowledge, or uncertainty, and appropriate measures to exercise caution in cases of uncertainty if serious damage may result; and

281.343(4z)(a)3. 3. Consider adaptive management principles and approaches, recognizing, considering, and providing adjustments for the uncertainties in, and evolution of, science concerning the basin’s water resources, watersheds, and ecosystems, including potential changes to basin-wide processes, such as lake level cycles and climate.

281.343(4z)(b) (b) The parties have the responsibility of conducting this cumulative impact assessment. Applicants are not required to participate in this assessment.

281.343(4z)(c) (c) Unless required by other statutes, applicants are not required to conduct a separate cumulative impact assessment in connection with an application but shall submit information about the potential impacts of a proposal to the quantity or quality of the waters and water dependent natural resources of the applicable source watershed. An applicant may, however, provide an analysis of how the applicant’s proposal meets the no significant adverse cumulative impact provision of the standard of review and decision.

281.343(5) (5) Consultation with tribes.

281.343(5)(a) (a) In addition to all other opportunities to comment pursuant to sub. (6) (b), appropriate consultations shall occur with federally recognized tribes in the originating party for all proposals subject to council or regional review pursuant to this compact. Such consultations shall be organized in the manner suitable to the individual proposal and the laws and policies of the originating party.

281.343(5)(b) (b) All federally recognized tribes within the basin shall receive reasonable notice indicating that they have an opportunity to comment in writing to the council or the regional body, or both, and other relevant organizations on whether the proposal meets the requirements of the standard of review and decision when a proposal is subject to regional review or council approval. Any notice from the council shall inform the tribes of any meeting or hearing that is to be held under sub. (6) (b) and invite them to attend. The parties and the council shall consider the comments received under this subsection before approving, approving with modifications, or disapproving any proposal subject to council or regional review.

281.343(5)(c) (c) In addition to the specific consultation mechanisms described above, the council shall seek to establish mutually agreed upon mechanisms or processes to facilitate dialogue with, and input from, federally recognized tribes on matters to be dealt with by the council; and the council shall seek to establish mechanisms and processes with federally recognized tribes designed to facilitate ongoing scientific and technical interaction and data exchange regarding matters falling within the scope of this compact. This may include participation of tribal representatives on advisory committees established under this compact or such other processes that are mutually agreed upon with federally recognized tribes individually or through duly authorized intertribal agencies or bodies.

281.343(6) (6) Public participation.

281.343(6)(a) (a) Meetings, public hearings, and records.

281.343(6)(a)1. 1. The parties recognize the importance and necessity of public participation in promoting management of the water resources of the basin. Consequently, all meetings of the council shall be open to the public, except with respect to issues of personnel.

281.343(6)(a)2. 2. The minutes of the council shall be a public record open to inspection at its offices during regular business hours.

281.343(6)(b) (b) Public participation. It is the intent of the council to conduct public participation processes concurrently and jointly with processes undertaken by the parties and through regional review. To ensure adequate public participation, each party or the council shall ensure procedures for the review of proposals subject to the standard of review and decision consistent with the following requirements:

281.343(6)(b)1. 1. Provide public notification of receipt of all applications and a reasonable opportunity for the public to submit comments before applications are acted upon.

281.343(6)(b)2. 2. Assure public accessibility to all documents relevant to an application, including public comment received.

281.343(6)(b)3. 3. Provide guidance on standards for determining whether to conduct a public meeting or hearing for an application, time and place of such a meeting or hearing, and procedures for conducting of the same.

281.343(6)(b)4. 4. Provide the record of decision for public inspection including comments, objections, responses, and approvals, approvals with conditions, and disapprovals.

281.343(7) (7) Dispute resolution and enforcement; good faith implementation. Each of the parties pledges to support implementation of all provisions of this compact, and covenants that its officers and agencies shall not hinder, impair, or prevent any other party carrying out any provision of this compact.

281.343(7g) (7g) Dispute resolution and enforcement; alternative dispute resolution.

281.343(7g)(a) (a) Desiring that this compact be carried out in full, the parties agree that disputes between the parties regarding interpretation, application, and implementation of this compact shall be settled by alternative dispute resolution.

281.343(7g)(b) (b) The council, in consultation with the provinces, shall provide by rule procedures for the resolution of disputes pursuant to this subsection.

281.343(7r) (7r) Dispute resolution and enforcement; enforcement.

281.343(7r)(a) (a) Any person aggrieved by any action taken by the council pursuant to the authorities contained in this compact shall be entitled to a hearing before the council. Any person aggrieved by a party action shall be entitled to a hearing pursuant to the relevant party’s administrative procedures and laws. After exhaustion of such administrative remedies, any aggrieved person shall have the right to judicial review of a council action in the United States district court for the District of Columbia or the district court in which the council maintains offices, provided such action is commenced within 90 days; and any aggrieved person shall have the right to judicial review of a party’s action in the relevant party’s court of competent jurisdiction, provided that an action or proceeding for such review is commenced within the time frames provided for by the party’s law. For the purposes of this paragraph, a state or province is deemed to be an aggrieved person with respect to any party action pursuant to this compact.

281.343(7r)(b) (b)

281.343(7r)(b)1. 1. Any party or the council may initiate actions to compel compliance with the provisions of this compact, and the rules and regulations promulgated hereunder by the council. Jurisdiction over such actions is granted to the court of the relevant party, as well as the United States district court for the District of Columbia and the district court in which the council maintains offices. The remedies available to any such court shall include, but not be limited to, equitable relief and civil penalties.

281.343(7r)(b)2. 2. Each party may issue orders within its respective jurisdiction and may initiate actions to compel compliance with the provisions of its respective statutes and regulations adopted to implement the authorities contemplated by this compact in accordance with the provisions of the laws adopted in each party’s jurisdiction.

281.343(7r)(c) (c)

281.343(7r)(c)1. 1. Any aggrieved person, party, or the council may commence a civil action in the relevant party’s courts and administrative systems to compel any person to comply with this compact should any such person, without approval having been given, undertake a new or increased withdrawal, consumptive use, or diversion that is prohibited or subject to approval pursuant to this compact.

281.343(7r)(c)2. 2. No action under this paragraph may be commenced if:

281.343(7r)(c)2.a. a. The originating party or council approval for the new or increased withdrawal, consumptive use, or diversion has been granted; or

281.343(7r)(c)2.b. b. The originating party or council has found that the new or increased withdrawal, consumptive use, or diversion is not subject to approval pursuant to this compact.

281.343(7r)(c)3. 3. No action under this paragraph may be commenced unless:

281.343(7r)(c)3.a. a. A person commencing such action has first given 60 days prior notice to the originating party, the council, and person alleged to be in noncompliance; and

281.343(7r)(c)3.b. b. Neither the originating party nor the council has commenced and is diligently prosecuting appropriate enforcement actions to compel compliance with this compact.

281.343(7r)(d) (d) The available remedies shall include equitable relief, and the prevailing or substantially prevailing party may recover the costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such an award is appropriate.

281.343(7r)(e) (e) Each of the parties may adopt provisions providing additional enforcement mechanisms and remedies including equitable relief and civil penalties applicable within its jurisdiction to assist in the implementation of this compact.

281.343(8) (8) Additional provisions.

281.343(8)(a) (a) Effect on existing rights.

281.343(8)(a)1. 1. Nothing in this compact shall be construed to affect, limit, diminish, or impair any rights validly established and existing as of the effective date of this compact under state or federal law governing the withdrawal of waters of the basin.

281.343(8)(a)2. 2. Nothing contained in this compact shall be construed as affecting or intending to affect or in any way to interfere with the law of the respective parties relating to common law water rights.

281.343(8)(a)3. 3. Nothing in this compact is intended to abrogate or derogate from treaty rights or rights held by any tribe recognized by the federal government of the United States based upon its status as a tribe recognized by the federal government of the United States.