Chapter 281

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.

281.343(8)(a)4. 4. An approval by a party or the council under this compact does not give any property rights, nor any exclusive privileges, nor shall it be construed to grant or confer any right, title, easement, or interest in, to, or over any land belonging to or held in trust by a party; neither does it authorize any injury to private property or invasion of private rights, nor infringement of federal, state, or local laws or regulations; nor does it obviate the necessity of obtaining federal assent when necessary.

281.343(8)(b) (b) Relationship to agreements concluded by the United States of America.

281.343(8)(b)1. 1. Nothing in this compact is intended to provide nor shall be construed to provide, directly or indirectly, to any person any right, claim, or remedy under any treaty or international agreement nor is it intended to derogate any right, claim, or remedy that already exists under any treaty or international agreement.

281.343(8)(b)2. 2. Nothing in this compact is intended to infringe nor shall be construed to infringe upon the treaty power of the United States of America, nor shall any term hereof be construed to alter or amend any treaty or term thereof that has been or may hereafter be executed by the United States of America.

281.343(8)(b)3. 3. Nothing in this compact is intended to affect nor shall be construed to affect the application of the Boundary Waters Treaty of 1909 whose requirements continue to apply in addition to the requirements of this compact.

281.343(8)(c) (c) Confidentiality.

281.343(8)(c)1. 1. Nothing in this compact requires a party to breach confidentiality obligations or requirements prohibiting disclosure or to compromise security of commercially sensitive or proprietary information.

281.343(8)(c)2. 2. A party may take measures, including but not limited to deletion and redaction, deemed necessary to protect any confidential, proprietary, or commercially sensitive information when distributing information to other parties. The party shall summarize or paraphrase any such information in a manner sufficient for the council to exercise its authorities contained in this compact.

281.343(8)(d) (d) Additional laws. Nothing in this compact shall be construed to repeal, modify, or qualify the authority of any party to enact any legislation or enforce any additional conditions and restrictions regarding the management and regulation of waters within its jurisdiction.

281.343(8)(e) (e) Amendments and supplements. The provisions of this compact shall remain in full force and effect until amended by action of the governing bodies of the parties and consented to and approved by any other necessary authority in the same manner as this compact is required to be ratified to become effective.

281.343(8)(f) (f) Severability. Should a court of competent jurisdiction hold any part of this compact to be void or unenforceable, it shall be considered severable from those portions of the compact capable of continued implementation in the absence of the voided provisions. All other provisions capable of continued implementation shall continue in full force and effect.

281.343(8)(g) (g) Duration of compact and termination.

281.343(8)(g)1. 1. Once effective, the compact shall continue in force and remain binding upon each and every party unless terminated.

281.343(8)(g)2. 2. This compact may be terminated at any time by a majority vote of the parties. In the event of such termination, all rights established under it shall continue unimpaired.

281.343(9) (9) Effectuation.

281.343(9)(b) (b) Effectuation by chief executive. The governor is authorized to take such action as may be necessary and proper in his or her discretion to effectuate the compact and the initial organization and operation thereunder, consistent with s. 281.346.

281.343(9)(c) (c) Entire agreement. The parties consider this compact to be complete and an integral whole. Each provision of this compact is considered material to the entire compact, and failure to implement or adhere to any provision may be considered a material breach. Unless otherwise noted in this compact, any change or amendment made to the compact by any party in its implementing legislation or by the U.S. Congress when giving its consent to this compact is not considered effective unless concurred in by all parties.

281.343(9)(d) (d) Effective date and execution. This compact shall become binding and effective when ratified through concurring legislation by the states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, and Wisconsin and the Commonwealth of Pennsylvania and consented to by the U.S. Congress.

281.343 Note NOTE: The compact became effective on December 8, 2008.

281.343 History History: 2007 a. 227.

281.344 281.344 Water conservation, reporting, and supply regulation; when compact is not in effect.

281.344(1) (1) Definitions. In this section:

281.344(1)(d) (d) “Community within a straddling county” means any city, village, or town that is not a straddling community and that is located outside the Great Lakes basin but wholly within a county that lies partly within the Great Lakes basin.

281.344(1)(dm) (dm) “Compact” means the Great Lakes — St. Lawrence River Basin Water Resources Compact under s. 281.343.

281.344(1)(dr) (dr) “Compact’s effective date” means the effective date of the compact under s. 281.343 (9) (d).

281.344(1)(e) (e) “Consumptive use” means a use of water that results in the loss of or failure to return some or all of the water to the basin from which the water is withdrawn due to evaporation, incorporation into products, or other processes.

281.344(1)(g) (g) “Cumulative impacts” means the impacts on the Great Lakes basin ecosystem that result from incremental effects of all aspects of a withdrawal, interbasin transfer, or consumptive use in addition to other past, present, and reasonably foreseeable future withdrawals, interbasin transfers, and consumptive uses regardless of who undertakes the other withdrawals, interbasin transfers, and consumptive uses, including individually minor but collectively significant withdrawals, interbasin transfers, and consumptive uses taking place over a period of time.

281.344(1)(i) (i) “Environmentally sound and economically feasible water conservation measures” means those measures, methods, or technologies for efficient water use and for reducing water loss and waste or for reducing the amount of a withdrawal, consumptive use, or interbasin transfer that are, taking into account environmental impact, the age and nature of equipment and facilities involved, the processes employed, the energy impacts, and other appropriate factors, all of the following:

281.344(1)(i)1. 1. Environmentally sound.

281.344(1)(i)2. 2. Reflective of best practices applicable to the water use sector.

281.344(1)(i)3. 3. Technically feasible and available.

281.344(1)(i)4. 4. Economically feasible and cost-effective based on an analysis that considers direct and avoided economic and environmental costs.

281.344(1)(j) (j) “Facility” means an operating plant or establishment providing electricity to the public or carrying on any manufacturing activity, trade, or business on one site, including similar plants or establishments under common ownership or control located on contiguous properties.

281.344(1)(je) (je) “Great Lakes basin” means the watershed of the Great Lakes and the St. Lawrence River upstream from Trois-Rivieres, Quebec.

281.344(1)(ji) (ji) “Great Lakes basin ecosystem” means the interacting components of air, land, water, and living organisms, including humans, within the Great Lakes basin.

281.344(1)(k) (k) “Interbasin transfer” means a transfer of water from the Great Lakes basin into a watershed outside of the Great Lakes basin or from the watershed of one of the Great Lakes into that of another, except that “interbasin transfer” does not include any of the following:

281.344(1)(k)1. 1. The transfer of a product produced in the Great Lakes basin or in the watershed of one of the Great Lakes, using waters of the Great Lakes basin, out of the Great Lakes basin or out of that watershed.

281.344(1)(k)2. 2. The transmission of water within a line that extends outside the Great Lakes basin as it conveys water from one point to another within the Great Lakes basin if no water is used outside the Great Lakes basin.

281.344(1)(k)3. 3. The transfer of bottled water from the Great Lakes basin in containers of 5.7 gallons or less.

281.344(1)(km) (km) “Intrabasin transfer” means the transfer of water from the watershed of one of the Great Lakes into the watershed of another of the Great Lakes.

281.344(1)(o) (o) “Product” means something produced by human or mechanical effort or through agricultural processes and used in manufacturing, commercial, or other processes or intended for intermediate or ultimate consumers, subject to all of the following:

281.344(1)(o)1. 1. Water used as part of the packaging of a product is part of the product.

281.344(1)(o)2. 2. 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 Great Lakes basin is not a product or part of a product.

281.344(1)(o)3. 3. Except as provided in subd. 1., water that is transferred as part of a public or private supply is not a product or part of a product.

281.344(1)(o)4. 4. Water in its natural state, such as in lakes, rivers, reservoirs, aquifers, or water basins, is not a product.

281.344(1)(pm) (pm) “Public water supply” means water distributed to the public through a physically connected system of treatment, storage, and distribution facilities that serve a group of largely residential customers and that may also serve industrial, commercial, and other institutional customers.

281.344(1)(ps) (ps) “Reasonable water supply alternative” means a water supply alternative that is similar in cost to, and as environmentally sustainable and protective of public health as, the proposed new or increased interbasin transfer and that does not have greater adverse environmental impacts than the proposed new or increased interbasin transfer.

281.344(1)(q) (q) “Regional body” means the body consisting of the governors of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin and the premiers of Ontario and Quebec, Canada, or their designees, as established by the Great Lakes — St. Lawrence River Basin Sustainable Water Resources Agreement.

281.344(1)(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 is 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 is the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively.

281.344(1)(t) (t) “Straddling community” means any city, village, or town that is partly within the Great Lakes basin or partly within the watersheds of 2 of the Great Lakes and that is wholly within any county that lies partly or completely within the Great Lakes basin.

281.344(1)(tm) (tm) “Straddling county” means a county that lies partly within the Great Lakes basin.

281.344(1)(w) (w) “Water dependent natural resources” means the interacting components of land, water, and living organisms affected by the waters of the Great Lakes basin.

281.344(1)(wm) (wm) “Water loss” means the amount of water that is withheld from or not returned to the basin from which it is withdrawn as a result of an interbasin transfer or consumptive use or both.

281.344(1)(wp) (wp) “Water supply system,” when not preceded by “public,” means one of the following:

281.344(1)(wp)1. 1. Except as provided in subd. 2., the equipment handling water from the point of intake of the water to the first point at which the water is used.

281.344(1)(wp)2. 2. For a system for providing a public water supply, the equipment from the point of intake of the water to the first point at which the water is distributed.

281.344(1)(wr) (wr) “Water utility” means a public utility, as defined in s. 196.01 (5), that furnishes water.

281.344(1)(x) (x) “Waters of the Great Lakes basin” means the Great Lakes and all streams, rivers, lakes, connecting channels, and other bodies of water, including tributary groundwater, within the Great Lakes basin.

281.344(1)(y) (y) “Withdraw” means to take water from surface water or groundwater.

281.344(1)(z) (z) “Withdrawal” means the taking of water from surface water or groundwater, including the taking of surface water or groundwater for the purpose of bottling the water.

281.344(1)(zm) (zm) “Without adequate supplies of potable water” means without a water supply that is economically and environmentally sustainable in the long term to meet reasonable demands for a water supply in the quantity and quality that complies with applicable drinking water standards, is protective of public health, is available at a reasonable cost, and does not have adverse environmental impacts greater than those likely to result from the proposed new or increased interbasin transfer.

281.344(2) (2) Determinations concerning applicability of requirements.

281.344(2)(a) (a) Use of surface water divide. For the purposes of this section, the surface water divide is used to determine whether a withdrawal or transfer of surface water or groundwater is from the Great Lakes basin.

281.344(2)(b) (b) Transfers and withdrawals from more than one source. For the purposes of this section, the interbasin transfer or withdrawal of water from more than one source within the Great Lakes basin to supply a single facility or public water supply system is considered one interbasin transfer or withdrawal.

281.344(2)(c) (c) Water loss. The department shall promulgate rules for determining the amount of water loss from consumptive uses.

281.344(2)(d) (d) County boundaries. For the purposes of sub. (1) (d), (t), and (tm), a county’s boundaries as of December 13, 2005, shall be used to determine whether a county lies partly within the Great Lakes basin.

281.344(2)(e) (e) Public trust doctrine. 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.

281.344(2)(f) (f) Water resources protection act.

281.344(2)(f)1. 1. In this paragraph, “historic” means made before June 11, 2008.