Chapter 281

281.346(5)(jm) (jm) Consistency with water supply plans; reissuance.

281.346(5)(jm)1. 1. The department may not approve an application under par. (j) 1. for a withdrawal for the purpose of providing water to a public water supply system that serves a population of more than 10,000 if the person proposes to increase the amount of the withdrawal over the amount in the current permit, unless the public water supply system is covered by an approved water supply service area plan under s. 281.348.

281.346(5)(jm)2. 2. The department may not approve an application under par. (j) 1. for a withdrawal for the purpose of providing water to a public water supply system that is covered by an approved water supply service area plan under s. 281.348 unless the withdrawal is consistent with the water supply service area plan.

281.346(5)(k) (k) Standards for reissuance in certain cases.

281.346(5)(k)1. 1. Except as provided in par. (jm), the department may not approve an application under par. (j) 1., if the person proposes in the application to increase the amount of the withdrawal so that it equals 1,000,000 or more gallons per day for any 30 consecutive days over the withdrawal amount as of the beginning of the current permit term or the date that the department issued a modified permit for the withdrawal if the modification was subject to the state decision-making standard under sub. (5m) or the compact decision-making standard under sub. (6), whichever is later, and if subd. 2. does not apply, unless the increased withdrawal meets the state decision-making standard under sub. (5m).

281.346(5)(k)2. 2. Except as provided in subd. 3. or par. (jm), the department may not approve an application under par. (j) 1., if the person proposes in the application to increase the amount of the withdrawal so that it equals at least 10,000,000 gallons per day for any 30 consecutive days over the withdrawal amount as of the beginning of the current permit term or the date that the department issued a modified permit for the withdrawal if the modification was subject to the compact decision-making standard under sub. (6), whichever is later, unless the withdrawal meets the compact decision-making standard under sub. (6).

281.346(5)(k)3. 3. A person who submits an application under par. (j) 1., to which subd. 2. would otherwise apply, may choose to demonstrate, using procedures specified in rules promulgated by the department, the water loss that will result from the increase in the withdrawal over the withdrawal amount as of the later of the dates under subd. 2. If the person demonstrates that the resulting increase in water loss would average less than 5,000,000 gallons per day in every 90-day period, the state decision-making standard under sub. (5m), rather than the compact decision-making standard under sub. (6), applies to the increase in the withdrawal.

281.346(5)(L) (L) Prior notice. Beginning no later than 60 months after the compact’s effective date, if a proposal for which approval is required under this subsection will result in a new water loss or an increase in a water loss that will average more than 5,000,000 gallons per day in any 90-day period, the department shall provide the other parties and the provinces of Ontario and Quebec, Canada, with detailed notice of the proposal and an opportunity to comment on the proposal. The department shall provide a response to any comment received under this paragraph. The department may not grant an approval under this subsection until at least 90 days after the day on which it provided notice under this paragraph.

281.346(5)(m) (m) Regional review. If a majority of the members of the regional body request regional review of a proposal described in s. 281.343 (4h) (a) 6. for a withdrawal and the department determines under s. 281.343 (4h) (b) 1. that the proposal is subject to regional review, the department shall conduct a technical review of the proposal and submit the proposal for regional review. The department may not determine under s. 281.343 (4h) (b) 1. that the proposal is subject to regional review unless the proposal will result in a water loss that will average more than 5,000,000 gallons per day in any 90-day period. If the department submits the proposal for regional review, the department may not act on the proposal until the proposal has undergone regional review and the department has considered the regional declaration of finding in determining whether to approve the proposal or until 90 days after the department submits the proposal for regional review, whichever is sooner.

281.346(5)(n) (n) Information to be provided. A person who submits an application under par. (d) 1., (g) 1., or (j) 1. shall provide the information required by the department by rule. If a decision-making standard under sub. (5m) or (6) applies, the person shall provide information about the potential impacts of the withdrawal on the waters of the Great Lakes basin and water dependent natural resources. If the compact decision-making standard under sub. (6) applies, the person shall provide an assessment of the individual impacts of the proposal for the purposes of sub. (6) (b). The person may also include a cumulative impact assessment.

281.346(5)(o) (o) Departmental modifications. After an opportunity for a hearing, the department may modify a permit issued under this subsection as necessary to ensure that a withdrawal complies with any applicable requirement under sub. (5m) or (6).

281.346(5)(p) (p) Suspension and revocation. The department may suspend or revoke a permit issued under this subsection for cause, including obtaining the permit by misrepresentation or failure to disclose material facts or substantially violating the terms of the permit.

281.346(5)(q) (q) Transfer of control. A permit is not transferable to any person except after notice to the department. A person who proposes to assume control over a permitted withdrawal shall file with the department a permit application and a statement of acceptance of the permit. The department may require modification or revocation and reissuance of the permit to change the name of the permittee.

281.346(5e) (5e) Requirements for water supply service area plans for public water supply systems in the Great Lakes basin.

281.346(5e)(a) (a) Unpermitted withdrawals.

281.346(5e)(a)1. 1. Beginning on December 8, 2011, the department may not approve a water supply service area plan under s. 281.348 that provides for a new withdrawal from the Great Lakes basin of at least 1,000,000 gallons per day for any 30 consecutive days, or for modification of an existing withdrawal that is not covered by a general permit under sub. (4s) so that it will equal at least 1,000,000 gallons per day for any 30 consecutive days, but to which subd. 2. does not apply, unless the withdrawal meets the state decision-making standard under sub. (5m).

281.346(5e)(a)2. 2. Beginning on December 8, 2011, except as provided in subd. 3., the department may not approve a water supply service area plan under s. 281.348 that provides for a new withdrawal from the Great Lakes basin of at least 10,000,000 gallons per day for any 30 consecutive days, or for modification of an existing withdrawal that is not covered by a general permit under sub. (4s) so that it will equal at least 10,000,000 gallons per day for any 30 consecutive days, unless the withdrawal meets the compact decision-making standard under sub. (6).

281.346(5e)(a)3. 3. A person who submits a water supply service area plan under s. 281.348, that provides for a new withdrawal to which subd. 2. would otherwise apply, may choose to demonstrate, using procedures specified in rules promulgated by the department, the water loss that will result from the withdrawal. If the person demonstrates that the water loss would average less than 5,000,000 gallons per day in every 90-day period, the state decision-making standard under sub. (5m), rather than the compact decision-making standard under sub. (6), applies to the withdrawal.

281.346(5e)(b) (b) Increased withdrawals covered by general permits.

281.346(5e)(b)1. 1. Beginning on December 8, 2011, the department may not approve a water supply service area plan under s. 281.348 that provides for modifying a withdrawal that is covered under a general permit under sub. (4s) before December 8, 2021, so that the withdrawal equals 1,000,000 or more gallons per day for any 30 consecutive days over the baseline or if the plan provides for modifying the withdrawal after December 7, 2021, so that it equals 1,000,000 or more gallons per day for any 30 consecutive days over the withdrawal amount as of the date that the department issued the current notice of coverage under the general permit and if subd. 2. does not apply, unless the withdrawal meets the state decision-making standard under sub. (5m).

281.346(5e)(b)2. 2. Beginning on December 8, 2011, except as provided in subd. 3., the department may not approve a water supply service area plan under s. 281.348 that provides for modifying a withdrawal that is covered under a general permit under sub. (4s) before December 8, 2021, so that the withdrawal equals 10,000,000 or more gallons per day for any 30 consecutive days over the baseline or if the plan provides for modifying the withdrawal after December 7, 2021, so that it equals 10,000,000 or more gallons per day for any 30 consecutive days over the withdrawal amount as of the date that the department issued the current notice of coverage under the general permit, unless the withdrawal meets the compact decision-making standard under sub. (6).

281.346(5e)(b)3. 3. A person who submits a water supply service area plan under s. 281.348, that provides for an increase in a withdrawal to which subd. 2. would otherwise apply, may choose to demonstrate, using procedures specified in rules promulgated by the department, the water loss that will result from the increase in the withdrawal over the baseline or over the withdrawal amount, whichever is applicable under subd. 2. If the person demonstrates that the resulting increase in water loss would average less than 5,000,000 gallons per day in every 90-day period, the state decision-making standard under sub. (5m), rather than the compact decision-making standard under sub. (6), applies to the increase in the withdrawal.

281.346(5e)(c) (c) Increased withdrawals covered by individual permits.

281.346(5e)(c)1. 1. Beginning on the December 8, 2011, the department may not approve a water supply service area plan under s. 281.348 that provides for increasing, before December 8, 2021, the amount of a withdrawal that is covered under an individual permit issued under sub. (5) if after the increase the withdrawal would equal 1,000,000 or more gallons per day for any 30 consecutive days over the baseline, or, if the department issued a modified permit for the withdrawal and the modification was subject to the state decision-making standard under sub. (5m) or the compact decision-making standard under sub. (6), the withdrawal would equal 1,000,000 or more gallons per day for any 30 consecutive days over the withdrawal amount as of the date that the department issued that modified permit and if subd. 2. does not apply, unless the increased withdrawal meets the state decision-making standard under sub. (5m).

281.346(5e)(c)1m. 1m. Beginning on December 8, 2011, the department may not approve a water supply service area plan under s. 281.348 that provides for increasing, after December 7, 2021, the amount of a withdrawal that is covered under an individual permit issued under sub. (5) and after the increase the withdrawal would equal 1,000,000 or more gallons per day for any 30 consecutive days over the withdrawal amount as of the beginning of the current permit term or the date that the department issued a modified permit for the withdrawal if the modification was subject to the state decision-making standard under sub. (5m) or the compact decision-making standard under sub. (6), whichever is later, and if subd. 2m. does not apply, unless the increased withdrawal meets the state decision-making standard under sub. (5m).

281.346(5e)(c)2. 2. Beginning on December 8, 2011, except as provided in subd. 3., the department may not approve a water supply service area plan under s. 281.348 that provides for increasing, before December 8, 2021, the amount of a withdrawal that is covered under an individual permit issued under sub. (5) if after the increase the withdrawal would equal 10,000,000 or more gallons per day for any 30 consecutive days over the baseline, or, if the department issued a modified permit for the withdrawal and the modification was subject to the compact decision-making standard under sub. (6), the withdrawal would equal 10,000,000 gallons per day for any 30 consecutive days over the withdrawal amount as of the date that the department issued that modified permit, unless the increased withdrawal meets the compact decision-making standard under sub. (6).

281.346(5e)(c)2m. 2m. Beginning on December 8, 2011, except as provided in subd. 3., the department may not approve a water supply service area plan under s. 281.348 that provides for increasing, after December 7, 2021, the amount of a withdrawal that is covered under an individual permit issued under sub. (5) and after the increase the withdrawal would equal 10,000,000 or more gallons per day for any 30 consecutive days over the withdrawal amount as of the beginning of the current permit term or the date that the department issued a modified permit for the withdrawal if the modification was subject to the compact decision-making standard under sub. (6), whichever is later, unless the increased withdrawal meets the compact decision-making standard under sub. (6).

281.346(5e)(c)3. 3. A person who submits a water supply service area plan under s. 281.348, that provides for an increase in a withdrawal to which subd. 2. or 2m. would otherwise apply, may choose to demonstrate, using procedures specified in rules promulgated by the department, the water loss that will result from the increase in the withdrawal over the baseline or over the withdrawal amount, whichever is applicable under subd. 2. or 2m. If the person demonstrates that the resulting increase in water loss would average less than 5,000,000 gallons per day in every 90-day period, the state decision-making standard under sub. (5m), rather than the compact decision-making standard under sub. (6), applies to the increase in the withdrawal.

281.346(5e)(d) (d) Providing prior notice. The department may not approve a water supply service area plan under s. 281.348 that provides for a withdrawal described in sub. (5) (L) unless the department has provided notice as required under sub. (5) (L) at least 90 days before approving the water supply service area plan and has provided a response to any comment received.

281.346(5e)(e) (e) Regional review. The department may not approve a water supply service area plan under s. 281.348 if a majority of the members of the regional body request regional review of a withdrawal described in s. 281.343 (4h) (a) 6. provided for in the plan unless the department complies with sub. (5) (m).

281.346(5m) (5m) State decision-making standard. A proposal meets the state decision-making standard if all of the following apply:

281.346(5m)(a) (a) The amount of the withdrawal or increase in the withdrawal is needed to meet the projected needs of the person who will use the water.

281.346(5m)(b) (b) For an increase in a withdrawal, cost-effective conservation practices have been implemented for existing uses of the water, as required under rules promulgated by the department under sub. (8) (d).

281.346(5m)(c) (c) The applicant has assessed other potential water sources for cost-effectiveness and environmental effects.

281.346(5m)(d) (d) Cost-effective conservation practices will be implemented to ensure efficient use of the water, for a new withdrawal, or of the increased amount of an existing withdrawal.

281.346(5m)(e) (e) One of the following applies:

281.346(5m)(e)1. 1. No significant adverse environmental impacts to the waters of the state will result from the new or increased withdrawal.

281.346(5m)(e)2. 2. If the withdrawal is from a surface water body, the applicant demonstrates that the withdrawal will not result in the violation of water quality standards under s. 281.15 or impair fish populations.

281.346(5m)(e)3. 3. The department has issued a permit under s. 30.18 for the new or increased withdrawal or has issued a permit under s. 30.12 for a structure that will be used for the new or increased withdrawal.

281.346(5m)(e)4. 4. The department has issued an approval under s. 281.34, or s. 281.17, 2001 stats., for the new or increased withdrawal.

281.346(6) (6) Compact decision-making standard. A proposal meets the compact decision-making standard if all of the following apply:

281.346(6)(a) (a) All of the water withdrawn from the Great Lakes basin will be returned to the source watershed, less an allowance for consumptive use.

281.346(6)(b) (b) The withdrawal will result in no significant adverse individual impacts or cumulative impacts to the quantity or quality of the waters of the Great Lakes basin, to water dependent natural resources, to the source watershed, or, if the withdrawal is from a stream tributary to one of the Great Lakes, to the watershed of that stream.

281.346(6)(c) (c) The withdrawal will be implemented in a way that incorporates environmentally sound and economically feasible water conservation measures.

281.346(6)(d) (d) The withdrawal will be in compliance with all applicable local, state, and federal laws and interstate and international agreements, including the Boundary Waters Treaty of 1909.

281.346(6)(e) (e) The proposed use of the water is reasonable, based on a consideration of all of the following:

281.346(6)(e)1. 1. Whether the proposed withdrawal is planned in a way that provides for efficient use of the water and will avoid or minimize the waste of water.

281.346(6)(e)2. 2. If the proposal would result in an increased water loss, whether efficient use is made of existing water supplies.

281.346(6)(e)3. 3. The balance of the effects of the proposed withdrawal and use, and other existing or planned withdrawals and water uses from the water source, on economic development, social development, and environmental protection.

281.346(6)(e)4. 4. The supply potential of the water source, considering quantity, quality, reliability, and safe yield of hydrologically interconnected water sources.

281.346(6)(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 uses or nonconsumptive uses of water or to the quantity or quality of the waters of the Great Lakes basin and water dependent natural resources, and the proposed plans and arrangements for avoidance or mitigation of those impacts.

281.346(6)(e)6. 6. Any provisions for restoration of hydrologic conditions and functions of the source watershed or, if the withdrawal is from the stream tributary to one of the Great Lakes, of the watershed of that stream.

281.346(7) (7) Exemptions. Subsections (3) to (6) do not apply to withdrawals from the Great Lakes basin or diversions for any of the following purposes:

281.346(7)(a) (a) To supply vehicles, including vessels and aircraft, for the needs of the persons or animals being transported or for ballast or other needs related to the operation of the vehicles.

281.346(7)(b) (b) To use in a noncommercial project that lasts no more than 3 months for fire fighting, humanitarian, or emergency response purposes.

281.346(7m) (7m) Emergency order. The department may, without a prior hearing, order a person to whom the department has issued an individual permit or notice of coverage under a general permit under this section or s. 281.344 to immediately stop a withdrawal if the department determines that there is a danger of imminent harm to the public health, safety, or welfare, to the environment, or to the water resources or related land resources of this state. The order shall specify the date on which the withdrawal must be stopped and the date, if any, on which it may be resumed. The order shall notify the person that the person may request a contested case hearing under ch. 227. The hearing shall be held as soon as practicable after receipt of a request for a hearing. An emergency order remains in effect pending the result of the hearing.

281.346(8) (8) Statewide water conservation and efficiency.

281.346(8)(a) (a) Goals and objectives. The department shall specify water conservation and efficiency goals and objectives for the waters of the state and for the waters of the Great Lakes basin. The department shall specify goals and objectives for the waters of the Great Lakes basin that are consistent with the goals under s. 281.343 (4b) (a) and the objectives identified by the Great Lakes council under s. 281.343 (4b) (a) and (c). In specifying these goals and objectives, the department shall consult with the department of safety and professional services and the public service commission and consider the water conservation and efficiency goals and objectives developed in any pilot program conducted by the department in cooperation with the regional body.

281.346(8)(b) (b) Statewide program. In cooperation with the department of safety and professional services and the public service commission, the department shall develop and implement a statewide water conservation and efficiency program that includes all of the following:

281.346(8)(b)1. 1. Promotion of environmentally sound and economically feasible water conservation measures through a voluntary statewide program.

281.346(8)(b)1m. 1m. Mandatory and voluntary conservation and efficiency measures for the waters of the Great Lakes basin that are necessary to implement subs. (4), (4s), (5), (5m), and (6) and s. 281.348.

281.346(8)(b)2. 2. Water conservation and efficiency measures that the public service commission requires or authorizes a water utility to implement under ch. 196.

281.346(8)(b)3. 3. Water conservation and efficiency measures that the department of safety and professional services requires or authorizes to be implemented under chs. 101 and 145.

281.346(8)(c) (c) Great Lakes basin program. No later than the 24th month beginning after the compact’s effective date, the department shall implement a Great Lakes basin water conservation and efficiency program as part of the statewide program under par. (b), for all users of the waters of the Great Lakes basin, that is designed to achieve the goals and objectives for the waters of the Great Lakes basin that are specified under par. (a). The department shall include in the Great Lakes basin program the activities in par. (b) 1. to 3. applicable in the Great Lakes basin and application of the water conservation and efficiency measures specified under par. (d) in subs. (4) (f) 6. and (g) and (6) (c).

281.346(8)(d) (d) Water conservation and efficiency measures. The department shall promulgate rules specifying water conservation and efficiency measures for the purposes of implementing par. (b). In the rules, the department may not require retrofitting of existing fixtures, appliances, or equipment. The department shall specify measures based on all of the following:

281.346(8)(d)1. 1. The amount and type of diversion, withdrawal, or consumptive use and whether the diversion, withdrawal, or consumptive use exists on December 8, 2008, is expanded, or is new.

281.346(8)(d)2. 2. The results of any pilot water conservation program conducted by the department in cooperation with the regional body.

281.346(8)(d)3. 3. The results of any assessments under sub. (11) (d).

281.346(9) (9) Tribal consultation; public participation.

281.346(9)(a) (a) Tribal consultation. The department shall consult with a federally recognized American Indian tribe or band in this state concerning a proposal that may affect the tribe or band and that is subject to regional review or Great Lakes council approval under sub. (4) or (5).

281.346(9)(b) (b) Public notice.

281.346(9)(b)1. 1. The department shall, by rule, create procedures for providing to interested members of the public notices of each complete application that the department receives under sub. (5) to which the state decision-making standard under sub. (5m) or the compact decision-making standard under sub. (6) applies, other than an application from a person operating a public water supply system that is covered by an approved water supply service area plan under s. 281.348, and each complete application that the department receives under sub. (4) and of each general permit that the department proposes to issue under sub. (4s) (a). The department shall include, in the rule, at least the following procedures:

281.346(9)(b)1.a. a. Publication of the notice as a class 1 notice under ch. 985.

281.346(9)(b)1.b. b. Mailing of the notice to any person, group, local governmental unit, or state agency upon request.

281.346(9)(b)1.c. c. Publication of the notice through an electronic notification system established by the department.

281.346(9)(b)1.d. d. Publication of the notice on the department’s Internet website.

281.346(9)(b)2. 2. The department shall establish the form and content of a public notice by rule. The department shall include in every public notice concerning an application to which subd. 1. applies at least the following information:

281.346(9)(b)2.a. a. The name and address of each applicant.

281.346(9)(b)2.b. b. A brief description of the proposal for which the application is made, including the amount of the proposed withdrawal or diversion.

281.346(9)(b)2.c. c. A brief description of the procedures for the formulation of final determinations on applications, including the 30-day comment period required under par. (c).

281.346(9)(b)2.d. d. Information indicating where the complete application may be viewed on the department’s Internet website.

281.346(9)(bm) (bm) Notice date. For the purpose of determining the date on which public notice is provided under this subsection, the date on which the department first publishes the notice on its Internet website shall be considered the date of public notice.

281.346(9)(c) (c) Public comment. The department shall receive public comments on a proposal for which it receives an application to which par. (b) 1. applies or on a proposed general permit under sub. (4s) (a) for a 30-day period beginning when the department gives notice under par. (b) 1. The department shall retain all written comments submitted during the comment period and shall consider the comments in making its decisions on the application.

281.346(9)(d) (d) Public hearing.

281.346(9)(d)1. 1. The department shall provide an opportunity for any interested person or group of persons, any affected local governmental unit, or any state agency to request a public hearing with respect to a proposal for which the department receives an application to which par. (b) 1. applies or on a proposed general permit under sub. (4s) (a). A request for a public hearing shall be filed with the department within 30 days after the department gives notice under par. (b). The party filing a request for a public hearing shall indicate the interest of the party and the reasons why a hearing is warranted. The department shall hold a public hearing on a proposal for which the department receives an application to which par. (b) 1. applies or on a proposed general permit under sub. (4s) (a) if the department determines that there is a significant public interest in holding a hearing.

281.346(9)(d)2. 2. The department shall promulgate, by rule, procedures for the conduct of public hearings held under this paragraph. A hearing held under this paragraph is not a contested case hearing under ch. 227.

281.346(9)(d)3. 3. The department shall provide public notice of any hearing held under this paragraph in the manner provided under par. (b) 1. The notice shall include the time, date, and location of the hearing, a summary of the subject matter of the application or proposed general permit, and information indicating where a copy of the application or proposed general permit that is the subject of the hearing may be found on the department’s Internet website. The summary shall contain a brief, precise, easily understandable, plain language description of the subject matter of the application or proposed general permit. If the hearing concerns an application received by the department, the notice shall also include the name and address of the applicant.

281.346(9)(e) (e) Public access to information. Any record or other information provided to or obtained by the department regarding a proposal for which an application under sub. (4) or (5) is received is a public record as provided in subch. II of ch. 19. The department shall make available to and provide facilities for the public to inspect and copy any records or other information provided to or obtained by the department regarding a proposal for which an application for a new or increased diversion or withdrawal under sub. (4) or (5) is received, except that any record or other information provided to the department may be treated as confidential upon a showing to the secretary that the record or information is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), or upon a determination by the department that domestic security concerns warrant confidential treatment. Nothing in this subsection prevents the use of any confidential records or information obtained by the department in the administration of this section in compiling or publishing general analyses or summaries, if the analyses or summaries do not identify a specific owner or operator.

281.346(9)(h) (h) Expediting review. The department shall take appropriate measures to expedite, to the extent feasible, applicable reviews by the regional body, Great Lakes council, parties, and the provinces of Ontario and Quebec of applications under this section that are subject to regional review.