Chapter 281

281.77(3) (3) In any action brought by the department of justice under s. 299.95, if the court finds that a regulated activity owned or operated by the defendant has caused a private water supply to become contaminated, polluted or unfit for consumption by humans, livestock or poultry, the court may order the defendant to treat the water to render it fit for consumption by humans, livestock and poultry, repair the private water supply or replace the private water supply and to reimburse the town, village or city for the cost of providing water under sub. (4).

281.77(4) (4) 

281.77(4)(a) (a) The owner of land where the private water supply is located may submit the following information to the town, village or city where the private water supply is located:

281.77(4)(a)1. 1. Documentation from an action under sub. (2) or (3) showing that the department or the department of justice is seeking to obtain treatment, repair or replacement of the damaged private water supply.

281.77(4)(a)2. 2. A declaration of the need for an immediate alternative source of water.

281.77(4)(b) (b) A person who submits information under par. (a) may file a claim with the town, village or city where the private water supply is located. The town, village or city shall supply necessary amounts of water to replace that water formerly obtained from the damaged private water supply. Responsibility to supply water commences at the time the claim is filed. Responsibility to supply water ends upon notification to the town, village or city that an order under sub. (2) or (3) has been complied with or upon a finding that the regulated activity is not the cause of the damage.

281.77(4)(c) (c) If the department or the court does not find that the regulated activity is the cause of the damage to a private water supply, reimbursement to the town, village or city for the costs of supplying water under par. (b), if any, is the responsibility of the person who filed the claim. The town, city or village may assess the owner of the property where the private water supply is located for the costs of supplying water under this subsection by a special assessment under s. 66.0703.

281.77 History History: 1981 c. 374; 1983 a. 27 s. 2202 (38); 1983 a. 410 ss. 75g to 77g; Stats. 1983 s. 144.265; 1989 a. 31; 1995 a. 227 s. 433; Stats. 1995 s. 281.77; 1999 a. 150 s. 672; 2005 a. 347.

281.77 Note NOTE: 2005 Wis. Act 347, which affected this section, contains extensive explanatory notes.

subch. VII of ch. 281 SUBCHAPTER VII

GREAT LAKES REMEDIAL ACTION

281.81 281.81 Definitions. In this subchapter:

281.81(1) (1) “International joint commission” has the meaning given in s. 281.35 (1) (h).

281.81(2) (2) “Remedial action plan” means a comprehensive plan to clean up and restore the environment in a contaminated area that is in or adjacent to Lake Michigan or Lake Superior or a tributary of Lake Michigan or Lake Superior and that is identified as an area of concern by the international joint commission under the Great Lakes water quality agreement.

281.81 History History: 1995 a. 227 s. 412.

281.83 281.83 Remedial action in the Great Lakes and their tributaries.

281.83(1) (1) The department may perform activities to clean up or to restore the environment in an area that is in or adjacent to Lake Michigan or Lake Superior or a tributary of Lake Michigan or Lake Superior if the activities are included in a remedial action plan that is approved by the department.

281.83(2) (2) In selecting projects to perform under this section, the department shall consider the amount of state funds available, the availability of matching funds from federal, private or other sources, the willingness and ability of a responsible person to fund a project, the willingness and ability of a local governmental unit, as defined in s. 281.51 (1) (c), to undertake or assist in a project, the severity of the environmental contamination that a project will address and the size of the population affected by the contamination.

281.83(3) (3) 

281.83(3)(a) (a) If a person provides funding for an activity that is part of a remedial action plan, that provision of funding is not evidence of liability or an admission of liability for any environmental contamination.

281.83(3)(b) (b) The acceptance by the department of funding from a person for an activity that is part of a remedial action plan does not limit the ability of the department to take action against that person if the department determines that the person is responsible, in whole or in part, for environmental contamination.

281.83 History History: 1995 a. 227 ss. 411, 413.

281.85 281.85 Great Lakes protection fund share. The department may use moneys from the appropriation under s. 20.370 (4) (ah) for any of the following purposes:

281.85(1) (1) To implement activities included in a remedial action plan.

281.85(2) (2) To restore or protect fish or wildlife habitats in or adjacent to Lake Michigan or Lake Superior.

281.85(3) (3) For planning or providing information related to cleaning up or protecting the Great Lakes.

281.85 History History: 1995 a. 227 ss. 414, 416; 1997 a. 27.

281.87 281.87 Great Lakes contaminated sediment removal. The department may expend funds from the appropriation under s. 20.866 (2) (ti) to pay a portion of the costs of a project to remove contaminated sediment from Lake Michigan or Lake Superior or a tributary of Lake Michigan or Lake Superior if the project is in an impaired water body that the department has identified under 33 USC 1313 (d) (1) (A) and the source of the impairment is contaminated sediment.

281.87 History History: 2007 a. 20; 2009 a. 28.

subch. VIII of ch. 281 SUBCHAPTER VIII

GENERAL PROVISIONS; ENFORCEMENT

281.91 281.91 State agency personnel to report water pollution. Personnel of all state agencies shall report any evidence of water pollution found by them to the department.

281.91 History History: 1995 a. 227 ss. 396, 987.

281.92 281.92 Limitation. Nothing in this chapter affects ss. 196.01 to 196.79 or ch. 31.

281.92 History History: 1979 c. 221 s. 624; Stats. 1979 s. 144.27; 1995 a. 227 s. 435; Stats. 1995 s. 281.92.

281.92 Annotation The Department of Natural Resources may consider wetland water quality standards in ch. NR 103, Wis. Adm. Code, when making a water level determination under s. 31.02 (1). This section does not preclude the department from applying the wetland water quality standards in ch. NR 103 or other parts of this chapter, when appropriate, after weighing factors under s. 31.02 (1). Rock-Koshkonong Lake District v. DNR, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

281.93 281.93 Hearings on certain water use actions.

281.93(1) (1) Permit or approval holder or applicant; order recipient. Any permit or approval, part of a permit or approval, condition or requirement in a permit or approval, order, decision or determination by the department under s. 281.344, 281.346, or 281.35 shall become effective unless the permit or approval holder or applicant or the order recipient seeks a hearing challenging the action in the following manner:

281.93(1)(a) (a) Petition. The person seeking a hearing shall file a petition with the department within 30 days after the date of the action sought to be reviewed. The petition shall set forth specifically the issue sought to be reviewed, the interest of the petitioner, the reasons why a hearing is warranted, and the relief desired. Upon receipt of the petition, the department shall hold a hearing after at least 10 days’ notice.

281.93(1)(b) (b) Hearing. The hearing shall be a contested case under ch. 227. At the beginning of the hearing the petitioner shall present evidence in support of the allegations made in the petition. Following the hearing the department’s action may be affirmed, modified, or withdrawn.

281.93(1m) (1m) Effect of a challenge. If a permit or approval holder or applicant seeks a hearing challenging part of a permit or approval or a condition or requirement in a permit or approval under sub. (1), the remainder of the permit or approval shall become effective and the permit or approval holder or applicant may, at its discretion, begin the activity for which the application was submitted or for which the permit or approval was issued.

281.93(2) (2) Other persons. Except as provided in ss. 281.344 (4e) (g) and 281.346 (4e) (g), any person who is not entitled to seek a hearing under sub. (1) (intro.) and who meets the requirements of s. 227.42 (1) or who submitted comments in the public comment process under s. 281.344, 281.346, or 281.35 may seek review under sub. (1) of any permit or approval, part of a permit or approval, order, decision, or determination by the department under s. 281.344, 281.346, or 281.35.

281.93(3) (3) Mining hearing. Subsections (1) and (2) do not apply if a hearing on the matter is conducted as a part of a hearing under s. 293.43.

281.93 History History: 2007 a. 227.

281.94 281.94 Investigation of alleged water withdrawal violations.

281.94(1) (1) Any 6 or more residents of this state may petition for an investigation of a withdrawal alleged to be in violation of s. 281.35, 281.344 (3) (a), or 281.346 (3) (a), in violation of a condition, limitation or restriction of a permit or approval issued in conformance with s. 281.35 (6) (a) or in violation of any rule promulgated under s. 281.35 (4) to (6), 281.344 (3) (a), or 281.346 (3) (a) by submitting to the department a petition identifying the alleged violator and setting forth in detail the reasons for believing a violation occurred. The petition shall state the name and address of a person in this state authorized to receive service of answer and other papers on behalf of the petitioners and the name and address of a person authorized to appear at a hearing on behalf of the petitioners.

281.94(2) (2) Upon receipt of a petition, the department shall do one of the following:

281.94(2)(a) (a) If the department determines that the allegations are true, order the alleged violator to take whatever action is necessary to achieve compliance with the statute, rule, condition, limitation or restriction.

281.94(2)(b) (b) Conduct a contested case hearing on the allegations of the petition. Within 60 days after the hearing, the department shall either dismiss the petition or notify the alleged violator of its finding that the allegations are true and order the alleged violator to take whatever action is necessary to achieve compliance with the statute, rule, condition, limitation or restriction.

281.94(2)(d) (d) If the department determines that the allegations are untrue or that the petition was filed maliciously or in bad faith, dismiss the petition without holding a hearing.

281.94(3) (3) Any person who maliciously or in bad faith files a petition under sub. (1) is liable for attorney fees and damages or other appropriate relief to the person that is the subject of the petition.

281.94 History History: 1985 a. 60; 1995 a. 227 s. 827; Stats. 1995 s. 281.94; 2007 a. 227.

281.95 281.95 Remedies; water withdrawal violations. Any person who makes a withdrawal in violation of s. 281.35, 281.344 (3) (a), or 281.346 (3) (a), in violation of a condition, limitation or restriction of a permit or approval issued in conformance with s. 281.35 (6) (a) or in violation of any rule promulgated under s. 281.35 (4) to (6), 281.344 (3) (a), or 281.346 (3) (a) is liable to any person who is adversely affected by the withdrawal for damages or other appropriate relief. Any person who is or may be adversely affected by an existing or proposed withdrawal which is in violation of a condition, limitation or restriction of a permit or approval issued in conformance with s. 281.35 (6) (a) or in violation of any rule promulgated under s. 281.35 (4) to (6) may bring an action in the circuit court to restrain or enjoin the withdrawal.

281.95 History History: 1985 a. 60; 1995 a. 227 s. 828; Stats. 1995 s. 281.95; 2007 a. 227.

281.96 281.96 Visitorial powers of department. Every owner of an industrial establishment shall furnish to the department all information required by it in the discharge of its duties under subch. II, except s. 281.17 (6) and (7). Any member of the natural resources board or any employee of the department may enter any industrial establishment for the purpose of collecting such information, and no owner of an industrial establishment shall refuse to admit such member or employee. The department shall make such inspections at frequent intervals. The secretary and all members of the board shall have power for all purposes falling within the department’s jurisdiction to administer oaths, issue subpoenas, compel the attendance of witnesses and the production of necessary or essential data.

281.96 History History: 1995 a. 227 ss. 402, 403.

281.97 281.97 Records; inspection. Records required by the department shall be kept by the owners and the department supplied with certified copies and such other information as it may require. Agents of the department may enter buildings, structures and premises of owners supplying the public or industrial plants with water, ice, sewerage systems, sewage or refuse disposal service and private properties to collect samples, records and information, and to ascertain if the rules and orders of the department are complied with.

281.97 History History: 1995 a. 227 s. 410; Stats. 1995 s. 281.97.

281.98 281.98 Penalties.

281.98(1) (1) Except as provided in ss. 281.344 (14) (a), 281.36, 281.346 (14) (a), 281.47 (1) (d), 281.75 (19), and 281.99 (2), any person who violates this chapter or any rule promulgated or any plan approval, license, special order, or water quality certification issued under this chapter shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense. While an order is suspended, stayed, or enjoined, this penalty does not accrue.

281.98(2) (2) In addition to the penalties provided under sub. (1) or s. 281.99 (2), the court may award the department of justice the reasonable and necessary expenses of the investigation and prosecution of a violation of this chapter, including attorney fees. The department of justice shall deposit in the state treasury for deposit into the general fund all moneys that the court awards to the department or the state under this subsection. The costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh).

281.98(3) (3) In addition to the penalties under sub. (1), the court may order the defendant to abate any nuisance, restore a natural resource or take, or refrain from taking, any other action as necessary to eliminate or minimize any environmental damage caused by the defendant.

281.98 History History: 1995 a. 227; 1997 a. 27; 1999 a. 147; 2001 a. 6, 109; 2003 a. 309; 2007 a. 227; 2011 a. 118.

281.99 281.99 Administrative forfeitures for safe drinking water violations.

281.99(1) (1) 

281.99(1)(a) (a) The department may directly assess forfeitures in the amounts provided under sub. (2) for violations of safe drinking water program rules promulgated under s. 281.17 (8) or (9).

281.99(1)(b) (b)

281.99(1)(b)1. 1. Subject to subd. 2., if the department proposes to assess a forfeiture for a particular violation, it shall first provide written notice of the alleged violation to the water system owner or operator. The notice shall state the amount of the proposed forfeiture, an explanation of how the amount of the proposed forfeiture was determined under sub. (2) (b) and a proposed order under par. (c). After providing the notice, the department shall attempt to negotiate with the water system owner or operator to remedy the alleged violation. If the water system owner or operator corrects the alleged violation, or if the department and the water system owner or operator reach a compliance agreement, before an order is issued under par. (c), the department may not assess a forfeiture for the alleged violation.

281.99(1)(b)2. 2. The department may directly assess a forfeiture by issuing an order under par. (c) without first providing notice if the alleged violation either creates an acute risk to public health or safety or is part of a documented pattern of noncompliance with one or more rules promulgated under s. 281.17 (8) or (9).

281.99(1)(c) (c) If the department determines that a forfeiture should be assessed for a particular violation, it shall issue an order under s. 281.19 (2) (a) to the water system owner or operator alleged to have committed the violation. Except as provided in par. (b) 2., the department may not issue the order until at least 60 days after the day on which it provided notice under par. (b) 1. The order shall specify the amount of the forfeiture assessed, the violation and the rule alleged to have been violated and shall inform the licensee of the right to contest the order under sub. (3).

281.99(2) (2) 

281.99(2)(a) (a) The amount of forfeitures that the department may assess under this section are as follows:

281.99(2)(a)1. 1. For water systems that serve a population of more than 10,000 persons, not less than $10 nor more than $1,000 for each day of each violation, but not more than $25,000 per violation in one order.

281.99(2)(a)2. 2. For water systems that serve a population of 10,000 persons or less, not less than $10 and not more than $500 for each day of violation, but not more than $25,000 in one order.

281.99(2)(b) (b) The department, in determining the amount of forfeiture that it assesses under this section, shall consider the following factors, as appropriate:

281.99(2)(b)1. 1. The gravity of the violation, including the probability of harm to persons served by the water system.

281.99(2)(b)2. 2. Good faith exercised by the water system owner or operator, including past or ongoing efforts to correct problems or achieve compliance with the safe drinking water program.

281.99(2)(b)3. 3. Any previous violations committed by the water system owner or operator at the same water system.

281.99(2)(b)4. 4. The financial benefit to the water system owner or operator of continuing the violation.

281.99(2)(b)5. 5. Any other relevant factors.

281.99(2)(c) (c) While an order issued under this section is contested, suspended, stayed or enjoined, any forfeiture under this section does not accrue.

281.99(3) (3) A water system owner or operator may contest the issuance of an order and the assessment of a forfeiture under this section using the procedure under ch. 227 or s. 281.19 (8). A water system owner or operator that timely requests a hearing under ch. 227 is entitled to a contested case hearing.

281.99(4) (4) All forfeitures shall be paid to the department within 60 days after receipt of the order or according to a schedule agreed to by the department and the water system owner or operator or, if the forfeiture is contested under sub. (3), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order. The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund.

281.99(5) (5) The attorney general may bring an action as provided in s. 281.19 (2) (a) in the name of the state to collect any forfeiture imposed under this section if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews.

281.99(6) (6) Section 893.80 does not apply to actions commenced under this section.

281.99 History History: 1997 a. 27, 237; 2003 a. 33.