Chapter NR 142

NR 142.06 NR 142.06 Water loss approval.

NR 142.06(1) (1) Approval required. Before a person may begin a new withdrawal or increase the amount of an existing withdrawal, the person shall apply to the department under s. 30.18 or 281.41, Stats., for a new approval or a modification of an existing approval if either of the following apply:

NR 142.06(1)(a) (a) The person proposes to begin a withdrawal that will result in a water loss averaging more than 2,000,000 gallons per day in any 30-day period.

NR 142.06(1)(b) (b) The person proposes to increase a withdrawal by an amount that will result in a water loss averaging more than 2,000,000 gallons per day in any 30-day period above the person’s authorized base level of water loss.

NR 142.06(2) (2) Application information. A water loss approval application shall contain a statement of and documentation for the following:

NR 142.06(2)(a) (a) The current operating capacity of the withdrawal system, if the proposed increase requires the expansion of an existing system;

NR 142.06(2)(b) (b) The total proposed operating capacity of the withdrawal system;

NR 142.06(2)(c) (c) The location and source of the proposed withdrawal;

NR 142.06(2)(d) (d) The location of the proposed discharge or return flow;

NR 142.06(2)(e) (e) The location and nature of the proposed water use;

NR 142.06(2)(f) (f) The estimated average annual and monthly volumes and rates of the proposed withdrawal;

NR 142.06(2)(g) (g) The estimated average annual and monthly volumes and rates of the proposed water loss;

NR 142.06(2)(h) (h) The anticipated effects, if any, the proposed withdrawal will have on existing uses of water resources and related land uses both within and outside of the Great Lakes basin or the upper Mississippi river basin, including effects on:

NR 142.06(2)(h)1. 1. Public and private potable water supplies.

NR 142.06(2)(h)2. 2. Agricultural water use such as irrigation and livestock watering and washing.

NR 142.06(2)(h)3. 3. Industrial and commercial water use.

NR 142.06(2)(h)4. 4. Commercial navigation use, including the impact on the need for dredging of harbors and channels.

NR 142.06(2)(h)5. 5. Hydroelectric and thermoelectric power production.

NR 142.06(2)(h)6. 6. Fish and wildlife, including impacts on wetlands, fish spawning areas and threatened or endangered species.

NR 142.06(2)(h)7. 7. Recreation, tourism and scenic beauty.

NR 142.06(2)(i) (i) Any land acquisitions, equipment, energy consumption or the relocation or resiting of any existing community, facility, right-of-way or structure that will be required;

NR 142.06(2)(j) (j) The total anticipated costs of any proposed construction;

NR 142.06(2)(k) (k) A list of all federal, state, provincial and local approvals, permits, licenses and other authorizations required for any proposed construction;

NR 142.06(2)(L) (L) A statement, with supporting materials, as to whether the proposed withdrawal complies with all applicable plans for the use, management and protection of the waters of the state and related land resources, including plans developed under ss. 281.12 (1) and 283.83, Stats., and the requirements specified in any water quantity resources plan under s. 281.35 (8), Stats.;

NR 142.06(2)(m) (m) A description of alternatives which may satisfy the applicant’s needs for water if the application is denied or modified;

NR 142.06(2)(n) (n) A description of the conservation practices the applicant intends to follow.

NR 142.06(3) (3) Department determinations. The department may approve an application if it finds:

NR 142.06(3)(a) (a) That no public or private water rights in navigable waters will be adversely affected;

NR 142.06(3)(b) (b) That the proposed withdrawal does not conflict with any applicable plan for future uses of the waters of the state, including plans developed under ss. 281.12 (1) and 283.83, Stats., and any water quantity resources plans prepared under s. 281.35 (8), Stats.

NR 142.06(3)(c) (c) That both the applicant’s current water use, if any, and the applicant’s proposed plans for withdrawal, transportation, development and use of water resources incorporate reasonable conservation practices;

NR 142.06(3)(d) (d) That the proposed withdrawal and uses will not have a significant adverse impact on the environment and ecosystem of the Great Lakes basin or the upper Mississippi river basin;

NR 142.06(3)(e) (e) That the proposed withdrawal and uses are consistent with the protection of public health, safety and welfare and will not be detrimental to the public interest; and

NR 142.06(3)(f) (f) That the proposed withdrawal will not have a significant detrimental effect on the quantity and quality of the waters of the state.

NR 142.06(4) (4) Department determinations on interbasin diversions. If the proposed withdrawal will result in an interbasin diversion, the department may approve an application if it finds in addition to the criteria of sub. (3):

NR 142.06(4)(a) (a) That each state or province to which the water will be diverted has developed and is implementing a plan to manage and conserve its own water quantity resources, and that further development of its water resources is impractical or would have a substantial adverse economic, social or environmental impact;

NR 142.06(4)(b) (b) That granting the application will not impair the ability of the Great Lakes basin states and provinces or upper Mississippi river basin states to meet their own needs;

NR 142.06(4)(c) (c) That the interbasin diversion alone, or in combination with other existing water losses, will not have a significant adverse impact on lake levels, water use, the environment or the ecosystem of the Great Lakes basin or upper Mississippi river basin; and

NR 142.06(4)(d) (d) That the proposed withdrawal is consistent with all applicable federal, regional and interstate water resources plans.

NR 142.06(5) (5) Review of applications.

NR 142.06(5)(a) (a) Within 60 days after receipt of an application, the department shall either determine the application is complete or shall notify the applicant in writing that the application is not complete and shall specify the information which is required to make the application complete.

NR 142.06(5)(b) (b) Within 10 business days after its determination that an application is complete, the department shall, at a minimum, provide notice of the receipt of the application to be published as a class 1 notice in the official state newspaper.

NR 142.06(5)(c) (c) Within 90 days after receipt of a complete application, the department shall notify the applicant in writing of the approval, conditional approval, or denial of the application. If the application is denied, the reason for denial shall be included in the notification. This time period may be extended for applications which require consultation under s. NR 142.07 or which require extension of the plan review time under s. 281.41, Stats.

NR 142.06(5)(d) (d) Except as provided in s. 227.42 (4), Stats., any person who receives notice of a denial or conditional approval under par. (c) is entitled to a contested case hearing under ch. 227, Stats., if the person requests the hearing within 30 days after receipt of the notice.

NR 142.06 Note Note: Thirty days equals approximately 21 business days.

NR 142.06(6) (6) Permit conditions and reporting requirements.

NR 142.06(6)(a) (a) Permit conditions. If a proposed application under this section is conditionally approved, the department may require the applicant to provide periodic reports or other evidence documenting how the applicant is meeting the conditions of the approval.

NR 142.06(6)(b) (b) Reporting requirements. Persons whose applications are approved or conditionally approved under sub. (5), shall, no later than March 1 of each calendar year, provide the department a statement of, and supporting documentation for, the following:

NR 142.06(6)(b)1. 1. The actual or estimated average annual and monthly volumes and rates of withdrawal.

NR 142.06(6)(b)2. 2. The actual or estimated average annual and monthly volumes and rates of water loss resulting from the withdrawal.

NR 142.06(7) (7) Permit reviews.

NR 142.06(7)(a) (a) Department review. The department shall review each approval prior to the expiration date specified as a condition of approval under sub. (5) (c), if any, or within 5 years from the date of issuance and at least once every 5 years thereafter.

NR 142.06(7)(b) (b) Permit modification.

NR 142.06(7)(b)1. 1. ‘Department-initiated.’ After notice and opportunity for hearing in accordance with the procedures of s. 227.51, Stats., the department may at any time propose modifications of the approval or additional conditions, limitations or restrictions it determines are necessary to ensure compliance with this chapter or with any other applicable statute or rule.

NR 142.06(7)(b)2. 2. ‘Others.’ A person to whom an approval has been issued or any person adversely affected by a condition, limitation or a restriction of an approval may request that the department modify the condition, limitation or restriction of the approval.

NR 142.06(7)(c) (c) Permit revocation. If the department, after notice and hearing in accordance with the procedures of s. 227.51, Stats., determines that a person to whom an approval has been issued would be unable under any conditions, limitations or restrictions to comply with this chapter or other applicable statutes or rules, it shall revoke the approval.

NR 142.06(7)(d) (d) Final decisions. Decisions by the department on modifications or revocations issued under this subsection shall be final decisions of the department.

NR 142.06(8) (8) Transferability. If an original applicant relinquishes control of a withdrawal authorized under a water loss approval, a new approval shall be obtained from the department by the new owner or operator before operating the withdrawal.

NR 142.06 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88; corrections in (1) (intro.), (2) (L), (3) (b), (5) (c), made under s. 13.93 (2m) (b) 7., Stats., Register, March, 2000, No. 531; correction in (1) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register December 2010 No. 660.

NR 142.07 NR 142.07 Great Lakes basin water loss.

NR 142.07(1) (1) Consultation required. If the department receives an application that, if approved, will result in a new water loss to the Great Lakes basin averaging more than 5,000,000 gallons per day in any 30-day period, or an increase in a withdrawal by an amount that will result in a water loss averaging 5,000,000 gallons per day in any 30-day period above the applicant’s authorized base level of water loss, the department shall notify the office of the governor or premier and the agency responsible for management of water resources in each state and province of the Great Lakes region and, if required under the boundary waters treaty of 1909, the international joint commission. The department shall also request each state and province in the Great Lakes region to comment on the application.

NR 142.07(2) (2) Department response.

NR 142.07(2)(a) (a) In making its determination on an application reviewed under this section, the department shall consider any comments that are received within 45 days after each state and province of the Great Lakes region has been notified of the proposed diversion.

NR 142.07(2)(b) (b) If a written request is received from a governor or premier, or designated representative of a state or province of the Great Lakes region, the department shall convene a consultation meeting of these states and provinces to discuss the application. The department shall provide at least 30 days notice of this consultation meeting to the governors or premiers, or their designated representatives.

NR 142.07(2)(c) (c) If a consultation meeting is convened, the department shall provide the states and provinces of the Great Lakes region a draft decision memorandum which shall include findings of fact and its proposed decision to deny, approve, or conditionally approve the application.

NR 142.07(2)(d) (d) Prior to issuing a final decision on the application, the department shall allow 30 days for the states and provinces of the Great Lakes region to provide written comments on the draft decision memorandum.

NR 142.07(2)(e) (e) The department’s final notice of decision shall be distributed to the states and provinces of the Great Lakes region within 15 days after permit issuance or denial.

NR 142.07 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88.

NR 142.09 NR 142.09 Department investigations.

NR 142.09(1) (1) Complaint procedure. Any 6 or more residents of the state may petition for an investigation of a withdrawal alleged to be in violation of s. 281.35, Stats., this rule or an order issued by the department 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 the 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.

NR 142.09(2) (2) Petition procedure. Upon receipt of a petition, the department shall do one of the following:

NR 142.09(2)(a) (a) If the department determines that the allegations of the petitions are true, it shall order the alleged violator to take whatever action is necessary to achieve compliance with the statute, rule, condition, limitation or restriction; or

NR 142.09(2)(b) (b) If the department determines that the allegations are untrue, it shall dismiss the petition.

NR 142.09(3) (3) False petitions. Any person who maliciously or in bad faith files a petition under sub. (1) is liable for attorney’s fees and damages or other appropriate relief to the person who is the subject of the petition.

NR 142.09(4) (4) Appeal of decisions. Any person alleged to be in violation of s. 281.35, Stats., this rule or an order issued by the department, may request the department to conduct a contested case hearing in accordance with the procedures of ch. 227, Stats., on the allegations of the petition.

NR 142.09 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88; corrections in (1) and (4) made under s. 13.93 (2m) (b) 7., Stats., Register, March, 2000, No. 531.