The statement of scope for this rule, SS 026-22, was approved by the Governor on March 24, 2022, published in Register No. 796A1 on April 4, 2022, and approved by the Natural Resources Board on June 22, 2022. This rule was approved by the Governor on February 1, 2024. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
CREATING RULES
The Wisconsin Natural Resources Board adopts an order create NR 851 relating to the management of diversions (transfers of water from the Great Lakes basin to outside of the Great Lakes basin) and intrabasin transfers including the application and review process and other related criteria. |
DG-03-22
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 281.343, 281.346, and 281.98, Stats. Section 281.343(3)(c)2., Stats., authorizes the state, through the department, to adopt and enforce rules and regulations to implement and enforce the Great Lakes – St. Lawrence River Basin Water Resource Compact and the state’s management programs contemplated by the Compact. Section 281.343(4d), Stats., authorizes the state, through the department, to regulate new or increased diversions and require applications and documentation for new or increased diversions. Section 281.346(3)(b)10. and (e)2., Stats., authorizes the department to promulgate rules to establish reporting requirements and reporting frequencies for any person who begins a diversion. Section 281.346(4)(b)4., Stats., authorizes the department to require by rule additional information from an applicant for a new or increased diversion. Section 281.346(4)(d)1., Stats., authorizes the department to establish requirements by rule for new and increased intrabasin transfers. Section 281.346(4)(g), Stats., requires the department to promulgate rules for certain new or increased diversions that require a demonstration of efficient use and conservation of existing water supplies. Section 281.346(9)(b) to (d), Stats., requires the department to promulgate rules creating a procedure for providing to interested members of the public notices of each complete application the department receives for a diversion or intrabasin transfer; the authorizing statute includes specific minimum requirements for the public notice to be included in the rule, including the form and content of a public notice and procedures for the conduct of public hearings. 3. Explanation of Agency Authority: Wisconsin is a party to the Great Lakes – St. Lawrence River Water Resources Compact (Compact) and is required to, “within its jurisdiction, manage and regulate new or increased withdrawals, consumptive uses, and diversions, including exceptions, in accordance with this compact.” (s. 281.343(4d)(a), Stats.). The legislature ratified and implemented the Compact in ss. 14.95, 281.343, 281.344, 281.346, and 281.348, Stats. To accomplish Compact requirements, Wisconsin has authority to “adopt and enforce rules and regulations to implement and enforce this compact and programs adopted by such party to carry out the management programs contemplated by this compact.” (s. 281.343(3)(c)2., Stats.) 4. Related Statutes or Rules: Chapters NR 852 (Water Conservation and Water Use Efficiency) and 856 (Water Use Registration and Reporting), Wis. Adm. Code., already refer to requirements for diversions. Proposed ch. NR 854, Wis. Adm. Code, (Water Supply Service Area Plans) is being developed simultaneously to this rule. It would create a process for approvable water supply service area plans, which are a required component for an application for a new or increased diversion or intrabasin transfer. 5. Plain Language Analysis: The Wisconsin Legislature ratified the Compact in 2007 Wisconsin Act 227. Section 281.343, Stats., is the ratification and text of the Compact, and s. 281.346, Stats., is Wisconsin’s program for managing and regulating new or increased water withdrawals, diversions and consumptive uses consistent with the provisions of the Compact. The proposed rule establishes department procedures for managing Great Lakes diversions and intrabasin transfers. Diversions are defined as a transfer of water from the Great Lakes basin into a watershed outside the Great Lakes basin, or from the watershed of one of the Great Lakes into that of another, by any means of transfer, including a pipeline, canal, tunnel, aqueduct, channel, modification of the direction of a water course, tanker ship, tanker truck, or rail tanker, with few exceptions (s. 281.346(1)(h), Stats.). 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 (s. 281.346(1)(jm), Stats.). The Compact is a legally binding interstate agreement that became effective on December 8, 2008. The Compact and the adopted rules and guidance detail how the states party to the Compact – Wisconsin, Illinois, Indiana, Michigan, Minnesota, New York, Ohio, and Pennsylvania – will work together to manage and protect the Great Lakes - St. Lawrence River Basin (Basin). The Compact Council’s adopted rules and guidance provide a framework for each state to create programs and enact rules and regulations within their own jurisdictions to protect the Basin. The proposed rule has built in flexibility for Wisconsin to comply with the Compact, Compact rules and guidance documents.
The Great Lakes Compact bans diversions of Great Lakes water with limited exceptions. These exceptions allow a “straddling community” or “community in a straddling county” to apply to divert water (i.e., to move water out of the Great Lakes basin). If certain requirements are met, water may be transferred in some cases from one Great Lakes basin to another through an intrabasin transfer. Currently, the department works with applicants for diversions and intrabasin transfers from the Great Lakes basin on a case-by-case basis, within the statutory authority and parameters in s. 281.346(4), Stats. This rule specifies:
diversion and intrabasin transfer application requirements
department application review processes
department determinations related to approvals, conditional approvals, and denials of diversion applications
public notice and participation; and
reporting requirements. This rule also provides flexibility for Wisconsin to comply with Compact rules and guidance.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: There are no comparable federal regulations pertaining to the management of diversions and intrabasin transfers regulated under the Great Lakes – St. Lawrence River Basin Water Resource Compact. The Compact Council has adopted certain procedures laid out in the Compact Rules of Practice and Procedure, which have been considered while drafting this rule.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope: The department held a preliminary public hearing on the statement of scope for this rule on June 3, 2022. One member of the public attended the preliminary hearing and did not provide comments. The department did not receive any written comments on the scope statement during the preliminary comment period.
8. Comparison with Similar Rules in Adjacent States: In comparison to adjacent states, Illinois’ rules are the most similar to what Wisconsin is proposing for the diversion rule. Michigan and Minnesota have state statutes that mirror the Great Lakes Compact requirements but no corresponding rules. Iowa is not a party to the Great Lakes Compact, and diversions out of Iowa are reviewed under their rules for withdrawals.
Illinois: Illinois’ program regulates diversions within the restrictions of the most recent U.S Supreme Court decree entered in Wisconsin v. Illinois, 278 U.S. 367 (1929). The decree limits Illinois’ diversion of Lake Michigan water to 3,200 cubic feet per second. Illinois’ administrative rules identify the following: requirements for the contents of an application, criteria for determining water needs, emergency conditions, process for transferring water use rights, required conservation practices, other permit conditions, the duration of permits and renewals, reporting requirements, the process for modifying a permit, Illinois’ review and decision process, and penalties. Illinois’ Part 3730 Administrative Rules address the application and review of diversion proposals (Lake Michigan allocations) under the Great Lakes Compact and Agreement in Illinois. Michigan: Michigan has no administrative rule related to the review of Great Lakes diversions or intrabasin transfers.
Minnesota: Minnesota has no administrative rule related to the review of Great Lakes diversions or intrabasin transfers. Minnesota’s statute does contain additional requirements for all diversions greater than 5 million gallons per day. The statute states that Minnesota must notify and solicit comments from the office of the governors and premiers of the Great Lakes states and provinces, the water management agencies, and the international joint commission. The Minnesota state legislature must approve the diversion. The commissioner must consider any comments received, hold a meeting to resolve any objections and send notification of any final decision to the offices originally notified (State Statutes Implementation: M.S. 103G.265, subd. 4).
