Chapter 281

281.343(4h) (4h) Water management and regulation; regional review.

281.343(4h)(a) (a) General.

281.343(4h)(a)1. 1. It is the intention of the parties to participate in regional review of proposals with the provinces, as described in this compact and the agreement.

281.343(4h)(a)2. 2. Unless the applicant or the originating party otherwise requests, it shall be the goal of the regional body to conclude its review no later than 90 days after notice under par. (b) of such proposal is received from the originating party.

281.343(4h)(a)3. 3. Proposals for exceptions subject to regional review shall be submitted by the originating party to the regional body for regional review and, where applicable, to the council for concurrent review.

281.343(4h)(a)4. 4. The parties agree that the protection of the integrity of the Great Lakes — St. Lawrence River Basin ecosystem shall be the overarching principle for reviewing proposals subject to regional review, recognizing uncertainties with respect to demands that may be placed on basin water, including groundwater, levels and flows of the Great Lakes and the St. Lawrence River, future changes in environmental conditions, the reliability of existing data, and the extent to which diversions may harm the integrity of the basin ecosystem.

281.343(4h)(a)5. 5. The originating party shall have lead responsibility for coordinating information for resolution of issues related to evaluation of a proposal and shall consult with the applicant throughout the regional review process.

281.343(4h)(a)6. 6. A majority of the members of the regional body may request regional review of a regionally significant or potentially precedent setting proposal. Such regional review must be conducted, to the extent possible, within the time frames set forth in this subsection. Any such regional review shall be undertaken only after consulting the applicant.

281.343(4h)(b) (b) Notice from originating party to the regional body.

281.343(4h)(b)1. 1. The originating party shall determine if a proposal is subject to regional review. If so, the originating party shall provide timely notice to the regional body and the public.

281.343(4h)(b)2. 2. Such notice shall not be given unless and until all information, documents, and the originating party’s technical review needed to evaluate whether the proposal meets the standard of review and decision have been provided.

281.343(4h)(b)3. 3. An originating party may:

281.343(4h)(b)3.a. a. Provide notice to the regional body of an application, even if notification is not required; or

281.343(4h)(b)3.b. b. Request regional review of an application, even if regional review is not required. Any such regional review shall be undertaken only after consulting the applicant.

281.343(4h)(b)4. 4. An originating party may provide preliminary notice of a potential proposal.

281.343(4h)(c) (c) Public participation.

281.343(4h)(c)1. 1. To ensure adequate public participation, the regional body shall adopt procedures for the review of proposals that are subject to regional review in accordance with subs. (4) to (4z).

281.343(4h)(c)2. 2. The regional body shall provide notice to the public of a proposal undergoing regional review. Such notice shall indicate that the public has an opportunity to comment in writing to the regional body on whether the proposal meets the standard of review and decision.

281.343(4h)(c)3. 3. The regional body shall hold a public meeting in the state or province of the originating party in order to receive public comment on the issue of whether the proposal under consideration meets the standard of review and decision.

281.343(4h)(c)4. 4. The regional body shall consider the comments received before issuing a declaration of finding.

281.343(4h)(c)5. 5. The regional body shall forward the comments it receives to the originating party.

281.343(4h)(d) (d) Technical review.

281.343(4h)(d)1. 1. The originating party shall provide the regional body with its technical review of the proposal under consideration.

281.343(4h)(d)2. 2. The originating party’s technical review shall thoroughly analyze the proposal and provide an evaluation of the proposal sufficient for a determination of whether the proposal meets the standard of review and decision.

281.343(4h)(d)3. 3. Any member of the regional body may conduct the member’s own technical review of any proposal subject to regional review.

281.343(4h)(d)4. 4. At the request of the majority of its members, the regional body shall make such arrangements as it considers appropriate for an independent technical review of a proposal.

281.343(4h)(d)5. 5. All parties shall exercise their best efforts to ensure that a technical review undertaken under subd. 3. or 4. does not unnecessarily delay the decision by the originating party on the application. Unless the applicant or the originating party otherwise requests, all technical reviews shall be completed no later than 60 days after the date the notice of the proposal was given to the regional body.

281.343(4h)(e) (e) Declaration of finding.

281.343(4h)(e)1. 1. The regional body shall meet to consider a proposal. The applicant shall be provided with an opportunity to present the proposal to the regional body at such time.

281.343(4h)(e)2. 2. The regional body, having considered the notice, the originating party’s technical review, any other independent technical review that is made, any comments or objections including the analysis of comments made by the public and first nations and federally recognized tribes, and any other information that is provided under this compact shall issue a declaration of finding that the proposal under consideration:

281.343(4h)(e)2.a. a. Meets the standard of review and decision;

281.343(4h)(e)2.b. b. Does not meet the standard of review and decision; or

281.343(4h)(e)2.c. c. Would meet the standard of review and decision if certain conditions were met.

281.343(4h)(e)3. 3. An originating party may decline to participate in a declaration of finding made by the regional body.

281.343(4h)(e)4. 4. The parties recognize and affirm that it is preferable for all members of the regional body to agree whether the proposal meets the standard of review and decision.

281.343(4h)(e)5. 5. If the members of the regional body who participate in the declaration of finding all agree, they shall issue a written declaration of finding with consensus.

281.343(4h)(e)6. 6. In the event that the members cannot agree, the regional body shall make every reasonable effort to achieve consensus within 25 days.

281.343(4h)(e)7. 7. Should consensus not be achieved, the regional body may issue a declaration of finding that presents different points of view and indicates each party’s conclusions.

281.343(4h)(e)8. 8. The regional body shall release the declarations of finding to the public.

281.343(4h)(e)9. 9. The originating party and the council shall consider the declaration of finding before making a decision on the proposal.

281.343(4j) (4j) Water management and regulation; proposals subject to prior notice.

281.343(4j)(a) (a) Beginning no later than 5 years after the effective date of this compact, the originating party shall provide all parties and the provinces with detailed and timely notice and an opportunity to comment within 90 days on any proposal for a new or increased consumptive use of 5,000,000 gallons per day or greater average in any 90-day period. Comments shall address whether or not the proposal is consistent with the standard of review and decision. The originating party shall provide a response to any such comment received from another party.

281.343(4j)(b) (b) A party may provide notice, an opportunity to comment, and a response to comments even if this is not required under par. (a). Any provision of such notice and opportunity to comment shall be undertaken only after consulting the applicant.

281.343(4L) (4L) Water management and regulation; council actions.

281.343(4L)(a) (a) Proposals for exceptions subject to council review shall be submitted by the originating party to the council for council review, and where applicable, to the regional body for concurrent review.

281.343(4L)(b) (b) The council shall review and take action on proposals in accordance with this compact and the standard of review and decision. The council shall not take action on a proposal subject to regional review pursuant to this compact unless the proposal shall have been first submitted to and reviewed by the regional body. The council shall consider any findings resulting from such review.

281.343(4m) (4m) Water management and regulation; prohibition of new or increased diversions. All new or increased diversions are prohibited, except as provided for in sub. (4n).

281.343(4n) (4n) Water management and regulation; exceptions to the prohibition of diversions.

281.343(4n)(a) (a) Straddling communities. A proposal to transfer water to an area within a straddling community but outside the basin or outside the source Great Lake watershed shall be excepted from the prohibition against diversions and be managed and regulated by the originating party provided that, regardless of the volume of water transferred, all of the water so transferred shall be used solely for public water supply purposes within the straddling community, and:

281.343(4n)(a)1. 1. All water withdrawn from the basin shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:

281.343(4n)(a)1.a. a. Is part of a water supply or wastewater treatment system that combines water from inside and outside of the basin;

281.343(4n)(a)1.b. b. Is treated to meet applicable water quality discharge standards and to prevent the introduction of invasive species into the basin;

281.343(4n)(a)1.c. c. Maximizes the portion of water returned to the source watershed as basin water and minimizes the surface water or groundwater from outside the basin;

281.343(4n)(a)2. 2. If the proposal results from a new or increased withdrawal of 100,000 gallons per day or greater average over any 90-day period, the proposal shall also meet the exception standard; and

281.343(4n)(a)3. 3. If the proposal results in a new or increased consumptive use of 5,000,000 gallons per day or greater average over any 90-day period, the proposal shall also undergo regional review.

281.343(4n)(b) (b) Intrabasin transfer. A proposal for an intrabasin transfer that would be considered a diversion under this compact, and not already excepted pursuant to par. (a), shall be excepted from the prohibition against diversions, provided that:

281.343(4n)(b)1. 1. If the proposal results from a new or increased withdrawal of less than 100,000 gallons per day average over any 90-day period, the proposal shall be subject to management and regulation at the discretion of the originating party.

281.343(4n)(b)2. 2. If the proposal results from a new or increased withdrawal of 100,000 gallons per day or greater average over any 90-day period and if the consumptive use resulting from the withdrawal is less than 5,000,000 gallons per day average over any 90-day period:

281.343(4n)(b)2.a. a. The proposal shall meet the exception standard and be subject to management and regulation by the originating party, except that the water may be returned to another Great Lake watershed rather than the source watershed;

281.343(4n)(b)2.b. b. The applicant shall demonstrate that there is no feasible, cost-effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies; and

281.343(4n)(b)2.c. c. The originating party shall provide notice to the other parties prior to making any decision with respect to the proposal.

281.343(4n)(b)3. 3. If the proposal results in a new or increased consumptive use of 5,000,000 gallons per day or greater average over any 90-day period:

281.343(4n)(b)3.a. a. The proposal shall be subject to management and regulation by the originating party and shall meet the exception standard, ensuring that water withdrawn shall be returned to the source watershed;

281.343(4n)(b)3.b. b. The applicant shall demonstrate that there is no feasible, cost-effective, and environmentally sound water supply alternative within the Great Lake watershed to which the water will be transferred, including conservation of existing water supplies;

281.343(4n)(b)3.c. c. The proposal undergoes regional review; and

281.343(4n)(b)3.d. d. The proposal is approved by the council. Council approval shall be given unless one or more council members vote to disapprove.

281.343(4n)(c) (c) Straddling counties.

281.343(4n)(c)1. 1. A proposal to transfer water to a community within a straddling county that would be considered a diversion under this compact shall be excepted from the prohibition against diversions, provided that it satisfies all of the following conditions:

281.343(4n)(c)1.a. a. The water shall be used solely for the public water supply purposes of the community within a straddling county that is without adequate supplies of potable water;

281.343(4n)(c)1.b. b. The proposal meets the exception standard, maximizing the portion of water returned to the source watershed as basin water and minimizing the surface water or groundwater from outside the basin;

281.343(4n)(c)1.c. c. The proposal shall be subject to management and regulation by the originating party, regardless of its size;

281.343(4n)(c)1.d. d. There is no reasonable water supply alternative within the basin in which the community is located, including conservation of existing water supplies;

281.343(4n)(c)1.e. e. Caution shall be used in determining whether or not the proposal meets the conditions for this exception. This exception should not be authorized unless it can be shown that it will not endanger the integrity of the basin ecosystem;

281.343(4n)(c)1.f. f. The proposal undergoes regional review; and

281.343(4n)(c)1.g. g. The proposal is approved by the council. Council approval shall be given unless one or more council members vote to disapprove.

281.343(4n)(c)2. 2. A proposal must satisfy all of the conditions listed above. Further, substantive consideration will also be given to whether or not the proposal can provide sufficient scientifically based evidence that the existing water supply is derived from groundwater that is hydrologically interconnected to waters of the basin.

281.343(4n)(d) (d) Exception standard. Proposals subject to management and regulation in this subsection shall be declared to meet this exception standard and may be approved as appropriate only when the following criteria are met:

281.343(4n)(d)1. 1. The need for all or part of the proposed exception cannot be reasonably avoided through the efficient use and conservation of existing water supplies;

281.343(4n)(d)2. 2. The exception will be limited to quantities that are considered reasonable for the purposes for which it is proposed;

281.343(4n)(d)3. 3. All water withdrawn shall be returned, either naturally or after use, to the source watershed less an allowance for consumptive use. No surface water or groundwater from outside the basin may be used to satisfy any portion of this criterion except if it:

281.343(4n)(d)3.a. a. Is part of a water supply or wastewater treatment system that combines water from inside and outside of the basin; and

281.343(4n)(d)3.b. b. Is treated to meet applicable water quality discharge standards and to prevent the introduction of invasive species into the basin;

281.343(4n)(d)4. 4. The exception will be implemented so as to ensure that it will result in no significant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources of the basin with consideration given to the potential cumulative impacts of any precedent-setting consequences associated with the proposal;

281.343(4n)(d)5. 5. The exception will be implemented so as to incorporate environmentally sound and economically feasible water conservation measures to minimize water withdrawals or consumptive use;

281.343(4n)(d)6. 6. The exception will be implemented so as to ensure that it is in compliance with all applicable municipal, state, and federal laws as well as regional interstate and international agreements, including the Boundary Waters Treaty of 1909; and

281.343(4n)(d)7. 7. All other applicable criteria in this subsection have also been met.

281.343(4p) (4p) Water management and regulation; management and regulation of new or increased withdrawals and consumptive uses.

281.343(4p)(a) (a) Within 5 years of the effective date of this compact, each party shall create a program for the management and regulation of new or increased withdrawals and consumptive uses by adopting and implementing measures consistent with the decision-making standard. Each party, through a considered process, shall set and may modify threshold levels for the regulation of new or increased withdrawals in order to assure an effective and efficient water management program that will ensure that uses overall are reasonable, that withdrawals overall will not result in significant impacts to the waters and water dependent natural resources of the basin, determined on the basis of significant impacts to the physical, chemical, and biological integrity of source watersheds, and that all other objectives of the compact are achieved. Each party may determine the scope and thresholds of its program, including which new or increased withdrawals and consumptive uses will be subject to the program.

281.343(4p)(b) (b) Any party that fails to set threshold levels that comply with par. (a) any time before 10 years after the effective date of this compact shall apply a threshold level for management and regulation of all new or increased withdrawals of 100,000 gallons per day or greater average in any 90-day period.