Chapter 281

281.346(4)(e)1.j. j. The proposal is approved by the Great Lakes council.

281.346(4)(e)2. 2. In determining whether to approve a proposal under this paragraph, the department shall give substantive consideration to whether the applicant provides sufficient scientifically based evidence that the existing water supply is derived from groundwater that is hydrologically interconnected to waters of the Great Lakes basin. The department may not use a lack of hydrological connection to the waters of the Great Lakes basin as a reason to disapprove a proposal.

281.346(4)(f) (f) Exception standard. A proposal meets the exception standard if all of the following apply:

281.346(4)(f)1. 1. The need for the proposed diversion cannot reasonably be avoided through the efficient use and conservation of existing water supplies as determined under par. (g).

281.346(4)(f)2. 2. The diversion is limited to quantities that are reasonable for the purposes for which the diversion is proposed.

281.346(4)(f)3. 3. An amount of water equal to the amount of water withdrawn from the Great Lakes basin will be returned to the source watershed, less an allowance for consumptive use.

281.346(4)(f)3m. 3m. The place at which the water is returned to the source watershed is as close as practicable to the place at which the water is withdrawn, unless the applicant demonstrates that returning the water at that place is one of the following:

281.346(4)(f)3m.a. a. Not economically feasible.

281.346(4)(f)3m.b. b. Not environmentally sound.

281.346(4)(f)3m.c. c. Not in the interest of public health.

281.346(4)(f)4. 4. No water from outside the Great Lakes basin will be returned to the source watershed unless all of the following apply:

281.346(4)(f)4.a. a. The returned water is from a water supply or wastewater treatment system that combines water from inside and outside the Great Lakes basin.

281.346(4)(f)4.b. b. The returned water will be treated to meet applicable permit requirements under s. 283.31 and to prevent the introduction of invasive species into the Great Lakes basin and the department has approved the permit under s. 283.31.

281.346(4)(f)4.c. c. If the water is returned through a structure on the bed of a navigable water, the structure is designed and will be operated to meet the applicable permit requirements under s. 30.12 and the department has approved the permit under s. 30.12.

281.346(4)(f)4m. 4m. If water will be returned to the source watershed through a stream tributary to one of the Great Lakes, the physical, chemical, and biological integrity of the receiving water under subd. 3. will be protected and sustained as required under ss. 30.12, 281.15, and 283.31, considering the state of the receiving water before the proposal is implemented and considering both low and high flow conditions and potential adverse impacts due to changes in temperature and nutrient loadings.

281.346(4)(f)5. 5. The diversion will result in no significant adverse individual impacts or cumulative impacts to the quantity or quality of the waters of the Great Lakes basin or to water dependent natural resources, including cumulative impacts that might result due to any precedent-setting aspects of the proposed diversion, based upon a determination that the proposed diversion will not have any significant adverse impacts on the sustainable management of the waters of the Great Lakes basin.

281.346(4)(f)6. 6. The applicant commits to implementing the applicable water conservation measures under sub. (8) (d) that are environmentally sound and economically feasible for the applicant.

281.346(4)(f)7. 7. The diversion 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(4)(g) (g) Conservation and efficient use of existing water supplies. The department shall promulgate rules specifying the requirements for an applicant for a new or increased diversion subject to par. (f) to demonstrate the efficient use and conservation of existing water supplies for the purposes of pars. (d) 2. b. and 3. b., (e) 1. d., and (f) 1., including requiring the applicant to document the water conservation planning and analysis used to identify the water conservation and efficiency measures that the applicant determined were feasible.

281.346(4)(i) (i) Diversion amount. In an approval issued under this subsection or a modification granted under this subsection to increase the amount of a diversion, the department shall specify a diversion amount equal to the quantity of water that is reasonable for the purposes for which the diversion is proposed.

281.346(4e) (4e) Determining baselines for preexisting withdrawals.

281.346(4e)(a) (a) Before issuing automatic notice of coverage under a general permit under sub. (4s) or an automatic individual permit under sub. (5) (c) for a withdrawal from the Great Lakes basin for which the department is required to issue automatic notice of coverage or an automatic individual permit, the department shall determine a baseline for the withdrawal under this subsection.

281.346(4e)(b) (b)

281.346(4e)(b)1. 1. Except as provided in subds. 2. and 3e. and par. (f), the department shall estimate the baseline for a withdrawal based on the maximum hydraulic capacity of the most restrictive component in the water supply system used for the withdrawal as of December 8, 2008, based on information available to the department.

281.346(4e)(b)2. 2. Except as provided in subd. 3e., if the department has issued an approval under s. 30.12, 30.18, 281.34, or 281.41, or s. 281.17, 2001 stats., that is required for a withdrawal and the approval contains a limit on the amount of water that may be withdrawn, the department shall provide an estimate of the baseline equal to the limit in the approval as of December 8, 2008.

281.346(4e)(b)3e. 3e. If water is withdrawn through more than one water supply system to serve a facility, the department shall determine the amount under subd. 1. for each of the water supply systems to which subd. 2. does not apply and shall determine the amount under subd. 2. for each of the water supply systems to which subd. 2. applies and shall provide an estimate of the baseline that is equal to the sum of the amounts determined for each of the water supply systems.

281.346(4e)(c) (c) The department shall provide the estimate under par. (b) for a withdrawal to the person making the withdrawal.

281.346(4e)(d) (d) After receiving an estimate under par. (c), a person making a withdrawal may provide the department with information relating to any of the following:

281.346(4e)(d)1. 1. The components of the water supply system used for the withdrawal as of December 8, 2008.

281.346(4e)(d)2. 2. Seasonal variations in the amount of water supplied by the water supply system.

281.346(4e)(d)3. 3. Plans for expanding the capacity of the water supply system submitted to the department before December 8, 2008.

281.346(4e)(d)4. 4. Amounts withdrawn during the 5 years before the year in which the person submits the information.

281.346(4e)(d)5. 5. Successful water conservation efforts by persons using the water that is withdrawn.

281.346(4e)(d)6. 6. Water loss from consumptive uses of similar types of users compared to the water loss from consumptive use of persons using the water that is withdrawn.

281.346(4e)(d)7. 7. Other relevant information.

281.346(4e)(e) (e) Except as provided in par. (f), the department shall determine the baseline for a withdrawal based on the estimate under par. (b) and the department’s evaluation of any information provided under par. (d). The department may not consider information provided by any other person.

281.346(4e)(f) (f) For a public water supply system that, on June 11, 2008, has approval under s. 281.41 to provide water from the Great Lakes basin for public water supply purposes outside of the Great Lakes basin and approval under s. 283.31 to return the associated wastewater to the Great Lakes basin, the department shall determine the baseline to be the amount of water necessary to provide water for public water supply purposes in the service territory specified in the sewer service area provisions of the areawide water quality management plan under s. 283.83 approved by the department before December 31, 2007, based on the population and related service projections in those provisions.

281.346(4e)(g) (g) The department’s determination of a baseline under par. (e) or (f) is not subject to administrative review under ch. 227 except at the request of the person making the withdrawal.

281.346(4e)(h) (h) If 2 or more public water supply systems merge after the department determines their baselines under par. (e) and before the department issues the initial individual permits under sub. (5) (c) for the systems, the baseline for the new system is the sum of the amounts determined under par. (e) for the individual systems.

281.346(4g) (4g) Determining withdrawal amounts for preexisting withdrawals.

281.346(4g)(a) (a) Before issuing automatic notice of coverage under a general permit under sub. (4s) or an automatic individual permit under sub. (5) (c) for a withdrawal from the Great Lakes basin for which the department is required to issue automatic notice of coverage or an automatic individual permit, the department shall determine a withdrawal amount for the withdrawal under this subsection.

281.346(4g)(b) (b) Except as provided in par. (c), the withdrawal amount for a withdrawal under this subsection is the same as the baseline determined under sub. (4e).

281.346(4g)(c) (c)

281.346(4g)(c)1. 1. Except as provided in subd. 3., if a person making a withdrawal has increased the amount of the withdrawal over the baseline before the department issues an automatic notice of coverage under a general permit under sub. (4s) or an automatic individual permit under sub. (5) (c), the department shall specify a withdrawal amount that is, except as provided in subd. 2., equal to the smallest of the following amounts:

281.346(4g)(c)1.a. a. The maximum hydraulic capacity of the most restrictive component of the water supply system used for the withdrawal for which the person has approval under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., or, if an approval under one of those provisions is not required for the most restrictive component of the water supply system, the maximum hydraulic capacity of the most restrictive component in the water supply system used for the withdrawal.

281.346(4g)(c)1.b. b. If an approval under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., specifies a maximum amount of water that may be withdrawn, that amount.

281.346(4g)(c)2. 2. If water is withdrawn through more than one water supply system to serve a facility, the department shall determine the smallest amount under subd. 1. a. or b. for each of the water supply systems and shall specify a withdrawal amount that is equal to the sum of the amounts determined for each of the water supply systems.

281.346(4g)(c)3. 3. 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, the department shall specify a withdrawal amount that is equal to the withdrawal amount in the water supply service area plan.

281.346(4m) (4m) Water use permits required in the Great Lakes basin. Beginning on December 8, 2011, a person may not make a withdrawal from the Great Lakes basin that averages 100,000 gallons per day or more in any 30-day period unless the withdrawal is covered under a general permit issued under sub. (4s), an individual permit issued under sub. (5), or an interim approval under s. 281.344 (5m), except as provided in sub. (4s) (bm).

281.346(4s) (4s) General water use permits for Great Lakes basin.

281.346(4s)(a) (a) Department to issue. The department shall issue one or more general permits to cover withdrawals from the Great Lakes basin that average 100,000 gallons per day or more in any 30-day period but that do not equal at least 1,000,000 gallons per day for any 30 consecutive days. The department shall include all of the following in a general permit:

281.346(4s)(a)1. 1. Reference to the database under par. (i).

281.346(4s)(a)2. 2. Requirements for estimating the amount withdrawn, monitoring the withdrawal, if necessary, and reporting the results of the estimating and monitoring, as provided in rules promulgated by the department.

281.346(4s)(a)3. 3. Requirements for water conservation, as provided in rules promulgated by the department under sub. (8) (d).

281.346(4s)(am) (am) Term of general permit. The term of a general permit issued under par. (a) is 25 years.

281.346(4s)(b) (b) General requirement. Beginning on December 8, 2011, a person who does not hold an individual permit under sub. (5) may not make a withdrawal that averages 100,000 gallons per day or more in any 30-day period, but that does not equal at least 1,000,000 gallons per day for any 30 consecutive days, unless the withdrawal is covered under a general permit issued under this subsection, except as provided in par. (bm). A person to whom the department has issued a notice of coverage under a general permit shall comply with the general permit.

281.346(4s)(bm) (bm) Waiver. The department may waive the requirement to obtain coverage under a general permit for a person making a withdrawal that is covered by a permit under s. 30.18 (2) (a).

281.346(4s)(c) (c) Automatic notice of coverage for preexisting withdrawals. The department shall automatically issue a notice of coverage under a general permit to a person who makes a withdrawal that is covered by an interim approval under s. 281.344 (5m) and that averages 100,000 gallons per day or more in any 30-day period but does not equal at least 1,000,000 gallons per day for any 30 consecutive days, or who makes a withdrawal that is not covered by an interim approval and that before December 8, 2008, averaged 100,000 gallons per day or more in any 30-day period but that does not equal at least 1,000,000 gallons per day for any 30 consecutive days. If necessary, the department may request additional information before issuing a notice under this paragraph. The department shall issue a notice under this paragraph no later than December 8, 2011. In the notice provided under this paragraph for a withdrawal, the department shall specify a baseline equal to the baseline determined under sub. (4e) for the withdrawal and a withdrawal amount equal to the withdrawal amount determined under sub. (4g) for the withdrawal.

281.346(4s)(d) (d) Coverage under general permit for withdrawals not entitled to automatic notice of coverage.

281.346(4s)(d)1. 1. A person who proposes to begin a withdrawal from the Great Lakes basin after December 7, 2011, that will average 100,000 gallons per day or more in any 30-day period, or to increase an existing withdrawal so that it will average 100,000 gallons per day or more in any 30-day period, but who does not propose to withdraw at least 1,000,000 gallons per day for any 30 consecutive days, shall apply to the department for coverage under a general permit, unless the person applies for an individual permit under sub. (5). In the application, the person shall provide the information required by the department by rule.

281.346(4s)(d)1m. 1m. A person who makes a withdrawal from the Great Lakes basin that, before December 8, 2011, averages at least 100,000 gallons per day in any 30-day period, but does not equal 1,000,000 gallons per day for any 30 consecutive days and who is not entitled to automatic issuance of notice of coverage under par. (c) shall apply to the department for coverage under a general permit, unless the person applies for an individual permit under sub. (5). In the application, the person shall provide the information required by the department by rule.

281.346(4s)(d)2. 2. After receiving an application under subd. 1., the department shall, within the time limit established by the department by rule, determine whether the withdrawal qualifies for coverage under a general permit or notify the applicant of any additional information needed to determine whether the withdrawal qualifies for coverage under a general permit.

281.346(4s)(d)3. 3. Except as provided in subd. 3m., if the department determines that a withdrawal qualifies for coverage under a general permit and the department has issued any approvals that are required for the withdrawal under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., the department shall issue a notice of coverage. In the notice, the department shall specify a withdrawal amount that is, except as provided in subd. 3e., equal to the smallest of the following amounts:

281.346(4s)(d)3.a. a. The maximum hydraulic capacity of the most restrictive component of the water supply system used for the withdrawal for which the person has approval under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., or, if an approval under one of those provisions is not required for the most restrictive component of the water supply system, the maximum hydraulic capacity of the most restrictive component that the person proposes to use in the water supply system.

281.346(4s)(d)3.b. b. If an approval under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., specifies a maximum amount of water that may be withdrawn, that amount.

281.346(4s)(d)3e. 3e. If water is withdrawn through more than one water supply system to serve a facility, the department shall determine the smallest amount under subd. 3. a. or b. for each of the water supply systems and shall specify a withdrawal amount that is equal to the sum of the amounts determined for each of the water supply systems.

281.346(4s)(d)3m. 3m.

281.346(4s)(d)3m.a. a. The department may not approve an application under subd. 1. or 1m. for a withdrawal for the purpose of providing water to a public water supply system that serves a population of more than 10,000 unless the withdrawal is covered by an approved water supply service area plan under s. 281.348.

281.346(4s)(d)3m.b. b. The department may not approve an application under subd. 1. or 1m. 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(4s)(d)3m.c. c. If the department approves an application under subd. 1. or 1m. 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, the department shall issue a notice of coverage. In the notice of coverage the department shall specify a withdrawal amount that is equal to the withdrawal amount in the water supply service area plan.

281.346(4s)(d)4. 4. If the department determines that a withdrawal does not qualify for coverage under a general permit, the department shall notify the applicant in writing of the reason for that determination.

281.346(4s)(dm) (dm) Requiring individual permit. The department may require a person who is making or proposes to make a withdrawal that averages 100,000 gallons per day or more in any 30-day period, but that does not equal at least 1,000,000 gallons per day for any 30 consecutive days, to obtain an individual permit under sub. (5) if the withdrawal is located in a groundwater protection area, as defined in s. 281.34 (1) (am), or a groundwater management area designated under s. 281.34 (9).

281.346(4s)(e) (e) Increase in withdrawal amount.

281.346(4s)(e)1. 1. If a person making a withdrawal that is covered under a general permit issued under this subsection or s. 281.344 (4s) proposes to increase the amount of the withdrawal over the withdrawal amount specified in the database under par. (i) for the withdrawal, but does not propose to withdraw at least 1,000,000 gallons per day for any 30 consecutive days, the person shall apply to the department for a modification of the withdrawal amount.

281.346(4s)(e)3. 3. Except as provided in subd. 3m., if the department has issued any approvals that are required for modifying the withdrawal under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., the department shall modify the withdrawal amount to an amount that is, except as provided in subd. 3e., equal to the smallest of the following amounts:

281.346(4s)(e)3.a. a. The maximum hydraulic capacity of the most restrictive component of the water supply system used for the withdrawal for which the person has approval under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., or, if an approval under one of those provisions is not required for the most restrictive component of the water supply system, the maximum hydraulic capacity of the most restrictive component that the person proposes to use in the water supply system.

281.346(4s)(e)3.b. b. If an approval under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., specifies a maximum amount of water that may be withdrawn, that amount.

281.346(4s)(e)3e. 3e. If water is withdrawn through more than one water supply system to serve a facility, the department shall determine the smallest amount under subd. 3. a. or b. for each of the water supply systems and shall specify a withdrawal amount that is equal to the sum of the amounts determined for each of the water supply systems.

281.346(4s)(e)3m. 3m.

281.346(4s)(e)3m.a. a. The department may not approve an application under subd. 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 unless the withdrawal is covered by an approved water supply service area plan under s. 281.348.

281.346(4s)(e)3m.b. b. The department may not approve an application under subd. 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(4s)(e)3m.c. c. If the department approves an application under subd. 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, the department shall issue a notice of coverage. In the notice of coverage the department shall specify a withdrawal amount that is equal to the withdrawal amount in the water supply service area plan.

281.346(4s)(f) (f) Term of coverage. Coverage under a general permit ends on the date that the term of the general permit under par. (am) ends.

281.346(4s)(g) (g) Redetermination. A person to whom the department has issued a notice of coverage under a general permit issued under this subsection or s. 281.344 (4s) shall apply to the department for redetermination of coverage under a new general permit issued under this subsection at least 180 days before the end of the term of the current general permit if the person intends to continue to withdraw from the Great Lakes basin an average of 100,000 gallons per day or more in any 30-day period but does not intend to withdraw at least 1,000,000 gallons per day for any 30 consecutive days. If the person is in substantial compliance with the current general permit and the withdrawal qualifies for coverage under the new general permit, the department shall issue a notice of coverage under the new general permit.

281.346(4s)(h) (h) Suspension and revocation. After an opportunity for a hearing, the department may suspend or revoke coverage under a general permit issued under this subsection or s. 281.344 (4s) for cause, including obtaining coverage under the permit by misrepresentation or failure to disclose material facts or substantially violating the terms of the permit.

281.346(4s)(i) (i) Database. The department shall maintain a database of the withdrawal amounts for all withdrawals that are covered under general permits issued under this subsection. Until December 8, 2021, the department shall include in the database the baselines for all withdrawals that are covered under general permits issued under this subsection.

281.346(5) (5) Individual water use permits for Great Lakes basin.

281.346(5)(a) (a) Requirement. Beginning on December 8, 2011, a person may not make a withdrawal from the Great Lakes basin that equals at least 1,000,000 gallons per day for any 30 consecutive days unless the withdrawal is covered by an individual permit issued under this subsection. A person to whom the department has issued an individual permit shall comply with the individual permit.

281.346(5)(b) (b) Content of individual permits. The department shall include all of the following in an individual permit: