Chapter 281

281.75(11)(b)4. 4. An award may not be issued for the reimbursement of costs of an alternative water supply incurred before the department confirmed that contamination existed.

281.75(11)(c) (c) Limits on awards; costs determined by rule. The department shall determine by rule the usual and customary costs of each item for which an award may be issued under sub. (7). The rule shall reflect the range of costs resulting from differences in costs of construction, labor, equipment and supplies throughout the state, various soil and bedrock conditions, sizes and depths of wells, types of well construction and other factors which may affect the costs. The department shall determine the amount of all awards according to the rules promulgated under this paragraph.

281.75(11)(d) (d) Limits on awards for contaminated wells; amount. Awards shall be issued subject to the following limitations on amount:

281.75(11)(d)1. 1. If the contamination can be remedied by reconstruction of the private water supply, construction of a new private water supply or connection to an existing public or private water supply, the department shall issue an award for the least expensive means of remedying the contamination.

281.75(11)(d)2. 2. If the contamination cannot be remedied by a new or reconstructed private water supply, the maximum award for connection to an existing public or private water supply is 150 percent of the cost of constructing a new private water supply.

281.75(11)(d)3. 3. An award for an alternate water supply is limited to the amount necessary to obtain water for a one-year period, except as provided under sub. (13).

281.75(11m) (11m) Abandonment of certain private water supplies. If the department determines that there is an improperly abandoned private water supply located on property owned or leased by a claimant with a contaminated private water supply that is eligible under sub. (11) (ae), the department may issue an award only if the claimant properly abandons the improperly abandoned private water supply.

281.75(12) (12) Reconstruction or replacement of wells. If the department determines that the claimant is entitled to compensation for reconstruction of a private water supply or construction of a new private water supply, the department may issue the award only if all of the following conditions are satisfied:

281.75(12)(a) (a) The well complies with casing depth and other construction requirements established by the department.

281.75(12)(b) (b) If the well is a drilled well, it is constructed by a well driller licensed under ch. 280 or, if the well is a sandpoint well, it is constructed by a well driller or pump installer licensed under ch. 280.

281.75(13) (13) Coordination of compensation and remedial action. If the secretary determines that the implementation of a response to groundwater contamination by a regulatory agency under s. 160.25 can be expected to remedy the contamination in a private water supply in 2 years or less, the secretary may order a delay in the issuance of an award for up to a 2-year period. If the secretary issues an order under this subsection, the department shall issue an award for an alternate water supply while the order is in effect or until the well is no longer contaminated, whichever is earlier. If, upon expiration of the order, the department determines that the private water supply is not contaminated, the department may not issue an award under this section.

281.75(14) (14) New claims.

281.75(14)(a) (a) New contamination. A claimant who receives an award for the purpose of constructing or reconstructing a private water supply or connection to a private water supply may submit a new claim if the contamination is from a new source and, if the previous award was for a new or reconstructed private water supply, the well was constructed properly.

281.75(14)(b) (b) Failure to eliminate contamination.

281.75(14)(b)1. 1. A claimant who receives an award for the purpose of constructing or reconstructing a private water supply or connection to a private water supply may submit a new claim if the contamination is not eliminated and, if the award was for a new or reconstructed private water supply, the well was constructed properly.

281.75(14)(b)2. 2. Only one additional claim may be submitted under this paragraph within 10 years after an award is made.

281.75(15) (15) Tolling of statute of limitations. Any law limiting the time for commencement of an action is tolled by the filing of a claim. The law limiting the time for commencement of the action is tolled for the period from the first filing of a claim until the department issues an award under this section. If a period of limitation is tolled by the filing of a claim, and the time remaining after issuance of the final award in which an action may be commenced is less than 30 days, the period within which the action may be commenced is extended to 30 days from the date of issuance of the final award.

281.75(16) (16) Relation to other actions.

281.75(16)(a) (a) The existence of the relief under this section is not a bar to any other statutory or common law remedy.

281.75(16)(b) (b) A person is not required to exhaust the remedy available under this section before commencing an action seeking any other statutory or common law remedy.

281.75(16)(c) (c) The findings and conclusions under this section are not admissible in any civil action.

281.75(16)(d) (d) The state is subrogated to the rights of a claimant who obtains an award under this section in an amount equal to the award. All moneys recovered under this paragraph shall be credited to the environmental fund for environmental management.

281.75(17) (17) Applicability.

281.75(17)(a) (a) A claim based on a contaminated private water supply may be submitted irrespective of the time when the contamination is or could have been discovered in the private water supply. A claim may be submitted for contamination which commenced before May 11, 1984, and continues at the time a claim is submitted under this section.

281.75(17)(b) (b) This section does not apply to contamination which is compensable under subch. II of ch. 107 or s. 293.65 (4) or 295.61 (8).

281.75(18) (18) Suspension or revocation of licenses. The department may suspend or revoke a license issued under ch. 280 if the department finds that the licensee falsified information submitted under this section. The department of safety and professional services may suspend or revoke the license of a plumber licensed under ch. 145 if the department of safety and professional services finds that the plumber falsified information submitted under this section.

281.75(19) (19) Penalties. Whoever does any of the following shall forfeit not less than $100 nor more than $1,000 and shall be required to repay an award issued to that person under this section:

281.75(19)(a) (a) Causes or exacerbates the contamination of a private water supply for the purpose of submitting a claim under this section; or

281.75(19)(b) (b) Submits a fraudulent claim under this section.

281.75 History History: 1983 a. 410; 1985 a. 22, 29; 1989 a. 31; 1991 a. 39; 1993 a. 413; 1995 a. 27 ss. 4208 to 4210, 9116 (5); 1995 a. 227 s. 401; Stats. 1995 s. 281.75; 1997 a. 27; 2001 a. 16; 2005 a. 123, 335; 2007 a. 20; 2009 a. 28; 2011 a. 7, 10, 32; 2013 a. 1; 2017 a. 69; 2021 a. 240.

281.75 Cross-reference Cross-reference: See also ch. NR 123, Wis. adm. code.

281.77 281.77 Damage to water supplies.

281.77(1) (1) In this section:

281.77(1)(a) (a) “Private water supply” means a well that is used as a water supply for humans or a well that is constructed by drilling and is used as a water supply for livestock, as defined in s. 95.80 (1) (b), or poultry.

281.77(1)(b) (b) “Regulated activity” means an activity for which the department may issue an order under chs. 285 or 289 to 299 or this chapter, if the activity is conducted in violation of chs. 285 or 289 to 299 or this chapter or in violation of licenses, permits or special orders issued or rules promulgated under chs. 285 or 289 to 299 or this chapter.

281.77(2) (2) 

281.77(2)(a) (a) Except as provided under par. (b), if the department finds that a regulated activity has caused a private water supply to become contaminated, polluted or unfit for consumption by humans, livestock or poultry, the department may conduct a hearing on the matter. The department shall conduct a hearing on the matter upon request of the owner or operator of the regulated activity. At the close of the hearing, or at any time if no hearing is held, the department may order the owner or operator of the regulated activity 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(2)(b) (b) If the department finds that a regulated activity caused a private water supply to become contaminated, polluted or unfit for consumption by humans, livestock or poultry, and if the regulated activity is an approved facility, as defined in s. 289.01 (3), the department may conduct a hearing under s. 292.31 (3) (f). If the damage to the private water supply is caused by an occurrence not anticipated in the plan of operation which poses a substantial hazard to public health or welfare, the department may expend moneys in the environmental fund that are available for environmental repair to treat the water to render it drinkable, or to repair or replace the private water supply, and to reimburse the town, village or city for the cost of providing water under sub. (4). If the damage to the private water supply is not caused by an occurrence not anticipated in the plan of operation, if the damage does not pose a substantial hazard to public health or welfare, or if moneys in the environmental fund that may be used for environmental repair are insufficient, the department may order the owner or operator of the regulated activity to treat the water to render it fit for consumption by humans, livestock and poultry, or to repair 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(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.