281.344 Water conservation, reporting, and supply regulation; when compact is not in effect.

WI Stat § 281.344 (2019) (N/A)

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(1) Definitions. In this section:

(d) “Community within a straddling county" means any city, village, or town that is not a straddling community and that is located outside the Great Lakes basin but wholly within a county that lies partly within the Great Lakes basin.

(dm) “Compact" means the Great Lakes — St. Lawrence River Basin Water Resources Compact under s. 281.343.

(dr) “Compact's effective date" means the effective date of the compact under s. 281.343 (9) (d).

(e) “Consumptive use" means a use of water that results in the loss of or failure to return some or all of the water to the basin from which the water is withdrawn due to evaporation, incorporation into products, or other processes.

(g) “Cumulative impacts" means the impacts on the Great Lakes basin ecosystem that result from incremental effects of all aspects of a withdrawal, interbasin transfer, or consumptive use in addition to other past, present, and reasonably foreseeable future withdrawals, interbasin transfers, and consumptive uses regardless of who undertakes the other withdrawals, interbasin transfers, and consumptive uses, including individually minor but collectively significant withdrawals, interbasin transfers, and consumptive uses taking place over a period of time.

(i) “Environmentally sound and economically feasible water conservation measures" means those measures, methods, or technologies for efficient water use and for reducing water loss and waste or for reducing the amount of a withdrawal, consumptive use, or interbasin transfer that are, taking into account environmental impact, the age and nature of equipment and facilities involved, the processes employed, the energy impacts, and other appropriate factors, all of the following:

1. Environmentally sound.

2. Reflective of best practices applicable to the water use sector.

3. Technically feasible and available.

4. Economically feasible and cost-effective based on an analysis that considers direct and avoided economic and environmental costs.

(j) “Facility" means an operating plant or establishment providing electricity to the public or carrying on any manufacturing activity, trade, or business on one site, including similar plants or establishments under common ownership or control located on contiguous properties.

(je) “Great Lakes basin" means the watershed of the Great Lakes and the St. Lawrence River upstream from Trois-Rivieres, Quebec.

(ji) “Great Lakes basin ecosystem" means the interacting components of air, land, water, and living organisms, including humans, within the Great Lakes basin.

(k) “Interbasin transfer" means a transfer of water from the Great Lakes basin into a watershed outside of the Great Lakes basin or from the watershed of one of the Great Lakes into that of another, except that “interbasin transfer" does not include any of the following:

1. The transfer of a product produced in the Great Lakes basin or in the watershed of one of the Great Lakes, using waters of the Great Lakes basin, out of the Great Lakes basin or out of that watershed.

2. The transmission of water within a line that extends outside the Great Lakes basin as it conveys water from one point to another within the Great Lakes basin if no water is used outside the Great Lakes basin.

3. The transfer of bottled water from the Great Lakes basin in containers of 5.7 gallons or less.

(km) “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.

(o) “Product" means something produced by human or mechanical effort or through agricultural processes and used in manufacturing, commercial, or other processes or intended for intermediate or ultimate consumers, subject to all of the following:

1. Water used as part of the packaging of a product is part of the product.

2. Other than water used as part of the packaging of a product, water that is used primarily to transport materials in or out of the Great Lakes basin is not a product or part of a product.

3. Except as provided in subd. 1., water that is transferred as part of a public or private supply is not a product or part of a product.

4. Water in its natural state, such as in lakes, rivers, reservoirs, aquifers, or water basins, is not a product.

(pm) “Public water supply" means water distributed to the public through a physically connected system of treatment, storage, and distribution facilities that serve a group of largely residential customers and that may also serve industrial, commercial, and other institutional customers.

(ps) “Reasonable water supply alternative" means a water supply alternative that is similar in cost to, and as environmentally sustainable and protective of public health as, the proposed new or increased interbasin transfer and that does not have greater adverse environmental impacts than the proposed new or increased interbasin transfer.

(q) “Regional body" means the body consisting of the governors of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin and the premiers of Ontario and Quebec, Canada, or their designees, as established by the Great Lakes — St. Lawrence River Basin Sustainable Water Resources Agreement.

(r) “Source watershed" means the watershed from which a withdrawal originates. If water is withdrawn directly from a Great Lake or from the St. Lawrence River, then the source watershed is the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively. If water is withdrawn from the watershed of a stream that is a direct tributary to a Great Lake or a direct tributary to the St. Lawrence River, then the source watershed is the watershed of that Great Lake or the watershed of the St. Lawrence River, respectively.

(t) “Straddling community" means any city, village, or town that is partly within the Great Lakes basin or partly within the watersheds of 2 of the Great Lakes and that is wholly within any county that lies partly or completely within the Great Lakes basin.

(tm) “Straddling county" means a county that lies partly within the Great Lakes basin.

(w) “Water dependent natural resources" means the interacting components of land, water, and living organisms affected by the waters of the Great Lakes basin.

(wm) “Water loss" means the amount of water that is withheld from or not returned to the basin from which it is withdrawn as a result of an interbasin transfer or consumptive use or both.

(wp) “Water supply system," when not preceded by “public," means one of the following:

1. Except as provided in subd. 2., the equipment handling water from the point of intake of the water to the first point at which the water is used.

2. For a system for providing a public water supply, the equipment from the point of intake of the water to the first point at which the water is distributed.

(wr) “Water utility" means a public utility, as defined in s. 196.01 (5), that furnishes water.

(x) “Waters of the Great Lakes basin" means the Great Lakes and all streams, rivers, lakes, connecting channels, and other bodies of water, including tributary groundwater, within the Great Lakes basin.

(y) “Withdraw" means to take water from surface water or groundwater.

(z) “Withdrawal" means the taking of water from surface water or groundwater, including the taking of surface water or groundwater for the purpose of bottling the water.

(zm) “Without adequate supplies of potable water" means without a water supply that is economically and environmentally sustainable in the long term to meet reasonable demands for a water supply in the quantity and quality that complies with applicable drinking water standards, is protective of public health, is available at a reasonable cost, and does not have adverse environmental impacts greater than those likely to result from the proposed new or increased interbasin transfer.

(2) Determinations concerning applicability of requirements.

(a) Use of surface water divide. For the purposes of this section, the surface water divide is used to determine whether a withdrawal or transfer of surface water or groundwater is from the Great Lakes basin.

(b) Transfers and withdrawals from more than one source. For the purposes of this section, the interbasin transfer or withdrawal of water from more than one source within the Great Lakes basin to supply a single facility or public water supply system is considered one interbasin transfer or withdrawal.

(d) County boundaries. For the purposes of sub. (1) (d), (t), and (tm), a county's boundaries as of December 13, 2005, shall be used to determine whether a county lies partly within the Great Lakes basin.

(e) Public trust doctrine. Nothing in this section may be interpreted to change the application of the public trust doctrine under article IX, section 1, of the Wisconsin Constitution or to create any new public trust rights.

(f) Water resources protection act.

1. In this paragraph, “ historic" means made before June 11, 2008.

2. The department may not change its historic interpretation or application of 42 USC 1962d-20 (d) to a public water supply for a community in this state until that provision is amended. The department shall evaluate all applications under sub. (4) (b) using the requirements in sub. (4) and shall apply those requirements uniformly.

(3) Statewide registration and reporting.

(a)

1. Any person who, on June 1, 2011, has a water supply system with the capacity to make a withdrawal from the waters of the state averaging 100,000 gallons per day or more in any 30-day period or is making any interbasin transfer shall register the withdrawal or interbasin transfer with the department by the deadline specified by the department by rule. A person may register a withdrawal or interbasin transfer before June 1, 2011.

2. Any person who, after June 1, 2011, proposes to begin a withdrawal from the waters of the state using a water supply system that will have the capacity to withdraw an average of 100,000 gallons per day or more in any 30-day period, to increase the capacity of a water supply system that existed on June 1, 2011, so that it will have the capacity to withdraw an average of 100,000 gallons per day or more in any 30-day period, or to begin an interbasin transfer shall register the withdrawal or interbasin transfer with the department.

(b) A person to whom par. (a) applies shall register on a form prescribed by the department and provide all of the following information:

1. The name and address of the registrant and the date of registration.

2. The locations and sources of the withdrawal or interbasin transfer.

3. The daily capacity of the withdrawal or interbasin transfer and the daily capacity to withdraw or transfer from each source.

4. An estimate of the volume of the withdrawal or interbasin transfer in terms of gallons per day average in any 30-day period.

4m. For a withdrawal from the Great Lakes basin that averages 100,000 gallons per day or more in any 30 day period, an estimate of the maximum hydraulic capacity of the most restrictive component in each water supply system used for the withdrawal.

5. The uses made of the water.

6. The places at which the water is used.

7. The places at which any of the water is discharged.

8. Whether the water use is continuous or intermittent.

9. Whether the person holds a permit under s. 283.31.

10. Other information required by the department by rule.

(cm) The department may consider domestic security concerns when determining whether information regarding locations of withdrawals and interbasin transfers contained in the registry under par. (c) may be released to the public.

(e)

1. Each person who makes a withdrawal from the waters of the state that averages 100,000 gallons per day or more in any 30-day period or transfers from the Great Lakes basin any amount and who has registered the withdrawal or interbasin transfer under par. (a) shall annually report to the department the monthly volumes of withdrawal, whether the person ever withdraws at least 1,000,000 gallons per day for 30 consecutive days, and, if applicable, the volumes of interbasin transfer and, subject to par. (em), water loss from consumptive use.

2. In addition to the information required under subd. 1., the department may, by rule, create different reporting frequencies or require additional information from a person who registers a withdrawal, or interbasin transfer under par. (a) based upon the type or category of water use.

(em) If a person to whom par. (e) 1. applies provides any of the water that the person withdraws to a public water supply system, the person who operates the public water supply system, rather than the person who withdraws the water, shall annually report to the department the volume of water loss from the consumptive use of the water provided to the public water supply system.

(f) The department may require additional information under par. (b) 10. or (e) 2. only if the information is necessary to effectuate this section.

(3e) Determining initial interbasin transfer amounts.

(a) Before issuing an automatic approval under sub. (3m) (a) for an interbasin transfer to a person operating a public water supply system, the department shall determine the initial interbasin transfer amount for the interbasin transfer under par. (b).

(b) The department shall determine the initial interbasin transfer amount for a public water supply system to be the amount of water necessary to provide water for public water supply purposes in the area in at least part of which the public water supply system delivers water to customers before the compact's effective date that is all of the following:

1. Outside of the Great Lakes basin.

2. Within a sewer service territory that provides for return of wastewater to the Great Lakes basin and that is specified in the sewer service area provisions of an areawide water quality management plan under s. 283.83 approved by the department before December 31, 2007.

(c) The department shall use the population and related service projections in the sewer service area provisions described in par. (b) 2. in making the determination under par. (b).

(d) Before issuing an automatic approval under sub. (3m) (b) for an interbasin transfer to a person who does not operate a public water supply system, the department shall determine the initial interbasin transfer amount for the interbasin transfer. The department shall determine the interbasin transfer amount using the process and standards that it uses under sub. (4e) to determine an initial withdrawal amount.

(3m) Automatic approval for existing interbasin transfers.

(a) Before the compact's effective date, the department shall automatically issue an approval for an interbasin transfer that begins before the compact's effective date, to a person who operates a public water supply system that receives water from the interbasin transfer and that delivers water to customers in an area that is outside of the Great Lakes basin and that is within a sewer service territory that provides for return of wastewater to the Great Lakes basin as specified in the sewer service area provisions of an areawide water quality management plan under s. 283.83 approved by the department before December 31, 2007. The department may not issue an automatic approval under this subsection before the interbasin transfer begins. In the automatic approval, the department shall specify an interbasin transfer amount equal to the amount determined under sub. (3e) (b) and an interbasin transfer area that is the area described in sub. (3e) (b).

(b) Before the compact's effective date, the department shall automatically issue an approval for an interbasin transfer that begins before June 11, 2008, and that is not for public water supply purposes to the person who makes the interbasin transfer. In the automatic approval, the department shall specify an interbasin transfer amount equal to the amount determined under sub. (3e) (d).

(4) New or increased interbasin transfers.

(a) Prohibition. Beginning on June 11, 2008, all of the following apply:

1. No person may begin an interbasin transfer, other than an interbasin transfer for which the department is required to issue an automatic permit under sub. (3m) (a), unless the interbasin transfer is covered by an approval under par. (c), (d), or (e).

2. No person may increase an interbasin transfer over the interbasin transfer amount in an approval issued under this subsection unless the department modifies the approval under par. (c), (d), or (e) to increase the interbasin transfer amount.

3. No person may increase an interbasin transfer over the interbasin transfer amount in an approval issued under sub. (3m) (a) or expand the interbasin transfer area beyond the area specified in an approval under sub. (3m) (a) unless the department modifies the approval under par. (c), (d), or (e) to increase the interbasin transfer amount or to expand the interbasin transfer area.

4. No person may increase an interbasin transfer over the interbasin transfer amount in an approval issued under sub. (3m) (b).

(b) Application.

1. A person who proposes to begin an interbasin transfer, increase the amount of an interbasin transfer, or expand the interbasin transfer area of an interbasin transfer covered by an approval issued under sub. (3m) (a) shall apply to the department for approval.

2. A person may apply under subd. 1. for approval of a new, increased, or expanded interbasin transfer under par. (c) or (e) only if the person operates a public water supply system that receives or would receive water from the new, increased, or expanded interbasin transfer.

3. Operators of 2 or more public water supply systems may submit a joint application under subd. 1. for a new, increased, or expanded interbasin transfer under par. (c) or (e).

4. A person who applies under subd. 1. shall provide information about the potential impacts of the interbasin transfer on the waters of the Great Lakes basin and water dependent natural resources and any other information required by the department by rule.

4m. If a person who applies under subd. 1. will not directly withdraw the water proposed to be transferred, the person shall identify any entities that may withdraw the water and provide evidence of support from each of those entities in the form of a letter or resolution.

4p. If the person who applies under subd. 1. will not directly return the water to the Great Lakes basin, the person shall identify any entities that may return the water and provide evidence of support from each of those entities in the form of a letter or resolution.

4s. If the proposal for which a person applies under subd. 1. is subject to the exception standard under par. (f), the person shall provide documentation of how the physical, chemical, and biological integrity of the receiving water under par. (f) 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 potential adverse impacts due to changes in temperature and nutrient loadings. If the receiving water is a surface water body that is tributary to one of the Great Lakes, the person shall include a description of the flow of the receiving water before the proposal is implemented, considering both low and high flow conditions.

5. If the proposal for which a person applies under subd. 1. is subject to the exception standard under par. (f), the person shall provide an assessment of the individual impacts of the proposal for the purposes of par. (f) 5. The person may also include a cumulative impact assessment.

(bg) Determinations.

1. The department shall determine whether a proposal under par. (b) is subject to par. (c) or (e) as follows:

a. If the proposal is to provide a public water supply within a single city, village, or town, the proposal is subject to par. (c) or (e) based on the boundaries of that city, village, or town.

b. If the proposal is to provide a public water supply within more than one city, village, or town, any portion of the proposal that provides a public water supply within a straddling community is subject to par. (c) and any portion of the proposal that provides a public water supply within a community described in par. (e) 1. (intro.) is subject to par. (e).

2. For the purposes of applying the requirements in pars. (c), (e), and (f) to a proposal under par. (b), the department shall use, as appropriate, the planned service area of the public water supply system receiving water under the proposal. The planned service area is the service area of the system at the end of any planning period authorized by the department in the approved water supply service area plan under s. 281.348 that covers the public water supply system.

(c) Straddling communities. The department may approve a proposal under par. (b) to begin an interbasin transfer, increase an interbasin transfer, or expand an interbasin transfer area, to an area within a straddling community but outside the Great Lakes basin or outside the source watershed if the water transferred will be used solely for public water supply purposes in the straddling community and all of the following apply:

1. An amount of water equal to the amount of water withdrawn from the Great Lakes basin, less an allowance for consumptive use, will be returned to the source watershed.

2. No surface water or groundwater from outside the source watershed will be returned to the source watershed unless all of the following apply:

a. The returned water will be from a water supply or wastewater treatment system that combines water from inside and outside the Great Lakes basin.

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.

c. The proposal maximizes the amount of water withdrawn from the Great Lakes basin that will be returned to the source watershed and minimizes the amount of water from outside the Great Lakes basin that will be returned to the source watershed.

2m. The proposal is consistent with an approved water supply service area plan under s. 281.348 that covers the public water supply system.

3. If the proposal would result from a new withdrawal or an increase in a withdrawal that would average 100,000 gallons or more per day in any 90-day period, the proposal meets the exception standard under par. (f).

(d) Intrabasin transfer.

1. The department may approve a proposal under par. (b) for a new intrabasin transfer or an increase in an intrabasin transfer to which par. (c) does not apply that would average less than 100,000 gallons per day in every 90-day period, if the proposal meets the applicable requirements under s. 30.18, 281.34, or 281.41 or, if those sections do not apply, any requirements specified by the department by rule and, if the water will be used for public water supply purposes, the proposal is consistent with an approved water supply service area plan under s. 281.348 that covers the public water supply system.

2. The department may approve a proposal under par. (b) for a new intrabasin transfer or an increase in or expansion of an intrabasin transfer to which par. (c) does not apply that would average more than 100,000 gallons per day in any 90-day period with a new water loss or an increase in water loss that would average less than 5,000,000 gallons per day in every 90-day period, if all of the following apply:

a. The proposal meets the exception standard under par. (f), except that the water may be returned to a watershed within the Great Lakes basin other than the source watershed and par. (f) 3m. does not apply.

b. The applicant demonstrates that there is no feasible, cost-effective, and environmentally sound water supply alternative within the watershed to which the water will be transferred, including conservation of existing water supplies as determined under par. (g).

c. If the water will be used for public water supply purposes, the proposal is consistent with an approved water supply service area plan under s. 281.348 that covers the public water supply system.

3. The department may approve a proposal under par. (b) for a new intrabasin transfer or an increase in an intrabasin transfer to which par. (c) does not apply with a new water loss or an increase in water loss that would average 5,000,000 gallons per day or more in any 90-day period, if all of the following apply:

a. The proposal meets the exception standard under par. (f).

c. If the water will be used for public water supply purposes, the proposal is consistent with an approved water supply service area plan under s. 281.348 that covers the public water supply system.

(e) Straddling counties.

1. The department may approve a proposal under par. (b) for a new interbasin transfer or an increase in an interbasin transfer if the water transferred will be used solely for public water supply purposes in a community within a straddling county or, if a community is partly within a straddling county and partly within a county that lies entirely outside the Great Lakes basin, the water transferred will be used solely for public water supply purposes in the portion of the community that is within the straddling county and all of the following apply:

a. The community is without adequate supplies of potable water.

b. The proposal meets the exception standard under par. (f).

d. There is no reasonable water supply alternative within the watershed in which the community is located, including conservation of existing water supplies as determined under par. (g).

e. The proposal will not endanger the integrity of the Great Lakes basin ecosystem based upon a determination that the proposal will have no significant adverse impact on the Great Lakes basin ecosystem.

em. The proposal is consistent with an approved water supply service area plan under s. 281.348 that covers the public water supply system.

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.

(f) Exception standard. A proposal to which par. (fm) does not apply meets the exception standard if subds. 1. to 7. apply to the proposal. A proposal to which par. (fm) applies meets the exception standard if the department considers, under par. (fm), whether:

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

2. The interbasin transfer is limited to quantities that are reasonable for the purposes for which the interbasin transfer is proposed.

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.

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:

a. Not cost-effective.

b. Not environmentally sound.

c. Not in the interest of public health.

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

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

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.

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.

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.

5. The interbasin transfer 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 the proposed interbasin transfer, based upon a determination that the proposed interbasin transfer will not have any significant adverse impacts on the sustainable management of the waters of the Great Lakes basin.

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.

7. The interbasin transfer will be in compliance with all applicable local, state, and federal laws and interstate and international agreements, including the Boundary Waters Treaty of 1909.

(fm) Approval of certain applications. The department shall determine whether to grant an approval under par. (c) or (e) of an application under par. (b) 1. through the water supply service area planning process under s. 281.348, considering the items in par. (f) 1. to 7. as factors in the cost-effectiveness analysis under s. 281.348 (3) (d) 1.

(g) Conservation and efficient use of existing water supplies. The department shall promulgate rules specifying the requirements for an applicant for a new, increased, or expanded interbasin transfer 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.

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

(4e) Determining initial withdrawal amounts for withdrawals from the Great Lakes basin.

(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 under a general permit or an automatic individual permit, the department shall determine the initial withdrawal amount for the withdrawal under this subsection.

(b)

1. Except as provided in subds. 2. and 3e. and par. (f), the department shall estimate the initial withdrawal amount 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 the date that the department makes the estimate, based on information available to the department.

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 initial withdrawal amount equal to the limit in the approval.

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 initial withdrawal amount that is equal to the sum of the amounts determined for each of the water supply systems.

(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:

1. The components of the water supply system used for the withdrawal.

2. Seasonal variations in the amount of water supplied by the water supply system.

3. Plans for expanding the capacity of the water supply system submitted to the department no later than 2 years after June 11, 2008.

4. Amounts withdrawn during the 5 years before the year in which the person submits the information.

5. Successful water conservation efforts by persons using the water that is withdrawn.

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.

7. Other relevant information.

(e) Except as provided in par. (f), the department shall determine the initial withdrawal amount 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.

(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 initial withdrawal amount 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.

(g) The department's determination of an initial withdrawal amount under par. (e) or (f) is not subject to administrative review under ch. 227 except at the request of the person making the withdrawal.

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

(4m) Water use permits required in the Great Lakes basin. Beginning on June 1, 2015, except as provided in sub. (4s) (bm), 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 under sub. (4s) or an individual permit under sub. (5).

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

(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:

1. Reference to the database of withdrawal amounts under par. (i).

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.

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

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

(b) General requirement. Beginning on the date under sub. (4m), 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, 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.

(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).

(c) Automatic notice of coverage for existing withdrawals. The department shall automatically issue a notice of coverage under a general permit to a person who makes a withdrawal from the Great Lakes basin and who reports under sub. (3) (e) before the date under sub. (4m), if the withdrawal 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. 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 the date under sub. (4m). The department may promulgate a rule under which the department issues automatic notices of coverage under a general permit on a staggered schedule before the date under sub. (4m). In the notice provided under this paragraph for a withdrawal, the department shall specify a withdrawal amount equal to the initial withdrawal amount determined under sub. (4e) for the withdrawal.

(d) Coverage under general permit for new or increased withdrawals.

1. A person who proposes to begin a withdrawal from the Great Lakes basin 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, after June 1, 2011, and to whom the department is not required to issue automatic notice of coverage under a general permit under par. (c), 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. In the application, the person shall provide the information required by the department by rule.

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.

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:

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.

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.

3e. If water is withdrawn through more than one water supply system to serve a facility, the department shall determine the smallest amounts 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.

3m.

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 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.

b. 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.

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.

(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).

(e) Increase in withdrawal amount.

1. Before the compact's effective date, if a person making a withdrawal that is covered under a general permit 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.

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:

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.

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.

3m.

b. 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 modify the withdrawal amount to an amount equal to the withdrawal amount in the water supply service area plan.

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

(g) Redetermination. A person to whom the department has issued a notice of coverage under a general permit shall apply to the department for redetermination of coverage under a new general permit 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.

(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 for cause, including obtaining coverage under the permit by misrepresentation or failure to disclose material facts or substantially violating the terms of the permit.

(i) Database. The department shall maintain a database of the withdrawal amounts for all withdrawals that are covered under general permits under this subsection.

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

(a) Requirement. Beginning on the date under sub. (4m), 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. A person to whom the department has issued an individual permit shall comply with the individual permit.

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

1. A withdrawal amount as determined under par. (d) 3., 3e., or 3m. or (e) 3., 3e., or 3m. or sub. (4e).

3. 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.

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

5. Limits on the location and dates or seasons of the withdrawal and on the allowable uses of the water, as provided in rules promulgated by the department.

6. Conditions on any interbasin transfer under sub. (4) made by the person making the withdrawal.

6m. If s. 281.35 (4) applies to the withdrawal, the matters under s. 281.35 (6) (a).

(c) Automatic issuance of individual permits for existing withdrawals. The department shall automatically issue an individual permit to a person who makes a withdrawal from the Great Lakes basin and who reports under sub. (3) (e) before the date under sub. (4m), if the withdrawal equals at least 1,000,000 gallons per day for any 30 consecutive days. If necessary, the department may request additional information before issuing a permit under this paragraph. The department shall issue a permit under this paragraph no later than the date under sub. (4m). In the permit, the department shall specify a withdrawal amount equal to the initial withdrawal amount determined under sub. (4e) for the withdrawal. The department may promulgate a rule under which the department issues automatic individual permits on a staggered schedule before the date under sub. (4m).

(d) Individual permit for new or increased unpermitted withdrawals.

1. A person who proposes to begin a withdrawal from the Great Lakes basin that will equal at least 1,000,000 gallons per day for any 30 consecutive days or to modify an existing withdrawal so that it will equal at least 1,000,000 gallons per day for any 30 consecutive days, after June 1, 2011, and to whom the department is not required to issue an automatic individual permit under par. (c), shall apply to the department for an individual permit. In the application, the person shall provide the information required by the department by rule.

2. After receiving an application under subd. 1., the department shall, within the time limit established by the department by rule, determine whether to approve the application or notify the applicant of any additional information needed to determine whether to approve the application.

3. Except as provided in subd. 3m., if the department approves an application under subd. 1. 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 an individual permit. In the permit, the department shall specify a withdrawal amount that is, except as provided in subd. 3e., equal to the smallest of the following amounts:

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.

3e. If water is withdrawn through more than one water supply system to serve a facility, the department shall determine the smaller of the amounts 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.

3m.

b. 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 an individual permit. In the permit, the department shall specify a withdrawal amount that is equal to the withdrawal amount in the water supply service area plan.

4. If the department disapproves an application under subd. 1., the department shall notify the applicant in writing of the reason for the disapproval.

(e) Increase in withdrawal amount.

1. Before the compact's effective date, if a person making a withdrawal that is covered under an individual permit proposes to increase the amount of the withdrawal over the withdrawal amount specified in the permit, the person shall apply to the department for a modification of the permit to increase the withdrawal amount.

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.

3m.

b. 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 modify the withdrawal amount to an amount equal to the withdrawal amount in the water supply service area plan.

(f) Term of coverage. The term of an individual permit is 10 years.

(g) Reissuance. A person to whom the department has issued an individual permit under this subsection shall apply to the department for reissuance of the individual permit at least 180 days before the end of the term of the permit if the person intends to continue to withdraw from the Great Lakes basin at least 1,000,000 gallons per day for any 30 consecutive days. If the department determines that the person is in substantial compliance with the individual permit and that the withdrawal continues to qualify for an individual permit, the department shall reissue the permit.

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

(i) Transfer of control. A permit is not transferable to any person except after notice to the department. A person who proposes to assume control over a permitted withdrawal shall file with the department a permit application and a statement of acceptance of the permit. The department may require modification or revocation and reissuance of the permit to change the name of the permittee.

(5m) Interim approval. If a person making a withdrawal that averages 100,000 gallons per day or more in any 30-day period registers the withdrawal under sub. (3) (a) 1. and reports as required under sub. (3) (e) and the department does not automatically issue a notice of coverage under sub. (4s) (c) or an individual permit under sub. (5) (c) for the withdrawal before the compact's effective date, the registration of the withdrawal constitutes an approval for the purposes of s. 281.343 (4t) (b) 1. The withdrawal amount is the total amount reported under sub. (3) (b) 4m., except that if there is a limit in an approval under s. 30.12, 30.18, 281.34, or 281.41 or s. 281.17, 2001 stats., on the amount of water that may be withdrawn by any water supply system used for the withdrawal and that limit is less than the amount reported under sub. (3) (b) 4m. for that water supply system, the withdrawal amount is the total amount reported under sub. (3) (b) 4m. reduced by the difference between the reported amount for that water supply system and the limit in the approval.

(7) Exemptions. Subsections (3) to (5) do not apply to withdrawals or interbasin transfers for any of the following purposes:

(a) To supply vehicles, including vessels and aircraft, for the needs of the persons or animals being transported or for ballast or other needs related to the operation of the vehicles.

(b) To use in a noncommercial project that lasts no more than 3 months for fire fighting, humanitarian, or emergency response purposes.

(7m) Emergency order. The department may, without a prior hearing, order a person to whom the department has issued an individual permit or notice of coverage under a general permit under this section to immediately stop a withdrawal if the department determines that there is a danger of imminent harm to the public health, safety, or welfare, to the environment, or to the water resources or related land resources of this state. The order shall specify the date on which the withdrawal must be stopped and the date, if any, on which it may be resumed. The order shall notify the person that the person may request a contested case hearing under ch. 227. The hearing shall be held as soon as practicable after receipt of a request for a hearing. An emergency order remains in effect pending the result of the hearing.

(8) Statewide water conservation and efficiency.

(a) Goals and objectives. The department shall specify water conservation and efficiency goals and objectives for the waters of the state. The department shall specify goals and objectives for the waters of the Great Lakes basin that are consistent with the goals under s. 281.343 (4b) (a) and the objectives identified by the regional body under Article 304 (1) of the Great Lakes — St. Lawrence River Basin Sustainable Water Resources Agreement. In specifying these goals and objectives, the department shall consult with the department of safety and professional services and the public service commission.

(b) Statewide program. In cooperation with the department of safety and professional services and the public service commission, the department shall develop and implement a statewide water conservation and efficiency program that includes all of the following:

1. Promotion of environmentally sound and economically feasible water conservation measures through a voluntary statewide program.

1m. Mandatory and voluntary conservation and efficiency measures for the waters of the Great Lakes basin that are necessary to implement subs. (4), (4s), and (5) and s. 281.348.

2. Water conservation and efficiency measures that the public service commission requires or authorizes a water utility to implement under ch. 196.

3. Water conservation and efficiency measures that the department of safety and professional services requires or authorizes to be implemented under chs. 101 and 145.

(d) Water conservation and efficiency measures. The department shall promulgate rules specifying water conservation and efficiency measures for the purposes of implementing par. (b). In the rules, the department may not require retrofitting of existing fixtures, appliances, or equipment. In specifying the measures, the department shall consider the results of any pilot water conservation program conducted by the department in cooperation with the regional body.

(9) Public participation.

(b) Public notice.

1. The department shall, by rule, create procedures for circulating to interested and potentially interested members of the public notices of each complete application that the department receives under sub. (4). The department shall include, in the rule, at least the following procedures:

a. Publication of the notice as a class 1 notice under ch. 985.

b. Mailing of the notice to any person, group, local governmental unit, or state agency upon request.

2. The department shall establish the form and content of a public notice by rule. The department shall include in every public notice concerning an application under sub. (4) at least the following information:

a. The name and address of each applicant.

b. A brief description of the proposal for which the application is made under sub. (4), including the amount of the proposed interbasin transfer.

c. A brief description of the procedures for the formulation of final determinations on applications, including the 30-day comment period required under par. (c).

(c) Public comment. The department shall receive public comments on a proposal for which it receives an application under sub. (4) for a 30-day period beginning when the department gives notice under par. (b) 1. The department shall retain all written comments submitted during the comment period and shall consider the comments in making its decisions on the application.

(d) Public hearing.

1. The department shall provide an opportunity for any interested person or group of persons, any affected local governmental unit, or any state agency to request a public hearing with respect to a proposal for which the department receives an application under sub. (4). A request for a public hearing shall be filed with the department within 30 days after the department gives notice under par. (b). The party filing a request for a public hearing shall indicate the interest of the party and the reasons why a hearing is warranted. The department shall hold a public hearing on a proposal for which the department receives an application under sub. (4) if the department determines that there is a significant public interest in holding a hearing.

2. The department shall promulgate, by rule, procedures for the conduct of public hearings held under this paragraph. A hearing held under this paragraph is not a contested case hearing under ch. 227.

3. The department shall circulate public notice of any hearing held under this paragraph in the manner provided under par. (b) 1.

(e) Public access to information. Any record or other information provided to or obtained by the department regarding a proposal for which an application under sub. (4) is received is a public record as provided in subch. II of ch. 19. The department shall make available to and provide facilities for the public to inspect and copy any records or other information provided to or obtained by the department regarding a proposal for which an application for a new or increased interbasin transfer under sub. (4) is received, except that any record or other information provided to the department may be treated as confidential upon a showing to the secretary that the record or information is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), or upon a determination by the department that domestic security concerns warrant confidential treatment. Nothing in this subsection prevents the use of any confidential records or information obtained by the department in the administration of this section in compiling or publishing general analyses or summaries, if the analyses or summaries do not identify a specific owner or operator.

(11) Water use report. Beginning no later than 8 years after June 11, 2008, and every 5 years thereafter, the department, using water use data reported under this section, shall publish a water use report to summarize water usage, identify related trends, identify areas of future water usage concerns, and recommend future actions to promote sustainable water use. The department shall also include in the report water resource information derived from reporting and data accumulation requirements under other water regulatory laws.

(13m) Exceedances. It is not a violation of this section to withdraw an amount of water that exceeds the withdrawal amount specified in a permit issued under sub. (5) or in the database under sub. (4s) (i).

(14) Penalties.

(a) Any person who violates this section or any rule promulgated or approval issued under this section shall forfeit not less than $10 nor more than $10,000 for each violation. Each day of continued violation is a separate offense.

(c) In addition to the penalties under par. (a), the court may order the defendant to abate any nuisance, restore a natural resource, or take, or refrain from taking, any other action as necessary to eliminate or minimize any environmental damage caused by the violation.

(15) Sunset. This section does not apply after the compact's effective date.

History: 2007 a. 227; 2009 a. 180; 2011 a. 32; 2015 a. 177.

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281.343 Great Lakes — St. Lawrence River Basin Water Resources Compact.

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281.346 Water conservation, reporting, and supply regulation; after the compact takes effect.