Section 281.34. Groundwater withdrawals.

 

(1)   Definitions. In this section:

(ae) “Fire protection well" means a well used primarily for fire protection purposes.

(am) “Groundwater protection area" means an area within 1,200 feet of any of the following:

1. An outstanding resource water identified under s. 281.15 that is not a trout stream.

2. An exceptional resource water identified under s. 281.15 that is not a trout stream.

3. A class I, class II, or class III trout stream, other than a class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history, as identified under sub. (8) (a) .

(b) “High capacity well" means a well, except for a residential well or fire protection well, that, together with all other wells on the same property, except for residential wells and fire protection wells, has a capacity of more than 100,000 gallons per day.

(c) “Local governmental unit" means a city, village, town, county, town sanitary district, utility district under s. 66.0827 that provides water, public inland lake protection and rehabilitation district that has town sanitary district powers under s. 33.22 (3) , joint local water authority created under s. 66.0823 , or municipal water district under s. 198.22 .

(d) “Owner" means a person who owns property on which a well is located or proposed to be located or the designated representative of such a person.

(e) “Potentiometric surface" means a measure of pressure of groundwater in an aquifer based on the level to which groundwater will rise in a well placed in the aquifer.

(em) “Residential well" means a well that has a capacity of 100,000 gallons per day or less and that is used primarily to provide water to a single-family or multifamily residence.

(f) “Spring" means an area of concentrated groundwater discharge occurring at the surface of the land that results in a flow of at least one cubic foot per second at least 80 percent of the time.

(g) “Water loss" means a loss of water from the basin from which it is withdrawn as a result of interbasin diversion or consumptive use or both.

(h) “Well" means any drillhole or other excavation or opening deeper than it is wide that extends more than 10 feet below the ground surface and is constructed for the purpose of obtaining groundwater.

(2)   Approval required for high capacity wells. An owner shall apply to the department for approval before construction of a high capacity well begins. No person may construct or withdraw water from a high capacity well without the approval of the department under this section or under s. 281.17 (1) , 2001 stats. An owner applying for approval under this subsection shall pay a fee of $500.

(2m)   Temporary dewatering wells. The department shall issue a single approval under sub. (2) for all high capacity wells constructed for one project, as determined by the department, for temporary dewatering of a construction site, including a construction site for a building, road, or utility. The department shall provide for amendments to a project under this subsection. A person applying for approval of high capacity wells for a project under this subsection is only required to pay one $500 fee.

(3)   Notification required for other wells.

(a) An owner shall notify the department of the location of a well that is not a high capacity well before construction of the well begins. An owner notifying the department under this subsection shall pay a fee of $50.

(b) The department may appoint any person who is not an employee of the department as the department's agent to accept and process notifications and collect the fees under par. (a) .

(c) Any person, including the department, who accepts and processes a well notification under par. (a) shall collect in addition to the fee under par. (a) a processing fee of 50 cents. An agent appointed under par. (b) may retain the processing fee to compensate the agent for the agent's services in accepting and processing the notification.

(4)   Environmental review.

(a) The department shall review an application for approval of any of the following using the environmental review process in its rules promulgated under s. 1.11 :

1. A high capacity well that is located in a groundwater protection area.

2. A high capacity well with a water loss of more than 95 percent of the amount of water withdrawn.

3. A high capacity well that may have a significant environmental impact on a spring.

(b) If, under sub. (5) (b) , (c) , or (d) , the department requests an environmental impact report under s. 23.11 (5) for a proposed high capacity well, the department may only request information in that report that relates to the decisions that the department makes under this section related to the proposed high capacity well.

(5)   Standards and conditions for approval.

(a) Public water supply. If the department determines that a proposed high capacity well may impair the water supply of a public utility engaged in furnishing water to or for the public, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that will ensure that the water supply of the public utility will not be impaired.

(b) Groundwater protection area.

1. Except as provided in subd. 2. , if the department determines, under the environmental review process in sub. (4) , that an environmental impact report under s. 23.11 (5) must be prepared for a proposed high capacity well located in a groundwater protection area, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact.

2. Subdivision 1. does not apply to a proposed high capacity well that is located in a groundwater protection area and that is a water supply for a public utility engaged in supplying water to or for the public, if the department determines that there is no other reasonable alternative location for a well and is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.

(c) High water loss. If the department determines, under the environmental review process in sub. (4) , that an environmental impact report under s. 23.11 (5) must be prepared for a proposed high capacity well with a water loss of more than 95 percent of the amount of water withdrawn, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact.

(d) Impact on a spring.

1. Except as provided in subd. 2. , if the department determines, under the environmental review process in sub. (4) , that an environmental impact report under s. 23.11 (5) must be prepared for a proposed high capacity well that may have a significant environmental impact on a spring, the department may not approve the high capacity well unless it is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the high capacity well does not cause significant environmental impact.

2. Subdivision 1. does not apply to a proposed high capacity well that may have a significant environmental impact on a spring and that is a water supply for a public utility engaged in supplying water to or for the public, if the department determines that there is no other reasonable alternative location for a well and is able to include and includes in the approval conditions, which may include conditions as to location, depth, pumping capacity, rate of flow, and ultimate use, that ensure that the environmental impact of the well is balanced by the public benefit of the well related to public health and safety.

(dm) Water supply service area plan. If a proposed high capacity well is covered by an approved water supply service area plan under s. 281.348 , the department may not approve the high capacity well unless it is consistent with that plan.

(e) All high capacity wells.

1. If s. 281.35 (4) applies to a proposed high capacity well, the department shall include in the approval conditions that ensure that the high capacity well complies with s. 281.35 (4) to (6) .

2. The department shall include in the approval for each high capacity well requirements that the owner identify the location of the high capacity well and submit an annual pumping report.

(5m)   Consideration of cumulative impacts. No person may challenge an approval, or an application for approval, of a high capacity well based on the lack of consideration of the cumulative environmental impacts of that high capacity well together with existing wells.

(6)   Preexisting high capacity wells.

(a) The owner of a high capacity well for which the department issued an approval under s. 281.17 (1) , 2001 stats., shall provide to the department information concerning the location of the well and an annual pumping report.

(b) The department shall promulgate rules specifying the date and method by which owners of high capacity wells shall comply with par. (a) .

(7)   Modifying and rescinding approvals for high capacity wells. The approval of a high capacity well issued under this section or under s. 281.17 (1) , 2001 stats., remains in effect unless the department modifies or rescinds the approval because the high capacity well or the use of the high capacity well is not in conformance with standards or conditions applicable to the approval of the high capacity well.

(8)   Groundwater protection areas.

(a) The department shall promulgate rules identifying class I, class II, and class III trout streams for the purposes of this section. The department shall identify as a class I trout stream a stream or portion of a stream with a self-sustaining population of trout. The department shall identify as a class II trout stream a stream or portion of a stream that contains a population of trout made up of one or more age groups, above the age one year, in sufficient numbers to indicate substantial survival from one year to the next but in which stocking is necessary to fully utilize the available trout habitat or to sustain the fishery. The department shall identify as a class III trout stream a stream or portion of a stream that has marginal trout habitat with no natural reproduction of trout occurring, requiring annual stocking of trout to provide trout fishing, and generally without carryover of trout from one year to the next. In the rules under this paragraph, the department shall identify any class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history.

(b) The department shall create accurate images of groundwater protection areas.

(c) A person who proposes to construct a high capacity well may request the department to determine whether the proposed location of the high capacity well is within a groundwater protection area.

(d) The department shall administer a program to mitigate the effects of wells constructed before May 7, 2004, that are located in groundwater protection areas. Mitigation may include abandonment of wells and replacement of wells, if necessary, and management strategies. Under the mitigation program, the department may order the owner of a well constructed before May 7, 2004, that is located in a groundwater protection area to undertake mitigation but only if the department provides funding for the full cost of the mitigation, except that full funding is not required if the department is authorized under ch. 280 to require the well to be abandoned because of issues regarding public health.

(9)   Groundwater management areas.

(a) The department shall, by rule, designate 2 groundwater management areas including and surrounding Brown County and Waukesha County consisting of the entire area of each city, village, and town at least a portion of which is within the area in which, on May 7, 2004, the groundwater potentiometric surface has been reduced 150 feet or more from the level at which the potentiometric surface would be if no groundwater had been pumped.

(b) The department shall assist local governmental units and regional planning commissions in groundwater management areas designated under par. (a) by providing advice, incentives, and funding for research and planning related to groundwater management.

(c) If the groundwater advisory committee created under 2003 Wisconsin Act 310 , section 15 (2) (b) does not issue the report under 2003 Wisconsin Act 310 , section 15 (2) (e) by January 1, 2007, the department shall promulgate rules using its authority under ss. 281.12 (1) and 281.35 to address the management of groundwater in groundwater management areas.

(d) If the department promulgates rules under par. (c) and the rules require mitigation in the same or a similar manner as under sub. (8) (d) , the department may not require mitigation for a well under the rules unless the department provides funding for the full cost of the mitigation, except that full funding is not required if the department is authorized under ch. 280 to require the well to be abandoned because of issues regarding public health.

(10)   Research and monitoring. To aid in the administration of this section the department shall, with the advice of the groundwater coordinating council, conduct monitoring and research related to all of the following:

(a) Interaction of groundwater and surface water.

(b) Characterization of groundwater resources.

(c) Strategies for managing water.

2003 a. 310 ; 2007 a. 227 ; 2009 a. 28 ; 2013 a. 20 ; 2015 a. 177 . Cross-reference: See also ch. NR 820 , Wis. adm. code. Through ss. 281.11 and 281.12, the legislature has delegated the state's public trust duties to the DNR in the context of its regulation of high capacity wells and their potential effect on navigable waters. For all proposed high capacity wells, the legislature has expressly granted the DNR the authority and a general duty to review all permit applications and to decide whether to issue the permit, to issue the permit with conditions, or to deny the application, which provides the DNR with the discretion to undertake the review it deems necessary for all proposed high capacity wells, including the authority and a general duty to consider the environmental impact of a proposed high capacity well on waters of the state. Lake Beulah Management District v. DNR, 2011 WI 54 , 335 Wis. 2d 47 , 799 N.W.2d 73 , 08-3170 . There is nothing in either s. 281.34 or 281.35 that limits the DNR's authority to consider the environmental impacts of a proposed high capacity well, nor is there any language in subchapter II of Wis. Stat. ch. 281 that requires the DNR to issue a permit for a well if the statutory requirements are met and no formal review or findings are required. There being no language expressly revoking or limiting the DNR's authority and general duty to protect and manage waters of the state, the DNR retains such authority and general duty to consider whether a proposed high capacity well may impact waters of the state. Lake Beulah Management District v. DNR, 2011 WI 54 , 335 Wis. 2d 47 , 799 N.W.2d 73 , 08-3170 . The DNR is required to consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state. Upon what evidence, and under what circumstances, that duty is triggered is a highly fact-specific matter that depends upon the information submitted by the well owner in the well permit application and any other information submitted to the DNR decision makers. The DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application such that it has an obligation to consider environmental concerns. Lake Beulah Management District v. DNR, 2011 WI 54 , 335 Wis. 2d 47 , 799 N.W.2d 73 , 08-3170 . Wisconsin's high capacity well regulatory structure set forth in this section, and related sections, does not explicitly require or explicitly permit monitoring wells or cumulative impact analysis as conditions for high capacity well permits. A monitoring well condition on a high capacity well permit is prohibited and unenforceable under s. 227.10 (2m). OAG 1-16 . Groundwater: Diminishing Resource, Increasing Conflict. Westerberg. Wis. Law. July/Aug. 2015.