Section 281.75. Compensation for well contamination and abandonment.

 

(1)   Definitions. In this section:

(a) “Alternate water supply" means a supply of potable water obtained in bottles, by tank truck or by other similar means.

(b) “Contaminated well" or “contaminated private water supply" means a well or private water supply which:

1. Produces water containing one or more substances of public health concern in excess of a primary maximum contaminant level promulgated in the national drinking water standards in 40 CFR 141 and 143 ;

2. Produces water containing one or more substances of public health concern in excess of an enforcement standard under ch. 160 ; or

3. Is subject to a written advisory opinion, issued by the department, containing a specific descriptive reference to the well or private water supply and recommending that the well or private water supply not be used because of potential human health risks.

(c) “Groundwater" means any of the waters of the state occurring in a saturated subsurface geological formation of permeable rock or soil.

(d) “Livestock" has the meaning specified under s. 95.80 (1) (b) and includes poultry.

(e) “Livestock water supply" means a well which is used as a source of potable water only for livestock and which is:

1. Approved by the department of agriculture, trade and consumer protection for grade A milk production under s. 97.24 ; or

2. Constructed by boring or drilling.

(f) “Private water supply" means a residential water supply or a livestock water supply.

(g) “Residential water supply" means a well which is used as a source of potable water for humans or humans and livestock and is connected to 14 or less dwelling units.

(h) “Well," if not followed by the words, “subject to abandonment," means an excavation or opening in the ground made by boring, drilling or driving for the purpose of obtaining a supply of groundwater. “Well" does not include dug wells.

(i) “Well subject to abandonment" means a well that is required to be abandoned under s. NR 812.26 (2) (a) , Wis. Adm. Code, or that the department may require to be abandoned under s. NR 812.26 (2) (b) , Wis. Adm. Code.

(2)   Duties of the department. The department shall:

(a) Establish by rule procedures for the submission, review and determination of claims under this section.

(b) Assist claimants in submitting applications for compensation under this section.

(c) Issue awards under this section.

(d) Establish casing depth and other construction requirements for a new or reconstructed private water supply.

(e) Declare an area of special eligibility for compensation for well contamination, based on contamination reported after December 31, 2005, if all of the following criteria are satisfied:

1. Results of tests performed by a laboratory certified under s. 299.11 establish that wells in the area are contaminated by fecal bacteria.

2. Evidence demonstrates that the bacterial contamination is caused by livestock.

(f) Establish requirements for the filling and sealing of wells subject to abandonment.

(3)   Wells for which a claim may be submitted. A claim may be submitted for a private water supply which, at the time of submitting the claim, is contaminated or for a well subject to abandonment.

(4)   Who may submit a claim.

(a) Except as provided under par. (b) , a landowner or lessee of property on which is located a contaminated private water supply or a well subject to abandonment, or the spouse, dependent, heir, assign or legal representative of the landowner or lessee, may submit a claim under this section.

(b) The following entities may not submit a claim:

1. The state.

2. An office, department, independent agency, institution of higher education, association, society or other body in state government.

3. An authority created under subch. II of ch. 114 or ch. 231 , 233 , 234 , 237 , or 238 .

4. A city, village, town, county or special purpose district.

5. A federal agency, department or instrumentality.

6. An interstate agency.

(4m)   Income limitation.

(a) In order to be eligible for an award under this section, the annual family income of the landowner or lessee of property on which is located a contaminated water supply or a well subject to abandonment may not exceed $65,000.

(b) Except as provided under par. (d) , annual family income shall be based upon the adjusted gross income of the landowner or lessee and the landowner's or lessee's spouse, if any, as computed for Wisconsin income or franchise tax purposes for the taxable year prior to the year in which the claim is made. The county median income shall be determined based upon the most recent statistics published by the federal department of housing and urban development for the year prior to the year of the enforcement order.

(c) In order to be eligible for an award under this section, the claimant shall submit a copy of the designated income or franchise tax returns for the taxable year prior to the year in which the claim is made together with the application under sub. (5) . The claimant shall submit a copy of the landowner's or lessee's Wisconsin franchise tax return, joint Wisconsin income tax return or, if filing separately, the landowner's or lessee's separate Wisconsin income tax return and the separate Wisconsin income tax return of his or her spouse, if any.

(d) The department may disregard the Wisconsin income tax return for the taxable year prior to the year in which the claim is made and may determine annual family income based upon satisfactory evidence of adjusted gross income or projected taxable income of the landowner or lessee and the landowner's or lessee's spouse in the current year.

(5)   Application.

(a) A claimant shall submit a claim on forms provided by the department. The claimant shall verify the claim by affidavit.

(b) The claim shall contain:

1. Test results which show that the private water supply is contaminated, as defined under sub. (1) (b) 1. or 2. , information to show that the private water supply is contaminated as defined under sub. (1) (b) 3. , or information to show that the well is a well subject to abandonment;

2. If the claim is based on a contaminated private water supply, any information available to the claimant regarding possible sources of contamination of the private water supply; and

3. Any other information requested by the department.

(c) The department shall notify the claimant if the claim is complete or specify the additional information which is required to be submitted. If the claimant does not submit a complete claim, as determined by the department, the department may not proceed under this section until it receives a complete claim.

(d) A claim constitutes consent by the claimant to:

1. Enter the property where the private water supply or well subject to abandonment is located during normal business hours and conduct any investigations or tests necessary to verify the claim; and

2. If the claim is based on a contaminated private water supply, cooperate with the state in any administrative, civil or criminal action involving a person or activity alleged to have caused the private water supply to become contaminated.

(e) The department shall consolidate claims if more than one claimant submits a claim for the same private water supply or for the same well subject to abandonment.

(f) The department shall allocate money for the payment of claims according to the order in which completed claims are received. The department may conditionally approve a completed claim even if the appropriation under s. 20.370 (6) (cr) is insufficient to pay the claim. The department shall allocate money for the payment of a claim which is conditionally approved as soon as funds become available.

(6)   Determining contamination.

(a) Contamination of a private water supply, as defined under sub. (1) (b) 1. or 2. , is required to be established by analysis of at least 2 samples of water, taken at least 2 weeks apart, in a manner which assures the validity of the test results. The samples shall be tested by a laboratory certified under s. 299.11 .

(b) The department may reject test results which are not sufficiently recent.

(c) The department, at its own expense, may test additional samples from any private water supply for which a claim is submitted.

(7)   Purpose and amount of award.

(a) If the department finds that the claimant meets all the requirements of this section and rules promulgated under this section and that the private water supply is contaminated or that the well is a well subject to abandonment, the department shall issue an award. The award may not pay more than 75 percent of the eligible costs. The award may not pay any portion of eligible costs in excess of $12,000.

(b) If the annual family income of the claimant exceeds $45,000, the amount of the award is the amount determined under par. (a) less 30 percent of the amount by which the claimant's income exceeds $45,000.

(c) Eligible costs under this subsection include the following items only:

1. If the claim is based on a contaminated private water supply, the cost of obtaining an alternate water supply;

2. If the claim is based on a contaminated private water supply, the cost of any one of the following:

a. Equipment used for treating the water;

b. Reconstructing the private water supply;

c. Constructing a new private water supply;

d. Providing for a public water supply to replace the private water supply including costs related to connection to the public water supply and costs related to special assessments and one-time municipal charges for capital improvements and services involved in providing the public water supply; or

e. Providing a connection to an existing private water supply;

3. The cost of abandoning a contaminated private water supply, if a new private water supply is constructed, if connection to a public or private water supply is provided, or if the claim is based on a well subject to abandonment;

4. The cost of obtaining 2 tests to show that the private water supply was contaminated if the claim is based on a contaminated private water supply and the cost of those tests was originally paid by the claimant;

5. The cost of purchasing and installing a pump, if the claim is based on a contaminated private water supply and a new pump is necessary for the new or reconstructed private water supply; and

6. If the claim is based on a contaminated private water supply, the cost of relocating pipes, as necessary, to connect the replacement water supply to the buildings served by it.

7. If the claim is based on a contaminated water supply that is eligible under sub. (11) (ae) , the cost of properly abandoning any improperly abandoned private water supply located on the property owned or leased by the claimant.

(8)   Copayment. The department shall require a copayment of $250 unless the claim is solely for well abandonment.

(9)   Contamination standard; nitrates.

(a) This subsection applies to a private water supply which:

1. Is a livestock water supply or is a residential water supply which is used as a source of potable water for livestock as well as for a residence; and

2. Is used at least 3 months each year and while in use provides an estimated average of more than 100 gallons per day for consumption by livestock.

(b) Notwithstanding the requirement of contamination under sub. (7) , if a private water supply meets the criteria under par. (a) and the claim is based upon contamination by nitrates and not by any other substance, the department may make an award only if the private water supply produces water containing nitrates in excess of 40 parts per million expressed as nitrate-nitrogen.

(10)   Issuance of award.

(a) The department shall issue awards without regard to fault.

(b) Contributory negligence is not a bar to recovery and no award may be diminished as the result of negligence attributable to the claimant or to any person who is entitled to submit a claim.

(c) The department shall pay each claim within 30 days after a completed payment request is submitted. The department shall pay eligible costs under sub. (7) based upon cost tables and rules promulgated under sub. (11) (c) .

(11)   Denial of claim; limits on awards.

(a) Denial of claim. The department shall deny a claim if:

1. The claim is not within the scope of this section.

2. The claimant submits a fraudulent claim.

3. The claim is for reimbursement of costs incurred before the department determined that the claim was complete under sub. (5) (c) .

4. If the claim is based on a contaminated private water supply, one or more of the contaminants upon which the claim is based was introduced into the well through the plumbing connected to the well.

5. If the claim is based on a contaminated private water supply, one or more of the contaminants upon which the claim is based was introduced into the well intentionally by a claimant or a person who would be directly benefited by payment of the claim.

6. If the claim is based on a contaminated private water supply, all of the contaminants upon which the claim is based are naturally occurring substances and the concentration of the contaminants in water produced by the well does not significantly exceed the background concentration of the contaminants in groundwater at that location.

7. Except as provided in sub. (14) , an award has been made under this section within the previous 10 years for the parcel of land where the private water supply is located and the claim is based on a contaminated private water supply.

8. If the claim is based on a contaminated private water supply, the contaminated private water supply is a residential water supply, is contaminated by bacteria or nitrates or both, and is not contaminated by any other substance, except as provided in par. (ae) .

9. If the claim is based on a contaminated private water supply, the contaminated private water supply is a livestock water supply, is contaminated by bacteria, and is not contaminated by any other substance.

10. The amount of the award determined under sub. (7) would be less than $100.

(ae) Bacterial contamination. Paragraph (a) 8. does not apply to a residential well that is contaminated by bacteria and is in an area of special eligibility for compensation for well contamination as declared by the department under sub. (2) (e) .

(am) Emergency. Notwithstanding par. (a) 3. , the department may authorize expenditures before a claim is submitted if the department determines that an emergency situation exists. The department shall establish standards and procedures for the payment of claims in emergency situations.

(b) Limits on awards for contaminated wells; purposes.

1. An award may be issued for purchasing and installing a pump if a pump is necessary for the new or reconstructed private water supply.

2. An award may be issued for water treatment only if the contamination cannot be remedied by reconstruction or replacement of the private water supply, or connection to another water supply is not feasible.

3. An award may not be issued for the replacement of a sand point well with a drilled well unless:

a. The department determines that replacement with another sand point well is not feasible; and

b. The department determines that the person had no knowledge or reason to believe the sand point well would become contaminated at the time it was constructed.

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.

(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.

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

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.

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.

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) .

(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.

(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:

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

(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 .

(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.

(14)   New claims.

(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.

(b) Failure to eliminate contamination.

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.

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

(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.

(16)   Relation to other actions.

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

(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.

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

(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.

(17)   Applicability.

(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.

(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) .

(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.

(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:

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

(b) Submits a fraudulent claim under this section.

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