Section 295.61. Withdrawals of surface waters and groundwater.

 

(1)   Definitions. In this section:

(a) “Authorized base level of water loss" has the meaning given in s. 281.35 (1) (b) .

(b) “Environmentally sound and economically feasible water conservation measures" has the meaning given in s. 281.346 (1) (i) .

(c) “Great Lakes basin" has the meaning given in s. 281.35 (1) (d) .

(d) “High capacity well" has the meaning given in s. 281.34 (1) (b) .

(e) “Interbasin diversion" has the meaning given in s. 281.35 (1) (g) .

(em) “Riparian restoration project" means a project that will restore or enhance the natural beneficial uses and value of a watercourse.

(f) “Upper Mississippi River basin" has the meaning given in s. 281.35 (1) (j) .

(g) Unless the context otherwise requires, “use" includes dewatering.

(h) “Water loss" has the meaning given in s. 281.35 (1) (L) .

(i) “Withdrawal" has the meaning given in s. 281.35 (1) (m) .

(2)   Permit required. No person may engage in any withdrawal or use of surface water as part of a mining operation or bulk sampling, including a withdrawal or use associated with a system or plant under s. 281.41 , unless the person has been issued a water withdrawal permit under this section. No person may engage in any withdrawal or use of groundwater, including a withdrawal or use associated with a system or plant under s. 281.41 , as part of a mining operation or bulk sampling if the capacity and rate of withdrawal of all wells involved in the withdrawal of groundwater or in the dewatering of mines exceeds 100,000 gallons each day unless the person has been issued a water withdrawal permit under this section.

(3)   Permit application.

(a) Application. A person applying for a water withdrawal permit is required to submit only one application. An application for a water withdrawal permit shall include any information requested by the department under s. 295.45 (3) .

(am) Applicant status.

1. A person is not required to be the owner of a piece of riparian property in order to obtain a permit to withdraw surface water from that piece of riparian property if any of the following applies:

a. The person leases the piece of riparian property from the owner.

b. The person holds an easement on the piece of riparian property.

2. A person is not required to be the owner of a piece of property in order to obtain a permit to withdraw groundwater from that piece of property if any of the following applies:

a. The person leases the piece of property from the owner.

b. The person holds an easement on the piece of property.

c. The person has obtained permission from the owner to withdraw groundwater from that piece of property.

(b) Siting analysis. If withdrawal of water at a mining operation or for bulk sampling will involve one or more high capacity wells, the department shall require an applicant for a water withdrawal permit to submit a siting analysis for the purpose of determining the location of the high capacity wells. The analysis shall include alternate proposed locations for each high capacity well. In evaluating a submitted analysis, the department shall recognize there is a need for mining waste sites and processing facilities, including wastewater and sludge storage or treatment lagoons, to be contiguous to the location of the ferrous mineral deposit, and shall allow any high capacity well to be located so that need will be met. The department shall approve the location of each high capacity well as part of the permit issued under sub. (4) .

(c) Entry to land. After an application for a water withdrawal permit has been submitted under this section, the applicant may enter any land from which the applicant proposes to withdraw water or use water for the purpose of making any surveys required for the mining operation or bulk sampling, but no work may be commenced necessary for the mining operation or the bulk sampling until the department issues the permit under this section.

(4)   Permit issuance.

(a) General requirements. The department shall issue a water withdrawal permit if it determines that the withdrawal or use of the surface water or groundwater meets all of the following requirements:

1. The proposed withdrawal and uses of the water are substantially consistent with the protection of public health, safety, and welfare and will not be significantly detrimental to the public interest.

2. The proposed withdrawal and uses of the water will not have a significant adverse impact on the environment and ecosystem of the Great Lakes basin or the Upper Mississippi River basin.

3. The proposed withdrawal and use of the water will not be significantly detrimental to the quantity and quality of the waters of the state.

4. The proposed withdrawal and use of the water will not significantly impair the rights of riparian owners or the applicant obtains the consent of the riparian owners.

5. The proposed withdrawal and use of the water will not result in significant injury to public rights in navigable waters.

6. If the withdrawal or the use of the water will result in an interbasin diversion, the requirements of s. 281.35 (5) (d) 7. are met.

7. The proposed withdrawal or use of the water will comply with any requirements imposed by the department under par. (cm) .

(b) Conservation measures. The person applying for the permit shall submit a plan to the department containing proposed conservation measures to meet the requirements under par. (a) and a proposed schedule for implementing the measures. The plan shall include one or more of the following measures:

1. Environmentally sound and economically feasible water conservation measures.

2. Restoration of hydrologic conditions and functions of the source watershed, or if the withdrawal is from a stream tributary to one of the Great Lakes, restoration of the hydrologic conditions and functions of that stream.

3. Protection of important upland groundwater recharge areas.

4. Stabilization of shorelands.

5. Restoration or enhancement of the natural beneficial uses and values of a stream or river.

6. Implementation of any feasible methods to offset impacts to water quality or quantity.

7. Supplementation of additional water to water bodies to offset lower water levels.

8. Taking steps to improve public rights or interests in navigable waters, if navigable waters are subject to the permit.

9. A mitigation program as provided in s. 295.60 (8) .

10. Measures to offset significant impacts to navigable waters by providing public access to, restoring, or enlarging up to 1.5 acres of navigable waters in exchange for each acre of natural navigable waters that is significantly impacted.

11. A riparian restoration project.

12. Measures as provided in s. 295.605 .

(bn) Plan review; finding. In reviewing the plan, the department may require that conservation measures that are in addition to, or in conjunction with, one or more of the conservation measures specified in par. (b) 1. to 12. be included in the plan. After reviewing the plan and application, if the department finds that the requirements under par. (a) will be met by implementing some or all of the conservation measures contained in the plan, the department shall determine which measures shall be required, shall approve a schedule for implementation, and shall issue the permit.

(cm) Impacts to water supplies. If the department determines that a proposed withdrawal or use of water will result in a significant impact to a public or private water supply, the department shall require the applicant to offset that impact in a manner approved by the department, which may include a requirement that the applicant provide a replacement water supply of similar quality or provide an increased amount of water to the water supply.

(e) Use of waters on nonriparian property. Water withdrawn in accordance with a water withdrawal permit may be used on nonriparian property.

(f) Limits on permit denials. If the department determines that one of the water withdrawal activities subject to an application for a water withdrawal permit does not meet the requirements for issuing the permit under par. (a) and will not be authorized under the permit, the failure to authorize the activity may not affect the department's determination as to whether to approve or deny the permit for other water withdrawal activities that are subject to the application.

(5)   Permit conditions.

(a) The department may impose reasonable conditions in a water withdrawal permit that, except as provided in par. (b) , may not interfere with the mining operation or bulk sampling or limit the amount of water needed for the mining operation or bulk sampling and that relate to any of the following:

1. The location of the withdrawal or use.

2. The authorized base level of water loss from the withdrawal or use.

3. The dates on which or seasons during which withdrawal or use of the water may occur.

4. The purposes for the withdrawal or use of the water.

5. The amount and quality of return flow required and the place of the discharge.

6. The requirements for reporting volumes and rates of withdrawal and any other data specified by the department.

7. Any other conditions that the department determines are necessary to protect the environment and the public health, safety, and welfare and to ensure the conservation and proper management of the waters of the state.

(b) If the department determines that a high capacity well that would be covered by a water withdrawal permit may impair a privately owned high capacity well, the department shall include in the water withdrawal permit conditions that will ensure that the privately owned high capacity well will not be impaired, unless the private high capacity well owner agrees to the impairment.

(6)   Permit modifications.

(a)

1. An operator to whom a permit has been issued under this section may request a modification of any condition in the permit.

2. If the request for a modification under subd. 1. does not result in an increase in an existing withdrawal resulting in a water loss averaging more than 2,000,000 gallons per day in any 30-day period above the operator's authorized base level of water loss, within 30 days of receiving the request the department shall approve the request and amend the permit to incorporate the modification.

3.

a. If the request for a modification under subd. 1. results in an increase in an existing withdrawal resulting in a water loss averaging more than 2,000,000 gallons per day in any 30-day period above the operator's authorized base level of water loss, the department shall determine, using the environmental review process under s. 1.11 , whether it is required to prepare an environmental assessment or environmental impact statement and, if so, shall prepare an environmental assessment or an environmental impact statement. If the department determines, using the environmental review process under s. 1.11 , that the operator must prepare an environmental impact report, the department may only request information in the environmental impact report that relates to decisions that the department makes under this section related to the permit and the department shall limit its analysis to an evaluation of the request for the modification.

b. The department shall publish a class 1 notice, under ch. 985 , and shall publish notice on the department's Internet site, of the availability of information about a request to which this subdivision applies, its proposed decision on the request, the opportunity to comment within 30 days after the date of the publication of the notice, and the opportunity to request a public informational hearing. The department shall also provide the notice to the applicant, the persons specified in s. 30.18 (4) (a) , and if the modification involves a structure through which water transferred from the Great Lakes basin would be returned to the source watershed through a stream tributary to one of the Great Lakes, the governing body of each city, village, and town through which the stream flows or that is adjacent to the stream downstream from the point at which the water would enter the stream. The department's notice to interested persons under this subd. 3. b. may be given through an electronic notification system established by the department. The date on which the department first publishes notice on its Internet site shall be considered the date of the publication of the notice required to be published under this subd. 3. b.

c. Within 180 days of receiving a request to which this subdivision applies, the department shall approve or deny as provided in sub. (4) the request and, if it approves the request, shall amend the permit to incorporate the modification.

(b)

1. The department may propose modifications to any of the conditions in the water withdrawal permit that it determines to be necessary to ensure compliance with the standards in sub. (4) . If it proposes a modification, the department shall determine, using the environmental review process under s. 1.11 , whether it is required to prepare an environmental assessment or environmental impact statement and, if so, shall prepare an environmental assessment or an environmental impact statement. If the department determines, using the environmental review process under s. 1.11 , that the operator must prepare an environmental impact report, the department may only request information in the environmental impact report that relates to decisions that the department makes under this section related to the permit and the department shall limit its analysis to an evaluation of the proposed modification.

2. The department shall publish a class 1 notice, under ch. 985 , and shall publish notice on the department's Internet site, of the availability of information about a proposed modification under this paragraph, the opportunity to comment within 30 days after the date of the publication of the notice, and the opportunity to request a public informational hearing. The department shall also provide the notice to the applicant, the persons specified in s. 30.18 (4) (a) , and if the modification involves a structure through which water transferred from the Great Lakes basin would be returned to the source watershed through a stream tributary to one of the Great Lakes, the governing body of each city, village, and town through which the stream flows or that is adjacent to the stream downstream from the point at which the water would enter the stream. The department's notice to interested persons under this subdivision may be given through an electronic notification system established by the department. The date on which the department first publishes notice on its Internet site shall be considered the date of the publication of the notice required to be published under this subdivision.

3. The department may not impose the modification until after the end of the public comment period under subd. 2.

4. Any modified condition under this paragraph may not interfere with the mining operation or limit the amount of water needed for the mining operation if the holder of the water withdrawal permit is implementing any conservation measures that are applicable under the permit.

(7)   Relationship to other laws. None of the following apply to water withdrawal or use that is associated with mining operations or bulk sampling:

(a) Sections 30.18 , 281.34 , and 281.35 and any rules promulgated under those sections, except as specifically provided in this section.

(b) Any provision of ch. NR 812 , Wis. Adm. Code, that conflicts with this section, except that s. NR 812.08 , Wis. Adm. Code, does not apply to water withdrawal or use that is associated with mining operations or bulk sampling.

(8)   Damage claims.

(a) As used in this subsection, “person" does not include a city, village, or town.

(b) A person claiming damage to the quantity or quality of the person's private water supply caused by bulk sampling or mining may file a complaint with the department and, if there is a need for an immediate alternative source of water, with the city, village, or town where the private water supply is located. The department shall conduct an investigation and if the department concludes that there is reason to believe that the bulk sampling or mining is interrelated to the condition giving rise to the complaint, it shall schedule a hearing.

(c) The city, village, or town in which is located the private water supply that is the subject of a complaint under par. (a) shall, upon request, supply necessary amounts of water to replace the water formerly obtained from the damaged private supply. Responsibility to supply water begins at the time the complaint is filed and ends at the time the decision of the department made at the conclusion of the hearing is implemented.

(d) If the department concludes after the hearing that bulk sampling or mining is the principal cause of the damage to the private water supply, it shall issue an order to the operator requiring the provision of water to the person found to be damaged in a like quantity and quality to that previously obtained by the person and for a period of time that the water supply, if undamaged, would be expected to provide a beneficial use, requiring reimbursement to the city, village, or town for the cost of supplying water under par. (c) , if any, and requiring the payment of compensation for any damages unreasonably inflicted on the person as a result of damage to the person's water supply. The department shall order the payment of full compensatory damages up to $75,000 per claimant. The department shall issue its written findings and order within 60 days after the close of the hearing. Any judgment awarded in a subsequent action for damages to a private water supply caused by bulk sampling or mining shall be reduced by any award of compensatory damages previously made under this subsection for the same injury and paid by the operator. The department shall change the dollar amount under this paragraph annually, beginning with 1978, according to the method under s. 70.375 (6) . Pending the final decision on any appeal from an order issued under this paragraph, the operator shall provide water as ordered by the department. The existence of the relief under this section is not a bar to any other statutory or common law remedy for damages.

(e) If the department concludes after the hearing that bulk sampling or mining is not the cause of any damage, reimbursement to the city, village, or town for the costs of supplying water under par. (c) , if any, is the responsibility of the person who filed the complaint.

(f) Failure of an operator to comply with an order under par. (d) is grounds for suspension or revocation of a mining permit or any approval required for bulk sampling.

(9)   Costs reimbursed.

(a) Costs incurred by a city, village, or town in monitoring the effects of bulk sampling or mining on surface water and groundwater resources, in providing water to persons claiming damage to private water supplies under sub. (8) (c) , or in retaining legal counsel or technical consultants to represent and assist the city, village, or town appearing at the hearing under sub. (8) (b) are reimbursable through the investment and local impact fund under s. 15.435 .

(b) Any costs paid to a city, village, or town through the investment and local impact fund under par. (a) shall be reimbursed to the fund by the city, village, or town if the city, village, or town receives funds from any other source for the costs incurred under par. (a) .

(c) If an order under sub. (8) (d) requiring the operator to provide water or to reimburse the city, village, or town for the cost of supplying water is appealed and is not upheld, the court shall order the cost incurred by the operator in providing water or in reimbursing the city, village, or town pending the final decision to be reimbursed from the investment and local impact fund under s. 15.435 .

2013 a. 1 .