2023 Wisconsin Statutes & Annotations › Chapter 281 - Water and sewage. › 281.34 - Groundwater withdrawals.

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.
(ek)
“Reconstruct" means to modify original construction including deepening, lining, installing or replacing a screen, and underreaming.
(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“Water loss" means a loss of water from the basin from which it is withdrawn as a result of interbasin diversion or consumptive use or both.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. Except as provided under sub. (2g), an owner shall apply to the department for approval before construction of a high capacity well begins. Except as provided under sub. (2g), 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.
(2g)
Repair, replacement, reconstruction, and transfer of ownership of an approved high capacity well.
(a)
Except as provided in par. (e), if a high capacity well has been approved under this section or under s. 281.17 (1), 2001 stats., the owner of that well may take any of the following actions without obtaining an additional approval under this section:
1.
Repair and maintain the high capacity well.
2.
Construct a new high capacity well to replace the existing high capacity well if the new high capacity well will be constructed in accordance with department standards that apply to the construction of new high capacity wells on the date that construction of the replacement high capacity well begins, if the existing high capacity well is filled and sealed as provided in rules promulgated by the department, and if any of the following applies:
a.
The purpose of replacement is to remedy or prevent contamination. The owner of the well shall submit documentation of the contamination to the department in the manner and form required by the department.
b.
The replacement high capacity well will be drilled to substantially the same depth as the existing high capacity well and either will be located within a 75-foot radius of the existing high capacity well or will be located farther from the nearest groundwater protection area than the existing high capacity well and not be located within any other groundwater protection area.
3.
Reconstruct the high capacity well, if the reconstructed high capacity well is constructed to substantially the same depth and specifications as the existing high capacity well.
4.
Transfer the approval, concurrent with transferring the land on which the high capacity well is located, to the person to whom the land is transferred.
(b)
The department may not impose a fee for any action taken under this subsection.
(c)
No later than 90 days after taking any action under par. (a) 2., 3., or 4., the owner of the high capacity well shall notify the department of the action taken on a form prescribed by the department. For any action taken under par. (a) 2., the owner shall, on the same form, notify the department of the location of the replacement high capacity well and the method by which the existing well was filled and sealed.
(d)
Except as provided in sub. (7), the conditions included in the approval for the high capacity well continue to apply after an owner takes any of the actions under par. (a).
(e)
An owner of a well may not take an action under par. (a) if the action would be inconsistent with the conditions included in the approval for the high capacity well.
(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.
(7m)
Designated study area.
(a)
In this subsection:
1.
“Designated study area" means the area made up of the Fourteenmile Creek Watershed, the Ten Mile Creek Watershed, and the Lone Rock-Fourteenmile Creek Watershed, located in Adams, Portage, Waushara, and Wood counties, as designated by the U.S. Geological Survey.
2.
“Qualified lake association" means an association that meets the qualifications under s. 281.68 (3m) (a).
(b)
The department shall evaluate and model the hydrology of Pleasant Lake in Waushara County, Plainfield Lake and Long Lake in the designated study area, and any other navigable stream or navigable lake located in the designated study area for which the department seeks to determine whether existing and potential groundwater withdrawals are causing or are likely to cause a significant reduction of the navigable stream's or navigable lake's rate of flow or water level below its average seasonal levels. The department may request, under s. 13.10, the joint committee on finance to provide funding and positions for the evaluation and modeling under this paragraph. The evaluation under this paragraph shall include all relevant factors that may affect groundwater and water levels and rates of flow of navigable waters, including topography, ground cover, annual and seasonal variations in precipitation, and plant life. The department shall begin the evaluation and modeling under this paragraph no later than June 3, 2018.
(c)
If upon conclusion of the evaluation and modeling of the area under par. (b) the department determines that special measures relating to existing and potential groundwater withdrawal are necessary in all or part of that area to prevent or remedy a significant reduction of a navigable stream's or navigable lake's rate of flow or water level below its average seasonal levels, the department shall issue a decision on whether it recommends that the legislature adopt, by statute, special measures relating to groundwater withdrawal in all or part of that area. If the department issues a decision recommending that the legislature adopt, by statute, special measures relating to groundwater withdrawal in all or part of that area, the decision shall contain all of the following information:
1.
A description of the extent to which the department has determined that cumulative groundwater withdrawals in all or part of the area cause, or are expected to cause, a significant reduction of a navigable stream's or navigable lake's rate of flow or water level below its average seasonal levels.
2.
A description of the concrete scientific information that the department used to establish that there is a hydrologic connection between the groundwater in all or part of the area and the navigable waters in all or part of the area and a causal relationship between groundwater withdrawal in all or part of the area and an existing or potential significant reduction of a navigable stream's or navigable lake's rate of flow or water level below its average seasonal levels, and the degree to which the department verified the connection and causal relationship by the use of field work or field study.
3.
A description of the geographical boundaries of the area to which the department recommends special measures relating to groundwater withdrawal should apply. The department shall identify in the description the specific navigable water or part of the navigable water that is or may be affected by cumulative groundwater withdrawals and shall identify the location of the groundwater withdrawals that the department has determined are causing or may cause a significant reduction of a navigable stream's or navigable lake's rate of flow or water level below its average seasonal levels.
4.
Any proposed special measures in the area described under subd. 3. that the department recommends that the legislature adopt, by statute, to prevent or remedy a significant reduction of a navigable stream's or navigable lake's rate of flow or water level below its average seasonal levels.
5.
An economic impact analysis of the economic effect of the special measures recommended under subd. 4. on specific businesses, business sectors, public utility ratepayers, local governmental units, and the state's economy as a whole.
(d)
The department shall hold a public informational hearing to solicit comments on the department's decision under par. (c). The department shall give notice of the hearing to each person who owns land in the area that would be affected by the proposed special measures under par. (c) 4. and to each owner of a well in that area if the well owner has notified the department of the location of that well.
(e)
After holding the public hearing under par. (d), the department shall prepare a report on whether it recommends that the legislature adopt, by statute, special measures relating to groundwater withdrawal in the area described in its decision under par. (c) 3. No later than 3 years after beginning the evaluation and modeling under par. (b), the department shall submit the report to the joint committee on finance and to the chief clerk of each house of the legislature, for distribution under s. 13.172 (3) to the appropriate legislative standing committees generally responsible for legislation related to environmental issues.
(f)
If the department recommends in its report submitted under par. (e) that the legislature adopt, by statute, special measures relating to groundwater withdrawal in the area described in its decision under par. (c) 3., the department shall prepare an additional report specifying the special measures relating to groundwater withdrawal in that area that the department recommends that the legislature adopt, by statute, to prevent or remedy a significant reduction of a navigable stream's or navigable lake's rate of flow or water level below its average seasonal levels. No later than 3 years after beginning the evaluation and modeling under par. (b), the department shall submit the report to the joint committee on finance and to the chief clerk of each house of the legislature, for distribution under s. 13.172 (3) to the appropriate legislative standing committees generally responsible for legislation related to environmental issues.
(g)
Neither a decision of the department under par. (c) nor a recommendation of the department under par. (e) are final decisions. Notwithstanding ss. 227.42 (1) and 227.52, no person is entitled to administrative or judicial review of a department decision under par. (c) or a department recommendation under par. (e).
(h)
The special measures relating to groundwater withdrawal recommended by the department under par. (c) 4. or (f) shall not be effective unless adopted by the legislature by statute. Notwithstanding par. (j), nothing in this subsection shall affect the department's review of applications and issuance of approvals for high capacity wells located in the area studied under par. (b).
(i)
The owner of a high capacity well that is constructed in the area studied under par. (b) after June 3, 2017, or who takes any of the actions described in sub. (2g) (a) 2. to 4. in the area studied under par. (b) after June 3, 2017, shall provide to the department, with the owner's annual pumping report under sub. (5) (e) 2., readings of a water meter showing the volume of water usage of that high capacity well in gallons.
(j)
1.
The department may issue an approval under this section to a qualified lake association or lake district to construct and operate a new high capacity well, or to operate an existing approved high capacity well, for the sole purpose of providing water to a lake that is located wholly or partially in the area studied under par. (b) to assist the department in evaluating and modeling the hydrology of that area under par. (b), if the department determines that the lake's water level has been significantly reduced below its average seasonal levels. For any approval application submitted by a qualified lake association or lake district under this paragraph, the department shall waive the application fee under sub. (2), expedite the review and approval process to the greatest extent possible, and include, as a condition of the approval, a limit on the water level of the lake that may be reached as a result of the water provided by the proposed well. The department may not issue an approval to a qualified lake association or lake district under this paragraph if it determines that providing water from the proposed high capacity well to a lake is likely to result in a violation of a water quality standard under s. 281.15 for that lake.
2.
The department shall develop and administer a financial assistance program to provide assistance to qualified lake associations and lake districts for all or part of the cost of constructing or operating an approved high capacity well under this paragraph. The financial assistance program shall include provisions relating to cost-sharing from qualified lake associations and lake districts receiving assistance under the program.
3.
The department shall consider, in its evaluation and modeling under par. (b), the effects of the groundwater withdrawal and the supply of water to a lake resulting from any high capacity well constructed under this paragraph.
(k)
Paragraphs (i) and (j) cease to apply in, and, notwithstanding sub. (7), approvals shall expire that were issued under par. (j) in, any part of the area studied under par. (b) to which any of the following applies:
1.
The department submits a report under par. (e) recommending that no special measures relating to groundwater withdrawal in that part of the area be adopted.
2.
The department does not submit the report under par. (e) or (f) within 3 years after beginning the evaluation and modeling under par. (b).
3.
The legislature does not adopt, by statute, special measures relating to groundwater withdrawal in that part of the area within 12 months after receiving a report from the department under par. (f).
4.
The legislature adopts, by statute, special measures relating to groundwater withdrawal in that part of the area.
(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.
History:  2003 a. 310; 2007 a. 227; 2009 a. 28; 2013 a. 20; 2015 a. 177; 2017 a. 10.
Through ss. 281.11 and 281.12, the legislature has delegated the state's public trust duties to the Department of Natural Resources (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 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 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. See also Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.
There is nothing in either this section or s. 281.35 that limits the Department of Natural Resources' (DNR) authority to consider the environmental impacts of a proposed high capacity well, nor is there any language in subch. II of this chapter that requires 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 DNR's authority and general duty to protect and manage waters of the state, 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. See also Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.
The Department of Natural Resources (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 DNR decision makers. 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.
The legislature has granted the Department of Natural Resources the broad but explicit authority to consider the environmental effects of a proposed high capacity well under s. 281.12. That its explicit authority to do so is broad does not negate that authority. That authority to consider the environmental effects of all high capacity wells is consistent with s. 227.10 (2m). Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.
Groundwater: Diminishing Resource, Increasing Conflict. Westerberg. Wis. Law. July/Aug. 2015.