Wisconsin Water Law Fact Sheet - 2007 version.

8/8/2019 Wisconsin Water Law Fact Sheet - 2007 version.

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Governing Doctrines

Public Trust Doctrine - Wisconsin, under the State’s constitution, holdsnavigable waters in trust for the public. Rights of the public includenavigation, water quality and quantity, fishing and swimming, andscenic beauty.

Riparian Rights Doctrine - Rights of riparian landowners (people whoown land adjacent to water) include consumptive use, trapping and fish-ing, and exclusive use of shoreland property above the high water mark.Riparian rights are limited by the rights of the public under the publictrust doctrine.

General Legislation

Clean Water Act (1972, Revised 1981, 1987) is federal water quality legislation requires the U.S. EPA to regulate water pollution and protectand preserve waters of the United States, including wetlands. In Wis-consin, the EPA delegates administration of the NPDES (National Pol-lution Discharge Elimination System) program established in the Clean Water Act to the Wisconsin DNR.

Safe Drinking Water Act (1974 Amended 1986, 1996) e EPA estab-lishes nation-wide standards for contaminants (natural and man-made)in public water systems. ese standards are regulated and enforced by the DNR.

Navigable Waters Law (Wis. Stats., Chapter 30, Amended 2003 Act

118, and Chapter 31) ese chapters regulate navigable waters, harbors,boating and dams. ey include rights and restrictions for public useand riparian owners, permit requirements for projects in and near wa-ters, and conservation and improvement programs.

Wisconsin Zoning Ordinances (Section 281.31, Wis. Stats.; Wis. Admin. Code Chapters NR 115, 117) e state establishes minimumshoreland and shoreland wetland zoning standards that local govern-ments must meet. ese include ordinances governing shoreland devel-opment and land use around wetlands in shoreland districts.

Regulation and Enforcement

Federal

e U.S. government oversees waters thatmay be used for interstate commerce.

e Environmental Protection Agency (EPA) regulates water quality, pollutionand drinking water standards.

e Army Corps of Engineers (ACE)oversees projects that alter waterways,including discharges to wetlands, withEPA review.

e U.S. Coast Guard enforces regula-tions in ports and waters of the UnitedStates.

State

e state protects navigable waters heldin public trust and has regulatory author-ity over all water resources in the state.

e Department of Natural Resources (DNR) is principle state agency in chargeof water resource regulations to protectpublic rights, health and safety.

Water resources are affected by regula-tions of many state agencies:

Department of Agriculture, Trade and

Consumer Protection (DATCP)Department of Transportation (DOT)

Department of Commerce

Local

County, city and village governmentshave some regulatory authority over local water resources, as do municipal bodiesincluding sewage and sanitary districts, water utilities, and farm drainage dis-tricts.

The waters of Southeastern Wisconsin are vast but vulnerable.We depend on our waters for drinking water, irrigation, industry, transportation, power production,

recreation and scenic beauty.

Understanding our region’s water-related issues and future challenges can help us protectclean, abundant water for generations to come.

�� Wisconsin Water Law



Surface Water

In Wisconsin, the DNR regulates surface water quality, which includes admin-istration of the Clean Water Act as delegated by the EPA. e state regulates theamount of pollutants that can be added to surface waters based on published wa-ter quality standards and technology-based requirements. Additional restrictionson new or increased discharges of pollution are applied to surface waters identi-fied as outstanding or exceptional waters.

e DNR also regulates surface water withdrawals and sport and commercial fish-eries. Federal and state permits are required for projects that alter waterways (suchas building piers or dredging). Local governments can establish “Public InlandLake Protection and Rehabilitation Districts” with certain regulatory powers overcounty or municipal surface waters.

Key Regulations

Wisconsin’s “WPDES” Permit Program (Wis. Stat. ch. 283) regulates dischargesof pollutants from point sources to all waters of the state, which includes allsurface water and ground water. Point sources include discharges from wastewater

treatment plants but also include many stormwater runoff systems and certainlivestock operations.

Under a delegation agreement between Wisconsin and EPA, the WPDES permitssatisfy the Clean Water Act requirements regarding pollutant discharges to watersof the United States. e DNR issues WPDES permits for approved dischargesand gives public notice so citizens can comment on proposed permits. Enforcingpollution regulations relies heavily on self-reporting (usually monthly) by permit-ted industrial and commercial entities, although the DNR and EPA can conductinspections.

Public Rights

Wisconsin holds navigable wa-ters in trust for the public. Pub-

lic rights are superior to privateriparian rights, and the statemay regulate riparian activitiesto protect public uses.

Under state statutes, land and water below a lake’s Ordinary High Water Mark (OHWM, where a change in shorelandor vegetation marks high waterlevels) is public and owned by

the state. A navigable streambed is owned by riparian prop-erty owners, but the state andpublic have rights of use below the OHWM. e common ruleis, “If your feet are wet, you’renot trespassing.”

Wetlands

In Wisconsin, federal and state agencies cooperate to regulate discharges and fillactivities in wetlands. State and federal permits are required for discharging intoor filling wetlands. e DNR reviews federal permits and must issue a water qual-ity certification assuring that the permit meets state water quality standards. Localgovernments must adopt shoreland wetland zoning ordinances that regulate landuse around wetlands near navigable waters. e DNR provides minimum statestandards and assists local governments in developing ordinances.

Key Regulations

e Clean Water Act (Section 404, CWA) requires permits for discharge or

fill activities in wetlands adjacent to navigable waters. Section 401 of the CWA requires states to determine if federal permits comply with state regulations. Nofederal permit can become final until a state certification is received or waived.

Wisconsin’s “Isolated Wetlands Law” (2001 Act 6, Section 281.36, Wis. Stats.)protects isolated wetlands not covered under the CWA (Wisconsin was the firststate to protect these ecosystems).

Wisconsin Administrative Code (NR 103) defines wetland water quality stan-dards used to approve state and federal permits for wetland discharges and fill-ing. e standards encourage avoiding or minimizing wetland impacts, and deny permits for projects with significant adverse impacts.

Pre-development Wisconsin hadover 10 million acres of wet-land; approximately 47% hasbeen lost.

Source: “State Wetland ProgramEvaluation: Phase II,” EnvironmentalLaw Institute, 2006.

Photo: Lee Karney,U.S. Fish and Wildlife



Ground Water

Public Rights

Ground water use in Wisconsinis governed by state regulations

and the rules established by caselaw. A landowner can withdraw and use ground water under hisor her land in accordance withallowable amounts and for abeneficial purpose, unless the withdrawal causes unreason-able harm through lowering the water table or reducing artesianpressure, or the withdrawal has

a direct and substantial effect onsurface waters.

In Wisconsin the DNR oversees ground water regulation. It approves well per-mits and administers federal and state programs such as wellhead protectionand source water assessment for public water systems. e DNR and WisconsinDepartment of Commerce oversee brownfield developments (sites complicatedby contamination), and DATCP regulates agricultural chemicals and pesticides,

which also affect ground water.

Key Regulations

Wisconsin Administrative Code (ch. NR 812) establishes guidelines for well sites,including distances between wells and sewage lines, animal yards, or other poten-tially contaminated sites.

Wisconsin Administrative Code (ch. NR 811) requires the state to implement wellhead protection programs to meet EPA rules. is protects public water sup-plies by managing the land from which ground water is replenished.

Wisconsin’s “Ground Water Quality Management Law” (1983 Act 410) requiresstate agencies to enact regulations to protect ground water from contamination

related to landfills, pesticides and other sources. e DNR enforces ground waterquality standards for over 100 substances of public health concern (NR 140).

Wisconsin’s “Ground Water Quantity Management Law” (2003 Act 310) amendsstate statutes to require DNR notification for all wells and gives DNR additionalspecific approval criteria for high-capacity wells (pumping over 100,000 gallonsper day). e Act requires environmental review for wells within 1200 feet of outstanding or exceptional waters, significant springs, or trout streams, and wells

with 95% water loss.

Wisconsin’s “WPDES” Permit Program (Wis. Stat. ch. 283) regulates the dis-charge of wastewater from point sources to ground water. Some of these discharg-

es are from seepage cells in which diluted wastewater seeps through the soil below the cells. Most point source discharges to ground water occur from the applica-tion on fields of industrial wastewater or manure from farms.

Regional Ground Water Management

e Ground Water Quantity Management Act createda Ground Water Advisory Committee, with municipal,industrial, agricultural and environmental represen-tatives, to make recommendations on ground water

management in Wisconsin. e Act also establishedtwo Ground Water Management Areas (GMAs), onein Southeastern Wisconsin and one in the Lower FoxRiver Valley.

e Committee has recommended that the GMAs berequired to develop management plans that includeconservation, best management practices, resourcemonitoring and progress reporting. e plans’ require-ments would be set by administrative rule, and plans would be reviewed and approved by the DNR.

Potential Ground Water Management Areas

Lower Fox River Valley Southeastern Wisconsin

Brown

Calumet

Outagamie

OzaukeeWashington

Milwaukee

Waukesha

Walworth

Kenosha

Racine

Area of GMA with deep aquifer

drawdown of more than 150 feet

Approximate Ground Water

Management Area (GMA)

Source: “The New Groundwater Law - 2003 Wisconsin Act 310,” DNR presentation, 2005.



Non-point Pollution - Stormwater, Runoff and Erosion

In Wisconsin, multiple state agencies oversee federal and state non-pointpollution regulatory programs. e DNR administers regulations involvingland management practices that can reduce non-point pollution. Most of these practices can only be mandated if cost-share money can be made avail-

able to the property owner.e DNR regulates stormwater runoff from larger construction sites as apoint source. Some runoff-related regulations have been assigned to otherstate agencies. e Legislature gave Commerce authority over stormwatererosion control at public building sites, places of employment, and one andtwo family dwellings. e DOT regulates stormwater runoff from its high- way projects and DNR and DATCP regulate many agricultural non-pointprograms and provide cost-share assistance.

Key Regulations

Under Wis. Stat., ch. 281, the DNR regulates non-point source pollution.e state has established performance standards and prohibited practices fornon-point pollution sources (ch. NR 151). ese performance standardsand prohibitions are designed to achieve compliance with water quality standards, and offer some level of protection for surface water as well asground water, including wetlands. Cost-sharing must be offered to existingagricultural facilities to require compliance with these standards.

Under Wis. Stat. Section 92.15, local units of government may enact morestringent livestock ordinances if the ordinance is needed to meet water qual-ity standards and approval is obtained from the DNR or DATCP. In somecases there is regulatory overlap between the non-point pollution programs

and the point source programs that address agricultural runoff.

Wisconsin Administrative Code (NR 151) establishes standards for stormwater discharges and erosion control for certain municipalities, industrialfacilities and construction sites, although most of these are regulated aspoint sources. Many municipalities and most construction sites larger thanone acre must meet the standards for WPDES permits (for example, con-struction sites must control sediment loads and infiltrate some stormwaterinto the land). By 2008, all local governments must implement stormwatermanagement plans.

Non-point source pollution generally refers to pollution originatingfrom a wide area, not a specific source or “point.” It occurs when rain,snowmelt, or irrigation flows over land as runoff, and carries sedi-ment, nutrients and toxins from urban, industrial and agriculturalactivities into waters.

In recent years, however, many pollution sources related to runoff have come to be regulated as point sources. ese include stormwaterrunoff from industrial facilities, construction sites, large animal feed-ing operations and most urban environments.

CAFOs(Concentrated Animal

Feeding Operations)

In Wisconsin, livestock operations with over 1,000 animals units(there are specific definitions for

cattle, pigs or chickens) that dis-charge pollutants to ground wateror surface waters are consideredCAFOs.

CAFOs are regulated as pointsources an must obtain WPDESpermit coverage. WPDES per-mits regulate discharges from theproduction area (storage areas andanimal confinement areas) as well

as land application activities.

Under federal and state regulations(ch. NR 243) medium and smallfarms can also be CAFOs by defi-nition or designation. To comply with EPA regulations, Wisconsinis revising ch. NR 243.

Photo: Wisconsin DNR



Great Lakes:

e NOBOB Loophole

Vessels carry water in ballast tanksto maintain stability when lightly loaded and discharge it whenloaded with cargo. Sediment andorganisms drawn in with ballast water at one location can be trans-ported and discharged elsewhere.Scientists estimate ballast dis-charge has introduced 1/3 of theGreat Lakes’ 182 invasive species.

Many ships loaded with cargo areconsidered “No Ballast On Board”(NOBOB), but residual sludge in“empty” tanks can harbor organ-isms. When a NOBOB vesselunloads and takes up ballast waterfor stability and can introducethese species.

Photo: Jerry Bielicki, Army Corps of Engineers

As international, navigable waters crucial to trade, the Great Lakes are gov-erned mainly by agreements between the U.S. and Canada, and federal leg-islation enforced by the U.S. Coast Guard and EPA (or delegated to states).Great Lakes states have some regulatory rights over regional and state waters.

Key Regulations

Invasive Species

e Nonindigenous Aquatic Nuisance Prevention and Control Act (1990)provides guidance and grants to help states implement invasive species man-agement plans.

U.S. Coast Guard rules (1993) require vessels to exchange or treat ballast water to kill foreign freshwater organisms before entering the Great Lakes.

e National Invasive Species Act (NISA 1996) expands federal ballast man-agement guidelines.

Introduced federal legislation: the National Aquatic Invasive Species Act, if passed, would target additional methods of species introduction, the Asian

Carp Prevention and Control Act would prohibit shipping or importing in-vasive carp, and the Ballast Water Management Act would require all vesselsto exchange or treat ballast, closing the “No Ballast On Board” (NOBOB)loophole.

Water Use

e Great Lakes Water Quality Act (1972, Revised 1978, Amended 1987)requires restoration plans for 43 Area’s of Concern, where healthy ecosys-tems and public uses are degraded.

e Great Lakes Charter (1985) is an agreement between the Great Lakes

governors and Canadian premiers to jointly manage and protect the GreatLakes.

e Federal Water Resource Development Act (1986) require approval of all Great Lakes governors for new or increased diversions of water out of theGreat Lakes basin.

e drafted Great Lakes Water Resources Compact (2005) includes aninternational agreement and an interstate compact. When ratified, they willprohibit most new diversions and exports of water out of the Great Lakesbasin. A state legislative committee is working to implement the Compactin Wisconsin.

Focus on the Great Lakes



Wetlands & Water Quality

Wisconsin’s continued efforts to preserve wetland ecosys-tems and protect water quality include:

Wisconsin’s Joint Venture Plan - Since 1992, water-fowl stamp revenues have funded wetland restorationprojects. e Plan’s goal is to preserve 55,500 acres of wetland, and restore 177,350 acres of public and private wetland.

Wetland Reserve Program - Facilitated by the DNR,this federal program provides financial incentives to helplandowners protect and restore wetlands.

Conservation Reserve Enhancement Program (CREP)-Facilitated by the U.S. Department of Agriculture, theDNR and DATCP, CREP offers incentives to farmers who convert agricultural land near water to vegetatedbuffer zones that absorb runoff.

Wisconsin Priority Watershed and Lake Program -

Since 1997, the program has funded 86 projects (35 arestill active) to improve water quality in waters impairedby non-point pollution.

Water Quantity

With global water shortages, growing water demandsacross the U.S., and mismanagement of deep ground

water in regions of Wisconsin, the state may need tostrengthen programs that protect our abundant waters.Regulations the state could target to improve conservation

include:e Ground Water Protection Act - Current legislationdoes not require conservation plans for high-capacity

wells (pumping more than 100,000 mgd).

Wisconsin’s Wellhead Protection Program - is pro-gram requires communities to develop conservation plansfor new wells, but does not require implementation oroffer financial incentives.

e 2005 Great Lakes Water Resources Compact - isdrafted legislation will require states to manage new

or increased water withdrawals and consumptive uses within the Great Lakes basin above certain trigger levels.Each state has the opportunity to adopt more protectivestandards than those in the Compact, including strongerconservation measures.

e Public Service Commission (PSC) - e PSC setsthe rate structure that Wisconsin utilities use to chargecustomers. It is currently a “declining block rate” structureso the price of water decreases with greater use, whichhampers stronger water conservation practices.

Sources: “State Wetland Program Evaluation: Phase II,” Environ-mental Law Institute, 2006.“Progress in protecting Wisconsin wetlands,” Wisconsin DNR,2003.“Protecting Wisconsin’s Waters,: A Conservation Report and Tool-kit” Midwest Environmental Advocates, Inc., 2006.

National Issue: Isolated Wetlands

e U.S. Supreme Court has a history of divided opinions on the protectionof wetlands under the Clean Water Act. Recently, in a case concerning twoMichigan landowners, the court ruled 5-4 that regulators may have misin-terpreted the CWA by refusing to let landowners fill and develop isolated

wetlands (Rapanos v. U.S. and Carabell v U.S. Army Corps of Engineers ).

Isolated wetlands lack a consistent, surface connection with navigable watersor their tributaries. e court suggested regulators must determine that the

wetlands “significantly affect the chemical, physical, and biological integrity”of navigable waters in order to exercise CWA authority over discharge and fillactivities. e cases were sent back to lower courts for further fact-finding,leaving wetlands protection in many states to be determined case-by-case.

In Wisconsin, isolated “non-federal” wetlands - those not protected under theCWA - are protected by the state’s Isolated Wetlands Law.

Conservation Programs & Opportunities

Photo: Wisconsin DNR

“Our Waters” fact sheets are pub-lished by the University of Wiscon-sin-Milwaukee and the Great Lakes WATER Institute with support fromthe Brico Fund.

Find more information online at www.glwi.uwm.edu/ourwaters ore-mail [email protected].

Fact sheet updated 05/2007

Wisconsin Water Law Fact Sheet - 2007 version.

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