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Wisconsin Water Law Fact Sheet - 2007 version.

Wisconsin Water Law Fact Sheet - 2007 version.

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Published by LakeMichiganFiles
Wisconsin water law fact sheet - 2007
Wisconsin water law fact sheet - 2007

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Published by: LakeMichiganFiles on Dec 17, 2010
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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 Act118, 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 andConsumer 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 wastewatertreatment 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 orfill 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 regulationsand 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 hasa 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 contaminationrelated 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 watermanagement 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 ValleySoutheastern WisconsinBrownCalumetOutagamieOzaukeeWashingtonMilwaukeeWaukeshaWalworthKenoshaRacineArea of GMA with deep aquifer drawdown of more than 150 feetApproximate Ground Water Management Area (GMA)
Source: “The New Groundwater Law - 2003 Wisconsin Act 310,” DNR presentation, 2005.

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