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 protect clean, abundant water for generations to come.

Wisconsin Water Law

Governing Doctrines

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Public Trust Doctrine - Wisconsin, under the State’s constitution, holds navigable waters in trust for the public. Rights of the public include navigation, water quality and quantity, fishing and swimming, and scenic beauty. Riparian Rights Doctrine - Rights of riparian landowners (people who own land adjacent to water) include consumptive use, trapping and fishing, and exclusive use of shoreland property above the high water mark. Riparian rights are limited by the rights of the public under the public trust doctrine.

Regulation and Enforcement Federal
The U.S. government oversees waters that may be used for interstate commerce. The Environmental Protection Agency (EPA) regulates water quality, pollution and drinking water standards. The Army Corps of Engineers (ACE) oversees projects that alter waterways, including discharges to wetlands, with EPA review. The U.S. Coast Guard enforces regulations in ports and waters of the United States.

General Legislation
Clean Water Act (1972, Revised 1981, 1987) This federal water quality legislation requires the U.S. EPA to regulate water pollution and protect and preserve waters of the United States, including wetlands. In Wisconsin, the EPA delegates administration of the NPDES (National Pollution Discharge Elimination System) program established in the Clean Water Act to the Wisconsin DNR. Safe Drinking Water Act (1974 Amended 1986, 1996) The EPA establishes nation-wide standards for contaminants (natural and man-made) in public water systems. These standards are regulated and enforced by the DNR. Navigable Waters Law (Wis. Stats., Chapter 30, Amended 2003 Act 118, and Chapter 31) These chapters regulate navigable waters, harbors, boating and dams. They include rights and restrictions for public use and riparian owners, permit requirements for projects in and near waters, and conservation and improvement programs. Wisconsin Zoning Ordinances (Section 281.31, Wis. Stats.; Wis. Admin. Code Chapters NR 115, 117) The state establishes minimum shoreland and shoreland wetland zoning standards that local governments must meet. These include ordinances governing shoreland development and land use around wetlands in shoreland districts.

State
The state protects navigable waters held in public trust and has regulatory authority over all water resources in the state. The Department of Natural Resources (DNR) is principle state agency in charge of water resource regulations to protect public rights, health and safety. Water resources are affected by regulations of many state agencies: Department of Agriculture, Trade and Consumer Protection (DATCP) Department of Transportation (DOT) Department of Commerce

Local
County, city and village governments have some regulatory authority over local water resources, as do municipal bodies including sewage and sanitary districts, water utilities, and farm drainage districts.

Surface Water
In Wisconsin, the DNR regulates surface water quality, which includes administration of the Clean Water Act as delegated by the EPA. The state regulates the amount of pollutants that can be added to surface waters based on published water quality standards and technology-based requirements. Additional restrictions on new or increased discharges of pollution are applied to surface waters identified as outstanding or exceptional waters. The DNR also regulates surface water withdrawals and sport and commercial fisheries. Federal and state permits are required for projects that alter waterways (such as building piers or dredging). Local governments can establish “Public Inland Lake Protection and Rehabilitation Districts” with certain regulatory powers over county or municipal surface waters.

Public Rights
Wisconsin holds navigable waters in trust for the public. Public rights are superior to private riparian rights, and the state may regulate riparian activities to protect public uses. Under state statutes, land and water below a lake’s Ordinary High Water Mark (OHWM, where a change in shoreland or vegetation marks high water levels) is public and owned by the state. A navigable stream bed is owned by riparian property owners, but the state and public have rights of use below the OHWM. The common rule is, “If your feet are wet, you’re not trespassing.”

Key Regulations
Wisconsin’s “WPDES” Permit Program (Wis. Stat. ch. 283) regulates discharges of pollutants from point sources to all waters of the state, which includes all surface water and ground water. Point sources include discharges from wastewater treatment plants but also include many stormwater runoff systems and certain livestock operations. Under a delegation agreement between Wisconsin and EPA, the WPDES permits satisfy the Clean Water Act requirements regarding pollutant discharges to waters of the United States. The DNR issues WPDES permits for approved discharges and gives public notice so citizens can comment on proposed permits. Enforcing pollution regulations relies heavily on self-reporting (usually monthly) by permitted industrial and commercial entities, although the DNR and EPA can conduct inspections.

Wetlands
Pre-development Wisconsin had over 10 million acres of wetland; approximately 47% has been lost.
Source: “State Wetland Program Evaluation: Phase II,” Environmental Law Institute, 2006.

In Wisconsin, federal and state agencies cooperate to regulate discharges and fill activities in wetlands. State and federal permits are required for discharging into or filling wetlands. The DNR reviews federal permits and must issue a water quality certification assuring that the permit meets state water quality standards. Local governments must adopt shoreland wetland zoning ordinances that regulate land use around wetlands near navigable waters. The DNR provides minimum state standards and assists local governments in developing ordinances.

Key Regulations
The 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. No federal 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 first state to protect these ecosystems). Wisconsin Administrative Code (NR 103) defines wetland water quality standards used to approve state and federal permits for wetland discharges and filling. The standards encourage avoiding or minimizing wetland impacts, and deny permits for projects with significant adverse impacts.

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

Ground Water
In Wisconsin the DNR oversees ground water regulation. It approves well permits and administers federal and state programs such as wellhead protection and source water assessment for public water systems. The DNR and Wisconsin Department of Commerce oversee brownfield developments (sites complicated by contamination), and DATCP regulates agricultural chemicals and pesticides, which also affect ground water.

Public Rights
Ground water use in Wisconsin is governed by state regulations and the rules established by case law. A landowner can withdraw and use ground water under his or her land in accordance with allowable amounts and for a beneficial purpose, unless the withdrawal causes unreasonable harm through lowering the water table or reducing artesian pressure, or the withdrawal has a direct and substantial effect on surface waters.

Key Regulations
Wisconsin Administrative Code (ch. NR 812) establishes guidelines for well sites, including distances between wells and sewage lines, animal yards, or other potentially contaminated sites. Wisconsin Administrative Code (ch. NR 811) requires the state to implement wellhead protection programs to meet EPA rules. This protects public water supplies by managing the land from which ground water is replenished. Wisconsin’s “Ground Water Quality Management Law” (1983 Act 410) requires state agencies to enact regulations to protect ground water from contamination related to landfills, pesticides and other sources. The DNR enforces ground water quality standards for over 100 substances of public health concern (NR 140). Wisconsin’s “Ground Water Quantity Management Law” (2003 Act 310) amends state statutes to require DNR notification for all wells and gives DNR additional specific approval criteria for high-capacity wells (pumping over 100,000 gallons per day). The 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 discharge of wastewater from point sources to ground water. Some of these discharges 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 application on fields of industrial wastewater or manure from farms.

Regional Ground Water Management
The Ground Water Quantity Management Act created a Ground Water Advisory Committee, with municipal, industrial, agricultural and environmental representatives, to make recommendations on ground water management in Wisconsin. The Act also established two Ground Water Management Areas (GMAs), one in Southeastern Wisconsin and one in the Lower Fox River Valley. The Committee has recommended that the GMAs be required to develop management plans that include conservation, best management practices, resource monitoring and progress reporting. The plans’ requirements would be set by administrative rule, and plans would be reviewed and approved by the DNR.

Potential Ground Water Management Areas
Approximate Ground Water Management Area (GMA) Lower Fox River Valley Area of GMA with deep aquifer drawdown of more than 150 feet Southeastern Wisconsin Washington Ozaukee

Outagamie

Brown

Waukesha Milwaukee

Calumet

Walworth

Racine Kenosha

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

Non-point Pollution - Stormwater, Runoff and Erosion
Non-point source pollution generally refers to pollution originating from a wide area, not a specific source or “point.” It occurs when rain, snowmelt, or irrigation flows over land as runoff, and carries sediment, nutrients and toxins from urban, industrial and agricultural activities into waters. In recent years, however, many pollution sources related to runoff have come to be regulated as point sources. These include stormwater runoff from industrial facilities, construction sites, large animal feeding operations and most urban environments.

Photo: Wisconsin DNR

CAFOs (Concentrated Animal Feeding Operations)

In Wisconsin, multiple state agencies oversee federal and state non-point pollution regulatory programs. The DNR administers regulations involving land management practices that can reduce non-point pollution. Most of these practices can only be mandated if cost-share money can be made available to the property owner. The DNR regulates stormwater runoff from larger construction sites as a point source. Some runoff-related regulations have been assigned to other state agencies. The Legislature gave Commerce authority over stormwater erosion control at public building sites, places of employment, and one and two family dwellings. The DOT regulates stormwater runoff from its highway projects and DNR and DATCP regulate many agricultural non-point programs and provide cost-share assistance.

In Wisconsin, livestock operations with over 1,000 animals units (there are specific definitions for cattle, pigs or chickens) that discharge pollutants to ground water or surface waters are considered CAFOs. CAFOs are regulated as point sources an must obtain WPDES permit coverage. WPDES permits regulate discharges from the production area (storage areas and animal confinement areas) as well as land application activities. Under federal and state regulations (ch. NR 243) medium and small farms can also be CAFOs by definition or designation. To comply with EPA regulations, Wisconsin is revising ch. NR 243.

Key Regulations
Under Wis. Stat., ch. 281, the DNR regulates non-point source pollution. The state has established performance standards and prohibited practices for non-point pollution sources (ch. NR 151). These performance standards and prohibitions are designed to achieve compliance with water quality standards, and offer some level of protection for surface water as well as ground water, including wetlands. Cost-sharing must be offered to existing agricultural facilities to require compliance with these standards. Under Wis. Stat. Section 92.15, local units of government may enact more stringent livestock ordinances if the ordinance is needed to meet water quality standards and approval is obtained from the DNR or DATCP. In some cases 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, industrial facilities and construction sites, although most of these are regulated as point sources. Many municipalities and most construction sites larger than one acre must meet the standards for WPDES permits (for example, construction sites must control sediment loads and infiltrate some stormwater into the land). By 2008, all local governments must implement stormwater management plans.

Focus on the Great Lakes

As international, navigable waters crucial to trade, the Great Lakes are governed mainly by agreements between the U.S. and Canada, and federal legislation 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
The Nonindigenous Aquatic Nuisance Prevention and Control Act (1990) provides guidance and grants to help states implement invasive species management 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. The National Invasive Species Act (NISA 1996) expands federal ballast management 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 invasive carp, and the Ballast Water Management Act would require all vessels to exchange or treat ballast, closing the “No Ballast On Board” (NOBOB) loophole.

Photo: Jerry Bielicki, Army Corps of Engineers

Great Lakes: The NOBOB Loophole

Water Use
The Great Lakes Water Quality Act (1972, Revised 1978, Amended 1987) requires restoration plans for 43 Area’s of Concern, where healthy ecosystems and public uses are degraded. The Great Lakes Charter (1985) is an agreement between the Great Lakes governors and Canadian premiers to jointly manage and protect the Great Lakes. The Federal Water Resource Development Act (1986) require approval of all Great Lakes governors for new or increased diversions of water out of the Great Lakes basin. The drafted Great Lakes Water Resources Compact (2005) includes an international agreement and an interstate compact. When ratified, they will prohibit most new diversions and exports of water out of the Great Lakes basin. A state legislative committee is working to implement the Compact in Wisconsin.

Vessels carry water in ballast tanks to maintain stability when lightly loaded and discharge it when loaded with cargo. Sediment and organisms drawn in with ballast water at one location can be transported and discharged elsewhere. Scientists estimate ballast discharge has introduced 1/3 of the Great Lakes’ 182 invasive species. Many ships loaded with cargo are considered “No Ballast On Board” (NOBOB), but residual sludge in “empty” tanks can harbor organisms. When a NOBOB vessel unloads and takes up ballast water for stability and can introduce these species.

Wetlands & Water Quality

Conservation Programs & Opportunities

Water Quantity

Wisconsin’s continued efforts to preserve wetland ecosystems and protect water quality include: Wisconsin’s Joint Venture Plan - Since 1992, waterfowl stamp revenues have funded wetland restoration projects. The 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 help landowners protect and restore wetlands. Conservation Reserve Enhancement Program (CREP)Facilitated by the U.S. Department of Agriculture, the DNR and DATCP, CREP offers incentives to farmers who convert agricultural land near water to vegetated buffer zones that absorb runoff.

With global water shortages, growing water demands across the U.S., and mismanagement of deep ground water in regions of Wisconsin, the state may need to strengthen programs that protect our abundant waters. Regulations the state could target to improve conservation include: The Ground Water Protection Act - Current legislation does not require conservation plans for high-capacity wells (pumping more than 100,000 mgd). Wisconsin’s Wellhead Protection Program - This program requires communities to develop conservation plans for new wells, but does not require implementation or offer financial incentives. The 2005 Great Lakes Water Resources Compact - This drafted 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 protective standards than those in the Compact, including stronger conservation measures. The Public Service Commission (PSC) - The PSC sets the rate structure that Wisconsin utilities use to charge customers. It is currently a “declining block rate” structure so the price of water decreases with greater use, which hampers stronger water conservation practices.
Sources: “State Wetland Program Evaluation: Phase II,” Environmental Law Institute, 2006. “Progress in protecting Wisconsin wetlands,” Wisconsin DNR, 2003. “Protecting Wisconsin’s Waters,: A Conservation Report and Toolkit” Midwest Environmental Advocates, Inc., 2006.

Photo: Wisconsin DNR

Wisconsin Priority Watershed and Lake Program Since 1997, the program has funded 86 projects (35 are still active) to improve water quality in waters impaired by non-point pollution.

National Issue: Isolated Wetlands
The U.S. Supreme Court has a history of divided opinions on the protection of wetlands under the Clean Water Act. Recently, in a case concerning two Michigan landowners, the court ruled 5-4 that regulators may have misinterpreted 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 waters or their tributaries. The 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 fill activities. The 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 the CWA - are protected by the state’s Isolated Wetlands Law.
“Our Waters” fact sheets are published by the University of Wisconsin-Milwaukee and the Great Lakes WATER Institute with support from the Brico Fund. Find more information online at www.glwi.uwm.edu/ourwaters or e-mail our-waters@uwm.edu.

Fact sheet updated 05/2007