Center for Land Use Education

The Land Use Tracker
Volume 2, Issue 1
Summer 2002

IN THIS ISSUE:

	An Innovative Tool for Managing Rural Residential Development: A Look at Conservation Subdivisions
	Wisconsin Supreme Court Ruling:  Agricultural Use Value Assessment
	COURT OF APPEALS UPHOLDS RULES FOR PRIVATE ONSITE WASTEWATER TREATMENT SYSTEMS
	IMPERVIOUS SURFACE - AN ENVIRONMENTAL INDICATOR
	Calendar of Events
	Article Submissions
	Our Staff
	what's new at the center
	Contact Us by E-mail
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Court of Appeals Upholds Rules for Private Onsite Wastewater Treatment Systems

by Lynn Markham
Land Use Specialist, Center for Land Use Education

In a decision issued May 9, 2002¹, the Wisconsin Court of Appeals upheld the Department of Commerce (DOC) revised rules for private onsite wastewater treatment systems (POWTS), known as Comm. 83.  The controversial rules, which went into effect July 1, 2000, attempt to balance the protection of drinking water with interests in developing lands previously not suitable for POWTS by reducing the required depth of suitable soil for waste disposal and introducing new technologies.  One result of the revised Comm. 83 is that POWTS are now allowed for some sites that previously required a holding tank.

Comm. 83 was challenged by the League of Wisconsin Municipalities, 1000 Friends of Wisconsin, Municipal Environmental Group, Citizens for a Better Environment, River Alliance of Wisconsin, Inc., and the Town of Caledonia.  According to 1000 Friends of Wisconsin, the DOC and developers across the state lobbied for the revision of Comm. 83 that opens nine million acres � or 25% of the Wisconsin landscape � to increased development pressure.²  Dan Thompson, executive director of the League of Wisconsin Municipalities observed �Land that wasn�t worth much because it didn�t test right for a conventional septic system under the old rule is worth a lot of money now because it�s buildable with one of the new systems.  Our concern with the rule is strictly a land-use issue.�³  Caledonia Administrator Mark Luberda said, �We learned from the suit that if we want to control zoning you need to use your zoning laws and not the plumbing code.�⁴

The court did not address the development and land use issues involved with Comm. 83.  It did hold that the DOC has broad authority to grant variances from the rules in response to a petition if the provisions are determined to be �unjust or unreasonable� when approving new systems.⁵  The court also reaffirmed that POWTS are not required to comply with the groundwater standard for nitrates developed by the Department of Natural Resources, based on a statutory exemption.⁶ 

This decision was in spite of the fact that POWTS can contribute significant amounts of nitrate to groundwater and local drinking water wells.  On a statewide basis, approximately 90% of the nitrate leached to groundwater comes from agricultural sources, while 10% comes from POWTS.⁷  However, this 10% contribution can be very important in local areas.  Research in two Central Wisconsin subdivisions located on sandy soils found that 80% of the nitrate in shallow groundwater originated from POWTS, and 20% from lawns.  Lot sizes of at least 1.5 acres were needed to prevent groundwater from exceeding the drinking water standard for nitrate.⁸  A 1994 study by the Wisconsin Geological and Natural History Survey and the Department of Health and Family Services estimated that 9 to 14% of private water wells in Wisconsin exceed the safe drinking water nitrate standard.⁹

On June 10, 2002 some of the parties in the case asked the Wisconsin Supreme Court to review the May 9, 2002 Court of Appeals decision to determine:

• whether the DOC can issue variances without proof that particular plumbing standards are unjust or unreasonable.

• whether the DOC's "cost-benefit" analysis was permissible as a basis for deciding to exempt nitrate discharges from Comm. 83.

Currently municipalities are not allowed to adopt additional standards to provide greater groundwater protection.¹⁰  However, municipalities retain flexibility in the following two areas:

• Local governments may prohibit or limit the installation and use of holding tanks, constructed wetlands and evapotranspiration beds.¹¹ 

• To allow time to plan for development in areas where it was economically impractical prior to the rule revision, local governments may, by ordinance, deny the issuance of POWTS permits for some technologies for new construction sites until January 1, 2003.¹²  As described below, Portage County has taken this approach. 

Portage County Comm. 83 Case Study
According to Mike Hansen, Portage County Senior Planner, the Natural Resources Conservation Service conducted a review of soil suitability for POWTS under Comm. 83. The review showed that enacting Comm. 83 in Portage County would increase the probability of siting a POWTS as follows:

• 58,000 acres would change from very low to moderate probability

• 3,400 acres would change from low to moderate probability

• 1,100 acres would change from low to high probability

• 95,000 acres would change from medium to high probability

• 368,000 acres would not change

 Thus, 157,000 acres or 30% of the land in Portage County would have an increased probability of development if the Comm. 83 rules were in place without additional planning for land uses.  In response to this information in 2000, the Portage County Board adopted a moratorium on issuing permits for some types of POWTS under Comm. 83 until Jan. 1, 2003 to allow towns time to develop new planning and zoning policies to prohibit building in locations with severe limitations.  Since comprehensive plans in Portage County will not be finished by this date, interim rules for POWTS permitting in Portage County will be developed soon.

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