Blog

By Edward B. Witte and Heather Davis, Witte Davis Law

On April 6, 2026, Wisconsin Governor Tony Evers signed into law 2025 Wisconsin Act 200 and 2025 Wisconsin Act 201, legislation formerly referred to as Wisconsin Assembly Bill 130 and Wisconsin Assembly Bill 131, respectively. Act 200 provides the appropriations that fund the programs created by Act 201; the substantive provisions, including the new per- and polyfluoroalkyl substance (PFAS) grant programs, the expanded Well Compensation Grant Program, and the Spills Law PFAS exemptions discussed in this blog, are all contained in Act 201.

Together, in addition to releasing the $125 million “PFAS Trust Fund,” this legislation will meaningfully reshape liability under the Wisconsin Spills Law (Wis. Stat. § 292.11) for a wide range of parties affected by PFAS contamination.

This legislation is complex and nuanced; its ultimate impact on Wisconsin's PFAS landscape will unfold over years of WDNR implementation and, it appears likely, litigation.

Key constituencies affected include: (i) municipalities, as that term is defined under Wis. Stat. § 292, which uses the term “local governmental units,” or LGUs, (ii) parties who might otherwise bear liability as Spills Law "possessors" of PFAS, (iii) agricultural and industrial landspreaders, (iv) WPDES permit holders, and (v) municipal solid waste landfills.

Taken together, the new law builds on – and in many respects reaffirms – the PFAS regulatory authority the Wisconsin Supreme Court recognized in Wisconsin Manufacturers & Commerce, Inc. v. Wisconsin Natural Resources Board (2025 WI 26) (“WMC”), which confirmed WDNR's broad power to regulate PFAS as a hazardous substance under the Spills Law.

A New Liability Exemption Avenue for LGUs Acquiring PFAS-Contaminated Brownfields

The new law expands the existing LGU liability exemption in § 292.11(9)(e) in a targeted but significant way. Under current law, an LGU is shielded from Spills Law responsibility when it acquires contaminated property through specific involuntary or public-purpose means, including tax delinquency, condemnation, escheat, blight elimination (one of the most frequently used tools), and the like. An arms-length, voluntary purchase has never been among the qualifying methods. The new law, however, adds this as a seventh category: an LGU that purchases a PFAS-contaminated brownfield may now qualify for the exemption, provided the property meets the brownfield definition under s. 238.13(1)(a) and certain conditions are met.

Critically, this new exemption is not self-executing. Unlike the other LGU exemption categories, an LGU seeking protection under the new provision must first enter into an agreement with WDNR ensuring compliance with the conditions that apply to all LGU exemptions, as well as meeting other common criteria. In practice, this means acquisition planning for PFAS brownfields will need to account for the time and resources involved in negotiating a WDNR agreement as a prerequisite to liability protection. How WDNR structures and administers those agreements – and what it will require as conditions in the agreement – remains to be determined.

Passive Receivers and Possessors: Significant New Protections

The heart of this law is a new § 292.11(9)(g), creating ten distinct PFAS-specific exemptions from the Spills Law's core notice, restoration, and cost-recovery obligations. The breadth of these exemptions codifies the significant Spills Law PFAS authority acknowledged in the WMC decision.

The exemptions target parties who received PFAS contamination passively – through no affirmative action – rather than those who arguably caused the PFAS to be discharged into the environment. Key categories include:

Landspreaders and landowners. Persons who spread wastewater or industrial waste contaminated with PFAS under contract to do so and with a license or permit that did not address PFAS, including the agricultural, residential, and commercial property owners upon whose land that spreading occurred, are exempt, provided the spreading was conducted in compliance with permit conditions for non-PFAS substances. This directly addresses one of the most contested PFAS liability questions in Wisconsin, illustrated vividly by the Town of Stella matter, where landowners and contract spreaders initially became Spills Law responsible parties for PFAS in industrial sludge they neither generated nor knew was contaminated.

Off-site contamination recipients. The new law exempts persons who own, lease, manage, or contract for property on which PFAS contamination did not originate. This represents broad protection for downstream property interests where contamination has migrated from another location.

Fire departments. Publicly owned or operated fire departments responding to emergencies requiring PFAS use, or conducting training for such emergencies, are exempt if the response or training complied with applicable federal, state, and local regulations. The exemption notably does not extend to training or testing at public use airports, a limitation that reflects the history of intensive AFFF PFAS foam use in aviation contexts.

Municipal solid waste landfills. Landfills that sent PFAS-contaminated leachate to publicly owned treatment works (POTWs) are also exempt, but such parties must install and operate WDNR-approved leachate pretreatment for PFAS by December 31, 2032. A "meaningful progress" savings clause provides flexibility where pretreatment technology is unavailable or procurement is underway. The exemption does not apply if the PFAS contamination originates from a discharge at the landfill site itself.

WPDES permit holders. Persons holding valid discharge permits under ch. 283 (i.e. WPDES permits) are exempt from Spills Law obligations with respect to PFAS discharged in compliance with permit limits or conditions. This provides much-needed regulatory certainty for permittees who have long faced potential strict liability exposure for PFAS released within their permitted parameters. Notably, Act 201 also directs WDNR to issue a new general WPDES permit that will include conditions for monitoring PFAS in wastewater — a development that WPDES permittees should watch closely as WDNR works through implementation.

All exemptions carry an access obligation: exempt parties must allow WDNR access to the property for activities conducted under ch. 292.

“Causer” Responsible Parties Are Not Protected

The legislation carefully preserves full Spills Law liability for the industrial and manufacturing entities that caused discharges of PFAS into the environment, one of the core Spills Law liability categories. Business owners who own or operate industrial or manufacturing facilities that have used PFAS in their processes, commercial facility operators whose processes caused a PFAS discharge, and permitted industrial waste landspreaders (except those applying waste from animal product or food processing facilities in compliance with qualifying permits) will not be exempt from liability. Succinctly, passive recipients receive protection; causers, including generators and industrial users, do not.

The new law also creates a new definition of parties who can be partially liable: "industrial possessors," which are industrial property owners where PFAS from landspreading ended up on their property, even without any causal role on their part. These parties receive a partial exemption: they are relieved of the obligation to conduct long-term remedial action, but they remain fully responsible for immediate and interim actions to contain or stabilize the discharge. The distinction between immediate, interim, and remedial action is codified in new definitional provisions; how WDNR applies those distinctions in practice will be an important area to watch.

Much Will Depend on WDNR’s Implementation

This PFAS legislation represents a significant achievement – a comprehensive move to calibrate PFAS liability under the Spills Law in a way that is equitable to passive recipients while preserving accountability for those who caused the contamination. The new law also expressly preserves access to the Voluntary Party Liability Exemption, or VPLE, program under § 292.15 (in part, a source of the dispute that culminated in the 2025 WMC decision), ensuring that exempt parties may still pursue full cleanup and achieve VPLE closure.

What remains to be seen are answers to many interpretive questions, including, for example:

·       What constitutes "meaningful progress" toward landfill pretreatment installation?

·       How will WDNR structure the required agreements for LGU brownfield purchases?

·       Where is the precise boundary between remedial action and interim action for industrial possessors?

·       What does "substantial compliance" with a spreading permit mean where PFAS was not addressed?

Questions like these will be answered through WDNR guidance, enforcement discretion, and, in all likelihood, administrative and judicial proceedings that could take years to resolve.

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Ned Witte and Heather Davis are closely engaged with Wisconsin PFAS regulation and WDNR activity throughout this process. Please follow for continued monitoring of this legislation’s enactment and WDNR's implementation roll-out. If you have questions about how these changes may affect your operations, your property, or your obligations under Wisconsin's Spills Law, we welcome the opportunity to discuss them with you.

Edward B. (Ned) Witte and Heather A. Davis are founding partners of Witte Davis Law, a boutique environmental law firm with a national PFAS practice. Witte Davis Law attorneys are licensed in Wisconsin, North Carolina, Kentucky, Oregon, and Texas.