AB514: Bill Text

NAVIGABLE WATERS REGULATION

The bill:

Reorganizes all of the statutes that provide for permits or approvals under subch. II of ch. 30, so that these statutes are in a consistent format, use consistent terminology and have consistent decision-making standards where appropriate.

Requires the department of natural resources (DNR) to develop and make publicly available maps and data that show the results of its determinations of navigability.

Directs the DNR to develop rules that describe the methods it uses for making determinations of navigability.

Requires DNR to promulgate rules that describe the public interest and public rights and the rights of riparian owners for purposes of decisions to approve or deny permits and approvals affecting navigable waters under subch. II of ch. 30.

Codifies the supreme court cases that set forth the kinds of evidence that can be used to determine if a lake or stream is navigable.

Modifies provisions regarding farm drainage ditches to provide an exemption from regulation, rather than an exemption from the definition of "navigable", and clarifies the exemption so that it only applies to projects for an agricultural purpose.

Creates a procedure to request a hearing if the DNR issues an order modifying or rescinding a permit or contract.

Authorizes DNR to issue a permit for a deposit in navigable waters if, among other things, the deposit will promote public rights and interests in navigable waters.

Authorizes additional "short form" permits to simplify the approval process for several of the permit statutes.

Modifies the current notice and hearing process by allowing the DNR to issue a denial directly after receiving a complete permit or contract application.

Requires a person who wishes to challenge a permit or contract in a contested case hearing to make a more detailed showing of the facts and legal standards that support the objection, and requires DNR to find that those facts raise a reasonable doubt that the project, as proposed, complies with the applicable standards in subch. II.

Authorizes mediation between the applicant and persons with an interest in a permit or contract if the applicant, DNR and the other interested parties agree to this process.

STATE BOATING REGULATION

The bill:

Eliminates the authority of DNR to change statutory regulations by administrative rule in order to conform to federal regulations; and requires DNR to submit legislation to conform statutes to federal regulations.

Consolidates and makes consistent the provisions regarding equipment and operation of patrol boats.

Updates references to activities that involve being towed behind a boat.

Updates federal cross-references that are incorrect, and adds federal cross-references where current statutes have a nonspecific reference to federal law.

Extends the current prohibition on retail sale of a boat made in this state that does not comply with noise limits so that this prohibition also applies to retail sale of boats made elsewhere.

Creates a statutory exemption from the requirement to carry a personal flotation device for racing shells, sculls, kayaks and canoes, to duplicate the current exemption in federal law.

Authorizes but does not require that a parent or guardian be liable for a minor's actions in boat operation; violations by a minor are currently deemed to be a violation by the parent or guardian.

Permits operation of a boat within 100 feet from a skin diver's flag or swimmer if there is not sufficient room beyond 100 feet from the flag to maneuver, but boat operation may not exceed slow-no-wake speed.

LOCAL BOATING REGULATION

The bill:

Authorizes a town, village, or city to enact boating ordinances of clearly local concern, even if another local governmental unit (county, lake district, or town sanitary district) has adopted an ordinance applicable to the same lake or stream.

Expands county authority so that a county may enact boating ordinances for an inland lake if authorized to do so by the towns, villages, or cities surrounding the lake or if those towns, villages, or cities do not enact a boating ordinance.

Provides that counties may enact boating ordinances for outlying waters contiguous to the county.

Lists state boating regulations that require strict conformity in local ordinances and sets standards for other local ordinances which are required by statute to be consistent with state regulations.

Expands the scope of DNR review so that it applies to all local boating ordinances.

Authorizes a sheriff or a town, village, or city to issue emergency regulations applicable to boating.

AB514, s. 1 Section 1. 25.29 (1) (a) of the statutes is amended to read:

AB514,7,5 25.29 (1) (a) Except as provided in ss. 25.293 and 25.295, all moneys accruing to the state for or in behalf of the department under chs. 26, 27, 28, 29, 169, and 350, subchs. I and VI of ch. 77, and ss. 23.09 to 23.31, 23.325 to 23.42, 23.50 to 23.99, 30.50 to 30.55 30.578, 70.58, 71.10 (5), 71.30 (10), and 90.21, including grants received from the federal government or any of its agencies except as otherwise provided by law.

AB514, s. 2 Section 2. 28.11 (12) of the statutes is amended to read:

AB514,7,20 28.11 (12) Enforcement. If at any time it appears to the department that the lands are not being managed in accordance with violation of this section it , the department shall so advise the county forestry committee and the county clerk. If the condition persists, the department may proceed against the persons responsible for such noncompliance under s. 30.03 (4) the possible violation by ordering a hearing under ch. 227. The department may request that the hearing examiner issue an order directing the responsible persons to perform or refrain from acts in order to fully protect the county forest lands. If any person fails or neglects to obey an order, the department may request the attorney general to institute proceedings for the enforcement of the order in the name of the state. The proceeding shall be brought in the manner and with the effect of proceedings under s. 111.07 (7). No penalty may be imposed for violating a hearing examiner's order under this subsection, but the violation of a judgment enforcing the order may be punished in civil contempt proceedings.

AB514, s. 3 Section 3. Subchapter I (title) of chapter 30 [precedes 30.01] of the statutes is repealed and recreated to read:

AB514,7,23 chapter 30

AB514,7,25 subchapter I definitions

AB514, s. 4 Section 4. 30.01 (1b) of the statutes is renumbered 30.18 (1) (a).

AB514, s. 5 Section 5. 30.01 (1h) of the statutes is created to read:

AB514,8,3 30.01 (1h) "Contested case" has the meaning given in s. 227.01 (3).

AB514, s. 6 Section 6. 30.01 (1hm) of the statutes is created to read:

AB514,8,5 30.01 (1hm) "Contested case hearing" means a hearing of a contested case.

AB514, s. 7 Section 7. 30.01 (1m) of the statutes is renumbered 30.50 (3m).

Note: The definition of "designated mooring area" is moved to the boating subchapter, where that term is used.

AB514, s. 8 Section 8. 30.01 (1mp) of the statutes is created to read:

AB514,8,9 30.01 (1mp) "Division of hearings and appeals" means the division of hearings and appeals in the department of administration.

AB514, s. 9 Section 9. 30.01 (1nq) of the statutes is created to read:

AB514,8,11 30.01 (1nq) "Environmental pollution" has the meaning given in s. 299.01 (4).

AB514, s. 10 Section 10. 30.01 (1nw) of the statutes is created to read:

AB514,8,14 30.01 (1nw) "Farm drainage ditch" means any artificial channel that drains water from lands that are used for agricultural purposes.

AB514, s. 11 Section 11. 30.01 (1t) of the statutes is renumbered 30.266 (1) (a).

Note: The definition of "flotation device" is relocated to s. 30.266, where the term is used.

AB514, s. 12 Section 12. 30.01 (3e) of the statutes is renumbered 30.50 (5g).

Note: The definition of "mooring" is relocated to the boating statutes, where the term is used.

AB514, s. 13 Section 13. 30.01 (3m) of the statutes is renumbered 30.50 (5m).

Note: The definition of "mooring anchor" is moved to the boating statutes, where the term is used.

AB514, s. 14 Section 14. 30.01 (3s) of the statutes is renumbered 30.50 (5r).

Note: The definition of "mooring buoy" is moved to the boating statutes, where the term is used.

AB514, s. 15 Section 15. 30.01 (6b) of the statutes is repealed.

Note: The definition of "substantive written objection" is repealed. This term is is used in s. 30.135, regarding water ski platforms and water ski jumps: a substantive written objection is required to obtain a contested case hearing to challenge issuance of a permit for these structures. However, the DNR determines by rule the reasons that will support a substantive written objection under s. 30.135, making the definition unnecessary for purposes of that section. The only other use of this term is in the general notice and hearing provisions of current s. 30.02, which are substantially modified in this bill and moved to s. 30.245. The new notice and hearing provision contains additional requirements for objections to a permit or approval that are sufficient to obtain a contested case hearing, rendering this definition unnecessary for purposes of the general notice and hearing provision.

AB514, s. 16 Section 16. 30.01 (6d) of the statutes is renumbered 293.01 (27m).

Note: The definition of "surplus water" is only used in s. 30.18. The substance of this definition is incorporated into s. 30.18 (5) (a) 2. The definition is moved to the chapter dealing with metallic mining, where the definition is used by cross-reference.

AB514, s. 17 Section 17. 30.01 (7m) of the statutes is renumbered 30.18 (1) (c).

Note: The definition of "water loss" is relocated to s. 30.18, where the term is used.

AB514, s. 18 Section 18. 30.01 (9) of the statutes is renumbered 30.18 (1) (d).

Note: The definition of "withdrawal" is relocated to s. 30.18, where that term is used.

AB514, s. 19 Section 19. 30.01 (10) of the statutes is renumbered 30.266 (1) (b).

Note: The definition of "Wolf River municipality" is relocated to where that term is used. The new numbering of this statute is s. 30.266 as proposed by this bill.

AB514, s. 20 Section 20. 30.015 of the statutes is renumbered 30.251 and amended to read:

AB514,9,15 30.251 Time limits for issuing permit determinations. In issuing permits under this chapter subchapter, the department shall initially determine whether a complete application for the permit has been submitted and, no later than 60 days after the application is submitted, notify the applicant in writing about the initial determination of completeness. If the department determines that the application is incomplete, the notice shall state the reason for the determination and the specific items of information necessary to make the application complete. An applicant may supplement and resubmit an application that the department has determined to be incomplete. There is no limit on the number of times that an applicant may resubmit an application that the department has determined to be incomplete under this section. The department may not demand items of information that are not specified in the notice as a condition for determining whether the application is complete unless both the department and the applicant agree or unless the applicant makes material additions or alterations to the project for which the application has been submitted.

AB514, s. 21 Section 21. 30.02 of the statutes is repealed.

Note: Section 30.02 contains the provisions for notice of hearing under ch. 30. These provisions are repealed here and recreated, in substantially modified form, in s. 30.245.

AB514, s. 22 Section 22. 30.025 of the statutes is repealed.

Note: The procedure in s. 30.025 substantially duplicates the procedure in s. 196.491 (3). It appears that the procedure in s. 196.491 (3) is used rather than the procedure in s. 30.025, so the latter procedure is repealed.

AB514, s. 23 Section 23. 30.027 of the statutes is renumbered 30.255 and amended to read:

AB514,10,14 30.255 Lower Wisconsin State Riverway. For activities in the Lower Wisconsin State Riverway, as defined in s. 30.40 (15), no person obtaining the department shall include a condition in a permit issued under subchs. I, II or V this subchapter that the person obtaining the permit may not start or engage in the activity for which the permit was issued unless the person obtains any permit that is required for the activity under s. 30.44 or 30.445.

Note: The only permits under subch. V are for motorboat races and moorings. Neither of these activities appear to require a permit under s. 30.44 or 30.445. Therefore, the reference to subch. V is deleted.

This provision is rewritten as a permit condition for a permit issued under ch. 30. This shifts the burden to DNR to condition its issuance of a ch. 30 permit upon obtaining any additional permit that may be required if the activity is located in the Lower Wisconsin State Riverway.

AB514, s. 24 Section 24. 30.03 (title) of the statutes is repealed.

AB514, s. 25 Section 25. 30.03 (2) of the statutes is renumbered 30.97 and amended to read:

AB514,11,2 30.97 Enforcement of forfeitures; abatement of nuisances. The district attorney of the appropriate county or, at the request of the department, the attorney general shall institute proceedings to recover any forfeiture imposed or to abate any nuisance committed under this chapter or ch. 31.

Note: This bill deletes the cross-reference to ch. 31 and replicates current s. 30.03 (2) as s. 31.93.

AB514, s. 26 Section 26. 30.03 (3) of the statutes is repealed.

Note: The current text of s. 30.03 (3) is as follows: "All forfeitures shall be recovered by civil action as provided in ch. 778 and when collected shall be paid directly into the state treasury.". This provision is unnecessary.

AB514, s. 27 Section 27. 30.03 (4) (a) of the statutes is renumbered 30.96 (1) and amended to read:

AB514,11,18 30.96 (1) If the department learns of a possible violation of the statutes relating to navigable waters or a possible infringement of the public rights relating to navigable waters, and the department determines that the public interest may not be adequately served by imposition of a penalty or forfeiture, the department may proceed as provided in this paragraph subsection, either in lieu of or in addition to any other relief provided by law. The department may order a hearing under ch. 227 concerning the possible violation or infringement, and may request the hearing examiner to issue an order directing the responsible parties to perform or refrain from performing acts in order to fully protect the interests of the public in the navigable waters. If any person fails or neglects to obey an order, the department may request the attorney general to institute proceedings for the enforcement of the department's order in the name of the state. The proceedings shall be brought in the manner and with the effect of proceedings under s. 111.07 (7).

AB514, s. 28 Section 28. 30.03 (4) (b) of the statutes is renumbered 30.96 (2) and amended to read: