That the permit, if granted, shall be granted and accepted subject to the express condition that the state of Wisconsin, if it shall have the constitutional power, or any municipality, on not less than one year's notice, at any time after the expiration of 30 years after the permit becomes effective, may acquire all of the property of the grantee, used and useful under the permit, by paying therefor, the cost of reproduction in their then existing condition of all dams, works, buildings, or other structures or equipment, used and useful under the permit, as determined by the department, and by paying in addition thereto the value of the dam site and all flowage rights and other property as determined by the department prior to the time the permit was granted, as provided in sub. (1)
, plus the amounts paid out for additional flowage rights, if any, acquired after the valuation made by the department as provided in sub. (1)
; and that the applicant waives all right to any further compensation.
History: 1991 a. 316
Water power permits, condition precedent. 31.095(1)(1)
Except where the stream to be improved forms a boundary line between this and another state, no permit shall be granted or transferred in accordance with this chapter until the applicant has filed with both the department and the public service commission, in addition to all other things required by law to be filed, an agreement setting forth:
That, in the event any electric energy generated under said permit shall be transmitted or conveyed beyond the confines of this state to be there sold, the applicant will furnish to any resident of this state or any corporation domiciled therein electric energy at reasonable rates to be determined by the commission, provided that the commission after public hearing shall find that public convenience and necessity require such service.
That the rate as determined by the commission shall in no event exceed the rate charged by applicant for similar service supplied under like conditions for the energy so transmitted outside the state.
The commission may hold hearings, fix rates and do all things necessary and convenient to carry out the purposes of sub. (1)
Permit not to be valued.
Each and every permit is granted, and shall be conclusively deemed to be accepted, subject to the condition that no element of value whatever shall ever attach to or be allowed for such permit in and of itself in the sale or acquisition of the property used and useful under such permit or otherwise.
Certificate of terms and forfeiture of permits.
The department shall issue to every grantee of a permit a certificate evidencing a grant of the permit allowed by law. Every permit, and every franchise heretofore granted by the legislature, to construct, maintain and operate a dam shall become null and void, unless the dam thereby authorized be completed within 5 years from the time when the permit or the franchise was granted; but the department, for good cause, may extend such time for a period not exceeding 2 years.
Map, profile and plans. 31.12(1)
The grantee of a permit under s. 31.06
, to construct, maintain and operate a dam, before commencing any work of construction authorized by the permit, shall submit to the department a complete map and profile on the scale of not less than one inch per 1,000 feet showing the land that may be affected by the construction and maintenance of the dam, or by any flowage that may be caused thereby, and the outline of the flowage, and such other hydrographic and topographic data as the department may prescribe, and shall also file complete detailed plans and specifications for the proposed dam, including all booms, piers, or other protection works.
The department shall examine the map, profile, plans and specifications; shall hear the grantee thereon and may reject the same or any part thereof, if unsatisfactory or incomplete, or may suggest and require modifications thereof. If the map, profile and plans and specifications are satisfactory and complete, or, if the same shall be modified as suggested and required, the department shall so find and approve the same, and thereupon the grantee may construct the proposed dam in accordance therewith, but the department may, at any time during the construction of any dam and in the interest of the public safety, or of any public rights in navigable waters, authorize, order or require such changes in the plans and specifications and the construction of the dam as shall be necessary.
If the department, in the case of an application for a permit to construct a dam with a capacity of less than 250 hydraulic horsepower at ordinary stage of water, shall find that the information and data furnished in the original or amended application is sufficient, the applicant shall not be required to furnish the additional or more detailed information or data specified in subs. (1)
. The department may, however, at any time during the construction of any such dam authorize, order or require changes in the construction or the method or plan of construction thereof, as provided in sub. (2)
Within 10 days after the completion of any dam the grantee shall file with the department a verified statement that the same was constructed in accordance with the plans and specifications approved by the department; or in case no plans and specifications were required to be filed, then that the dam was constructed in accordance with the description contained in the application.
See also ch. NR 353
and s. NR 335.11
, Wis. adm. code.
Raising or enlarging existing dams. 31.13(1)
If the owner of any existing dam wishes to raise or enlarge the same, the owner may apply to the department for permission so to do, but the permission granted under this section shall be in amendment of any existing franchise, license, or permit previously granted authorizing the construction or maintenance of such dam only to the extent of giving the right so to raise or enlarge such dam, and shall in no way enlarge, alter, abridge or nullify property rights, privileges or obligations as to such dam, or the maintenance or operation thereof theretofore acquired or incurred. In addition to the requirements of s. 31.05 (1)
, the owner's application shall state:
The year in which the dam was completed.
If constructed by legislative permission, a statement of the act of the legislature authorizing the same.
A detailed description of the dam, including the maximum height or head of water that may be maintained thereby and the kind and character of material of which the same is constructed.
The purpose for which such dam has been and is now used and the purpose for which it is proposed to use the same.
The approximate amount of hydraulic power developed thereby.
Such additional information of any nature whatsoever as the department may require.
Upon receipt of an application under this section procedure shall be had substantially as required by s. 31.06
; and if the department finds that the dam, raised or enlarged or rebuilt, or rebuilt, enlarged and raised in accordance with the application, will not materially obstruct existing navigation or violate other public rights, and will not endanger life, health or property, and that the applicant has complied with s. 31.14 (2)
, permission is hereby granted to raise or enlarge or rebuild, or rebuild, enlarge and raise the same in accordance with the application.
History: 1991 a. 316
See also ch. NR 305
, Wis. adm. code.
Proof of ability to maintain dams required. 31.14(1)
It is the policy of this section to preserve public rights in navigable waters, including those created by dams, and to provide a means of maintaining dams and the developments which have been made adjacent to the flowage of such dams.
Unless the applicant furnishes to the department proof of ability to operate and maintain the dam in good condition, either by the creation of a special assessment district under ss. 31.38
, or by any other means which in the department's judgment will give reasonable assurance that the dam will be maintained for a reasonable period of time not less than 10 years; or
If a majority of the municipalities in which 51% or more of the dam or flowage is or will be located files with the department, prior to the granting of the permit, their objections to the granting of such permit in the form of resolutions duly adopted by the governing bodies of such municipalities.
(3) Subsection (2)
does not apply if the applicant complies with each of the following requirements:
Furnishes proof satisfactory to the department that the applicant owns or has an enforceable option to purchase all the land which is or will be flowed by the impoundment, together with the shoreline and an immediately adjacent strip of land at least 60 feet in width, but the department may in a particular case permit a narrower strip where the 60-foot minimum is impractical and may, in furtherance of the policy stated in sub. (1)
, require ownership of a wider strip.
Files with the department a writing in such form as the department requires in which the applicant agrees that following the initial filling of the proposed pond the applicant will not convey the dam to another without first obtaining department approval. The department may require from an applicant who does not have the power of eminent domain a bond or other reasonable assurances that the applicant will adhere to such agreement.
Furnishes proof satisfactory to the department that the applicant has dedicated or will dedicate a parcel of land for public access to the impounded waters.
No person may assume ownership of a dam after October 21, 1961, or the ownership of that specific piece of land on which a dam is physically located after April 27, 1982, without first complying with sub. (2)
. The transfer of the ownership of a dam or the ownership of a specific piece of land on which a dam is physically located made without complying with sub. (2)
is void unless a permit to abandon the dam was granted under s. 31.185
or unless the transfer occurred by operation of law. Every person who accepts ownership by operation of law is subject to this chapter.
For the purpose of implementing the policy stated in sub. (1)
, the department may by rule require all or specified classes of persons operating a dam for profit to create a fund or reserve to be used for major repairs, reconstruction or removal of the dam when necessary. Such rules shall prescribe the manner in which such fund or reserve is to be created, maintained and expended. This subsection shall not apply to a person who has the power of eminent domain.
Obligations of owners of bridges and dams. 31.18(1)(1)
The grantee of any permit, the owner of any dam constructed before permits were required by law, and the owner of any bridge at the city of Portage or at any point above that city, over the Wisconsin River, shall maintain and operate all such dams, slides, chutes, piers, booms, guide booms, weirs, tunnels, races, flumes, sluices, pits, fishways, locks, boat hoists, marine railways and all other equipment required by the department for the protection of public rights in such waters, and for the preservation of life, health and property, in good repair and condition, and shall not willfully, or otherwise, injure, remove or destroy the same, or any part thereof, unless the department shall have approved such removal or destruction in writing. In the event of emergency the department shall have power, pending investigation and hearing, to order the repair of any dam without notice and hearing.
The owner of any such dam shall open such slide or chute for the passage of any craft or material lawfully navigating the stream, whenever requested so to do by the person in charge of such navigation, without charge or toll therefor. But such owner shall be under no obligation to otherwise aid passage through the slide or chute.
Except when emergency shall require the same for the protection of life, health or property, no substantial alteration or addition shall be made to any dam heretofore or hereafter constructed without obtaining an order therefor from the department, which order may be issued only after an investigation and upon a finding that the proposed alterations or additions will not impair the sufficiency of such dam or any existing public rights in such waters.
The department shall in the interest of public rights in navigable waters, or to promote safety and protect life, health and property, require the grantee of any permit, under this chapter, or of any permit or authorization heretofore provided for by legislative enactment, prior to flowing any lands by the construction of a dam thereunder, to remove from such lands all or any portion of the standing and fallen timber and all or any portion of the brush. Provided that in cases where the application for permit proposes construction of a dam for water reservoir or water storage purposes, and not for the purpose of operating a hydroelectric generating plant, the nature, extent and time for such removal shall be determined prior to the granting of a permit, except that subsequent to the granting of a permit the department may make such modification in the removal requirements as may be in the public interest and which will not materially alter the economics of the project; and in making such original determination or any modification thereof the economic need for the project shall be considered.
See also ch. NR 305
, Wis. adm. code.
Permits to abandon dams. 31.185(1)
No owner of any dam may abandon or remove or alter the dam without first obtaining a permit from the department. No person may transfer ownership of a dam or the ownership of the specific piece of land on which a dam is physically located without first obtaining a permit from the department.
An application for a permit to abandon, remove or alter a dam or an application for a permit to transfer ownership of a dam or the ownership of a specific piece of land on which a dam is physically located shall be made to the department upon forms prescribed by it and shall contain the owner's name and address, a brief description of the dam and its location and other information as the department requires for the purpose of enabling it to act on the application.
(3) Section 31.06
governs procedure upon all applications hereunder.
Prior to the hearing the department shall have its staff make its own investigation of the dam and, on the basis of such investigation, shall make recommendations as to the type of requirements, if any, which it would impose on the applicant under sub. (5)
as a condition to granting the permit. Such recommendations shall be presented at the hearing. If no one registers opposition to the application at the hearing, the department shall grant the permit, subject to such conditions as it deems necessary under sub. (5)
. If someone registers opposition to the abandonment at the hearing and such opposition is not withdrawn, the department shall defer action on the application for a period of 120 days after the hearing. Within a reasonable time after the expiration of such period, the department shall deny the permit, or grant the permit, subject to such conditions as it imposes under sub. (5)
, unless, within such 120-day period, one or more municipalities or other persons or associations have agreed to acquire ownership of the dam and have furnished satisfactory proof of intent to comply with s. 31.14 (2)
As a prerequisite to the granting of a permit under this section, the department may require the applicant to comply with such conditions as it deems reasonably necessary in the particular case to preserve public rights in navigable waters, to promote safety, and to protect life, health and property.
History: 1973 c. 90
; 1981 c. 246
See also ch. NR 305
, Wis. adm. code.
Sub. (5) is not directed to the removal of a dam by the DNR. It creates a different procedure for a private party who seeks to remove a dam. Froebel v. DNR, 217 Wis. 2d 652
, 579 N.W.2d 774
(Ct. App. 1998).
The department may remove or cause to be removed, in such manner as it deems fit, old and abandoned dams in streams in this state, upon giving 60 days' notice in writing to the owner thereof, if the owner can be found. If the owner of the dam is unknown or cannot, by due diligence, be found, the department shall publish a class 3 notice, under ch. 985
, in the county in which the dam is situated.
Whenever the department determines that the conservation of any species or variety of wild animals will be promoted thereby, the department may maintain and repair any dam located wholly upon lands the title to which is in the state either as proprietor or in trust for the people after giving due consideration to fixing the level and regulating the flow of the public waters.
History: 1983 a. 27
; Stats. 1983 s. 31.187; 1991 a. 316
This section, and not s. 31.185 or 283.31, governs removal of a dam by the DNR. There is no statutory authority to grant injunctive relief against the DNR when it causes damages during a dam removal. Froebel v. DNR, 217 Wis. 2d 652
, 579 N.W.2d 774
(Ct. App. 1998).
Inspection of dams; orders. 31.19(1)
Determination of dam size.
For the purposes of this section, a dam is considered to be a large dam if:
It has a structural height of 25 feet or more and impounds more than 15 acre-feet of water; or
It has a structural height of more than 6 feet and impounds more than 50 acre-feet of water.
Except as provided under par. (b)
, at least once every 10 years the department shall conduct a detailed inspection of each large dam which is maintained or operated in or across navigable waters.
Exemption for federally inspected dams.
An inspection under par. (a)
is not required if the dam is inspected periodically by or under the supervision of a federal agency in a manner which is acceptable to the department and if the results of each inspection are made available to the department.
(3) Inspection upon complaint.
If the department receives a complaint in writing from the mayor of a city, supervisor of a town or the president or trustee of a village which alleges that a dam maintained or operated in or across any navigable or nonnavigable waters or a reservoir is in an unsafe condition or if the department receives a complaint in writing from a person which alleges that the person's property or any property under the person's control is endangered by a dam or reservoir, the department shall investigate or cause an investigation to be made of the complaint.
(4) Discretionary inspection.
The department may inspect or cause an inspection to be made of any dam or reservoir.
(5) Order; reduction in water level.
If the department finds pursuant to an investigation that a dam or reservoir is not sufficiently strong or is unsafe and that the dam or reservoir is dangerous to life or property, it shall determine what alterations, additions or repairs are necessary and shall order the owner or person having control of the dam or reservoir to cause those alterations, additions or repairs to be made within a time specified in the order. If the department finds pursuant to an investigation that a dam or reservoir is not sufficiently strong or is unsafe and that the dam or reservoir is dangerous to life or property, it may cause to be drawn off, in whole or in part, the water in the reservoir or impounded by the dam if it determines that this action is necessary to prevent impending danger to persons or property.
See also ch. NR 333
, Wis. adm. code.
Transfer of permit. 31.21(1)(1)
No transfer or assignment of any permit granted under s. 31.06
shall be of any effect whatsoever unless it is in writing and a certified copy thereof within 10 days after the execution thereof, is filed with the department and unless such transfer or assignment is approved in writing by the department; and no such transfer or assignment shall be approved by the department except after an investigation and a finding that the transfer or assignment is not made or intended to be made for a purpose or to create a condition prohibited by s. 196.665
and that the transferee or assignee has complied with s. 31.14 (2)
. No permit shall be transferred or assigned to a foreign corporation, nor shall any permit granted to a municipality be assigned or transferred to any person, otherwise than as security for a loan made in good faith and concurrently with and as consideration for such transfer or assignment, and no foreign corporation shall have power to acquire title to any such permit, nor shall any person have power to acquire title to a permit granted to or acquired by a municipality, otherwise than in the enforcement of such security, and in no case shall any such foreign corporation hold title to or operate under any such permit for a period longer than 3 years.
No municipality shall make or execute any lease or other contract with any person, firm, or corporation for the sale or use of hydraulic or hydroelectric power developed or generated by such municipality under a permit granted under s. 31.06
for a period longer than 10 years, unless the same shall be first approved by the department, after investigation and upon a finding that such lease or contract will not impair or interfere with the purpose or uses for which such dam was acquired or constructed by the municipality.
See also ch. NR 305
, Wis. adm. code.
Forfeitures; private bridges and dams. 31.23(1)
Every person who constructs or maintains in navigable waters or aids in the construction or maintenance therein of any bridge or dam not authorized by law, shall forfeit for each such offense, and for each day that the free navigation of such waters are obstructed by such bridge or dam a sum not exceeding $50.
Every person or corporation violating any of the provisions of this chapter, other than those mentioned in sub. (1)
, or violating any order made by the department pursuant to this chapter, shall forfeit for each such violation not more than $1,000.
There shall be no forfeiture under this section in any case where a bridge is built by a private citizen across any navigable waters having a width of 35 feet or more, providing such bridge does not impair the rights of the public for purposes of navigation or fishing.
No such bridge shall be maintained unless its construction shall first be approved by the department after public hearing and on not less than 10 days' written notice to the applicant and to the county and town clerks of the county and town wherein all or a portion of the proposed bridge is to be located.
Each applicant who shall apply to the department for a permit to construct any such bridge shall state in the application the proposed location of the bridge, the depth of the water to be spanned, the materials to be used in the construction of the bridge, the plans of the proposed bridge, together with such other facts as the department may require.
Every such bridge used by the public shall at all times be maintained in a safe condition by the owners of the land abutting the approaches of the bridge, and the owners shall make such repairs as are reasonably necessary therefor. The town shall not become liable for any damages resulting from the insufficiency or want of repairs of such bridge. If the department upon inspection finds that such bridge is in need of repairs, it shall notify the owners responsible for the repairs thereof, and also send a copy of such notice to the town board, to make all repairs as are reasonably necessary therefor. If such repair work as ordered by the department is not commenced within 60 days after receipt of such notice, the department may close such bridge until it is so repaired. Whenever any owner responsible for such bridge shall fail to repair or maintain the bridge in a good and safe condition, after having been notified so to do by the department for 60 days after such notification, such town board upon its own initiative may make such required repairs on such bridge, and the cost thereof shall be paid by the owners responsible therefor, and the town clerk shall enter such amount of the cost of repairs upon the next tax roll of the town.
History: 1991 a. 316
See also chs. NR 301
, and 320
, Wis. adm. code.
Sub. (1) provides no substantive rule for which a violation would initiate the abatement procedures under s. 31.25. The remedy provided is limited to the forfeiture provided under sub. (1). Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 Wis. 2d 838
, 203 N.W.2d 369
Every dam, bridge or other obstruction constructed or maintained in or over any navigable waters of this state in violation of this chapter, and every dam not furnished with a slide, chute or other equipment prescribed by the department, is hereby declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any citizen thereof.
Section 31.25 (1) provides no substantive rule for which a violation would initiate the abatement procedures under this section. Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 Wis. 2d 838
, 203 N.W.2d 369
Dam removal; opportunity for hearing.