If par. (a)
applies, the department may not require the applicant for the proposed utility facility to undertake further analysis of any utility facility alternatives, including an analysis of alternative methods of meeting the need for the project or alternative locations, sites, or routes in order to satisfy the criteria under sub. (3)
. The department may identify adjustments that may be required to address permitting issues within the location, site, or route approved by the commission under s. 196.49
or 196.491 (3)
(3) Permit Issuance.
The department shall issue, or authorize proceeding under, the necessary permits if it finds that the applicant has shown that the proposal:
Complies with environmental statutes administered by the department and rules promulgated thereunder, and federal environmental standards which the department has authority to enforce.
(3m) Environmental assessments for certain projects.
The department is not required to prepare an environmental impact statement under s. 1.11 (2) (c)
for the construction of a project that is specified in s. 196.491 (4) (c) 1.
and for which one or more permits are required, but shall prepare an environmental assessment regarding the construction if the department's rules require an environmental assessment.
(4) Permit conditions.
The permit may be issued, or the authority to proceed under a permit may be granted, upon stated conditions deemed necessary to assure compliance with the criteria designated under sub. (3)
. The department shall grant or deny the application for a permit for the utility facility within 30 days of the date on which the commission issues its decision under s. 196.49
or 196.491 (3)
(5) Exemption from certain procedures. Sections 30.208
do not apply to an application for any permit under this section.
Lower Wisconsin State Riverway.
For activities in the Lower Wisconsin State Riverway, as defined in s. 30.40 (15)
, no person obtaining a permit under subchs. I
may 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
History: 1989 a. 31
Enforcement of forfeitures; abatement of nuisances; infringement of public rights. 30.03(2)
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
All forfeitures shall be recovered by civil action as provided in ch. 778
and when collected shall be paid directly into the state treasury.
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, 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)
No penalty may be imposed for violation of a hearing examiner's order under this subsection, but violation of a judgment enforcing the order may be punished in civil contempt proceedings.
Under sub. (4), the DNR has jurisdiction to pursue any "possible violation" of the public trust doctrine as embodied in ch. 30. ABKA Limited Partnership v. DNR, 2002 WI 106, 255 Wis. 2d 486
, 648 N.W.2d 854
The DNR may enforce the terms of lakebed grants under sub. (4) (a) as long as the enforcement does not conflict with s. 30.05. 78 Atty. Gen. 107
Applicability of chapter to municipally-owned submerged shorelands.
Nothing in this chapter relative to the establishment of bulkhead or pierhead lines or the placing of structures or deposits in navigable waters or the removal of materials from the beds of navigable waters is applicable to submerged shorelands in Lake Michigan, the title to which has been granted by the state to a municipality.
Exemption from certain permit requirements.
Notwithstanding ss. 30.12
, the city of Oak Creek may not be required to remove any structure or concrete or other deposit that was placed in Crayfish Creek in the city of Oak Creek before June 1, 1991, and may continue to maintain the structure, concrete or deposit without having a permit or other approval from the department.
History: 1995 a. 455
Waiver of certain provisions of this chapter.
The department, by rule, may waive the applicability to specified navigable waters of the United States of all or part of those provisions of this chapter which relate to the establishment of bulkhead or pierhead lines or the placing of structures or deposits in navigable waters or the removal of materials from the beds of navigable waters. The department may promulgate such rule only after it has entered into an agreement with the appropriate federal agency wherein it is agreed that the comparable federal law will be enforced on the waters in question in lieu of the state law which is being waived. The objective of such agreement shall be to avoid duplication of administration with respect to navigable waters over which this state and the U.S. government have concurrent jurisdiction, in those situations wherein administration by a single governmental agency will tend to avoid confusion and the necessity of obtaining permits from both the state and federal governments by those who are subject to the law and at the same time will adequately protect the public interest. The agreement may contain such further provisions as are designed to achieve this objective.
History: 1981 c. 390
; 1985 a. 332
s. 251 (1)
Declarations of navigability. 30.10(1)
All lakes wholly or partly within this state which are navigable in fact are declared to be navigable and public waters, and all persons have the same rights therein and thereto as they have in and to any other navigable or public waters.
Except as provided under sub. (4) (c)
, all streams, sloughs, bayous and marsh outlets, which are navigable in fact for any purpose whatsoever, are declared navigable to the extent that no dam, bridge or other obstruction shall be made in or over the same without the permission of the state.
(3) Enlargements or improvements in navigable waters.
All inner harbors, turning basins, waterways, slips and canals created by any municipality to be used by the public for purposes of navigation, and all outer harbors connecting interior navigation with lake navigation, are declared navigable waters and are subject to the same control and regulation that navigable streams are subjected to as regards improvement, use and bridging.
This section does not impair the powers granted by law under s. 30.1235
or by other law to municipalities to construct highway bridges, arches, or culverts over streams.
The boundaries of lands adjoining waters and the rights of the state and of individuals with respect to all such lands and waters shall be determined in conformity to the common law so far as applicable, but in the case of a lake or stream erroneously meandered in the original U.S. government survey, the owner of title to lands adjoining the meandered lake or stream, as shown on such original survey, is conclusively presumed to own to the actual shorelines unless it is first established in a suit in equity, brought by the U.S. government for that purpose, that the government was in fact defrauded by such survey. If the proper claims of adjacent owners of riparian lots of lands between meander and actual shorelines conflict, each shall have his or her proportion of such shorelands.
Notwithstanding any other provision of law, farm drainage ditches are not navigable within the meaning of this section unless it is shown that the ditches were navigable streams before ditching. For purposes of this paragraph, "farm drainage ditch" means any artificial channel which drains water from lands which are used for agricultural purposes.
A drainage district drain located in the Duck Creek Drainage District and operated by the board for that district is not navigable unless it is shown, by means of a U.S. geological survey map or other similarly reliable scientific evidence, that the drain was a navigable stream before it became a drainage district drain.
See also chs. NR 305
, Wis. adm. code.
When there are 2 owners of land adjacent to a disputed parcel erroneously meandered under sub. (4), the judge is to divide the parcel proportionately on an equitable, but not necessarily equal, basis. Kind v. Vilas County, 56 Wis. 2d 269
, 201 N.W.2d 881
The DNR properly considered the existence of beaver dams and ponds and the periods of high water caused by spring runoffs in determining the navigability of a creek. The dams and ponds were normal and natural to the stream, and the periods of high water were of a regularly recurring, annual nature. DeGayner & Co. v. DNR, 70 Wis. 2d 936
, 236 N.W.2d 217
An owner of land on a meandered lake takes only to the actual shoreline. An owner does not have a "proper claim" to an isolated parcel separated from the remainder of the lot by the lake, making sub. (4) (b) inapplicable as parcels separated by a lake are not "adjacent." State Commissioners of Board of Public Lands v. Thiel, 82 Wis. 2d 276
, 262 N.W.2d 522
A DNR declaration of navigability subjecting private property to sub. (1) was a taking. Zinn v. State, 112 Wis. 2d 417
, 334 N.W.2d 67
The DNR has the authority, as well as the obligation, to determine whether the waters of the state are navigable in fact and subject to regulation under ch. 30, another agency's prior ancillary finding to the contrary notwithstanding. Turkow v. DNR, 216 Wis. 2d 273
, 576 N.W.2d 288
(Ct. App. 1998), 97-1149
This chapter applies to navigable ditches that were originally navigable streams. If a navigable ditch was originally nonnavigable or had no previous stream history, the DNR's jurisdiction depends upon the facts of the situation. 63 Atty. Gen. 493.
Erroneously meandered lakeshore - the status of the law as it affects title and distribution. 61 MLR 515.
The Muench case: A better test of navigability. Edwards, 1957 WLR 486.
Identification of ordinary high-water mark by town sanitary district.
A town sanitary district may identify the ordinary high-water mark of a lake that lies wholly within unincorporated territory and wholly within the town sanitary district. The department may not identify an ordinary high-water mark of a lake that is different than the ordinary high-water mark identified by a town sanitary district under this section.
History: 1997 a. 237
Determining footage of shoreline.
In determining footage of shoreline for purposes of s. 30.50 (4q)
, 30.77 (3) (ac)
and 60.782 (2)
, towns, villages, cities, public inland lake protection and rehabilitation districts and town sanitary districts shall measure by use of a map wheel on the U.S. geological survey 7 1/2 minute series map.
History: 1995 a. 152
; 1995 a. 349
NAVIGABLE WATERS AND NAVIGATION IN GENERAL
Establishment of bulkhead lines. 30.11(1)
Who may establish.
Any municipality may, subject to the approval of the department, by ordinance establish a bulkhead line and from time to time reestablish the same along any section of the shore of any navigable waters within its boundaries.
(2) Standards for establishing.
Bulkhead lines shall be established in the public interest and shall conform as nearly as practicable to the existing shores, except that in the case of leases under sub. (5)
and s. 24.39 (4)
bulkhead lines may be approved farther from the existing shoreline if they are consistent with and a part of any lease executed by the board of commissioners of public lands.
(3) How established.
Whenever any municipality proposes to establish a bulkhead line or to reestablish an existing bulkhead line, the municipality shall indicate both the existing shore and the proposed bulkhead line upon a map and shall file with the department for its approval 6 copies of the map and 6 copies of the ordinance establishing the bulkhead line. The map shall use a scale of not less than 100 feet to an inch or any other scale required by the department. The map and a metes and bounds description of the bulkhead line shall be prepared by a land surveyor registered in this state. The department may require the installation of permanent reference markers to the bulkhead line. Upon approval by the department, the municipality shall deliver the map, description and ordinance to the office of the register of deeds of the county in which the bulkhead line lies, to be recorded by the register of deeds.
(4) Riparian rights preserved.
Establishment of a bulkhead line shall not abridge the riparian rights of riparian owners. Riparian owners may place solid structures or fill up to such line.
(5) Finding of public interest. 30.11(5)(a)(a)
Prior to the execution of any lease by the board of commissioners of public lands concerning rights to submerged lands or rights to fill in submerged lands held in trust for the public under s. 24.39
, the department shall determine whether the proposed physical changes in the area as a result of the execution of the lease are consistent with the public interest. Thirty days before making its determination, the department shall notify, in writing, the clerk of the county and clerk of the city, village or town in which the changes are proposed and the U.S. Army Corps of Engineers of the application for the lease. In making its finding the department shall give consideration to all reports submitted to it. The department shall not approve a lease applied for under s. 24.39 (4) (a) 2.
if the department determines that the lease may threaten excessive destruction of wildlife habitat.
When considering leases to allow certain initial improvements such as, but not restricted to, filling on submerged lands to create sites for further facilities, the department may determine whether such initial improvements are consistent with the public interest in the navigable waters involved even though the exact final use to which these improvements will be put is not known. The department, at the time it finds that a proposed lease would be consistent with the public interest in the navigable waters involved, may include in its findings such limitations upon the use of improvements as it considers necessary to confine their use to functions primarily related to water transportation or otherwise of public benefit. The board of commissioners of public lands shall include in the lease such limitations on final use as is determined by the department.
Upon the complaint of any person to the department that current use made of rights leased under s. 24.39 (4)
is inconsistent with both its original findings and the public interest, the department shall hold a public hearing thereon after the publication of a class 2 notice, under ch. 985
. If the department finds that the present use conforms neither to its original finding nor to the present public interest, it shall submit its findings to the governor. The governor may cause the attorney general or the district attorney of the proper county to bring action in the name of the state in a court of competent jurisdiction to declare the lease terminated and to institute appropriate action for removal of structures or cessation of practices in violation of such lease.
(6) Shoreline not invalidated.
A shoreline lawfully established before January 1, 1960, is a lawfully established bulkhead line.
A bulkhead line is not merely the natural shoreline, but one legislatively established by a municipality. It may differ from the existing shoreline and is also distinguishable from the low- and high-water marks previously judicially defined. State v. McFarren, 62 Wis. 2d 492
, 215 N.W.2d 459
The private right to fill lakebeds granted under this section does not preempt the zoning power of a county over shorelands under s. 59.971 [now 59.692]. State v. Land Concepts, Ltd. 177 Wis. 2d 24
, 501 N.W.2d 817
(Ct. App. 1993).
When a bulkhead line has been established, a riparian owner must nonetheless obtain a permit or contract pursuant to s. 30.20 prior to removing material from the bed of a navigable water landward of the bulkhead line, but within the original ordinary high water mark. 63 Atty. Gen. 445.
A bulkhead line is not legally established until the filing requirements of sub. (3) are met. A bulkhead line established by a town on lands subsequently annexed to a municipality that has not established such line, remains in effect. 64 Atty. Gen. 112.
Structures and deposits in navigable waters. 30.12(1)(1)
Unless an individual or a general permit has been issued under this section or authorization has been granted by the legislature, no person may do any of the following:
Deposit any material or place any structure upon the bed of any navigable water where no bulkhead line has been established.
Deposit any material or place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.
A riparian owner is exempt from the permit requirements under this section for the placement of a structure or the deposit of material if the structure or material is located in an area other than an area of special natural resource interest, does not interfere with the riparian rights of other riparian owners, and is any of the following:
A deposit of sand, gravel, or stone that totals less than 2 cubic yards and that is associated with any activity or project that is exempt from an individual permit or a general permit under this subchapter.
A structure, other than a pier or a wharf, that is placed on a seasonal basis in accordance with rules promulgated by the department.
A fish crib, spawning reef, wing deflector, or similar device that is placed on the bed of navigable waters for the purpose of improving fish habitat.
A bird nesting platform, wood duck house, or similar structure that is placed on the bed of a navigable water for the purpose of improving wildlife habitat.
A boat shelter, boat hoist, or boat lift that is placed on a seasonal basis adjacent to the riparian owner's pier or wharf or to the shoreline on the riparian owner's property, in accordance with rules promulgated by the department.
A pier or wharf that is no more than 6 feet wide, that extends no further than to a point where the water is 3 feet at its maximum depth, or to the point where there is adequate depth for mooring a boat or using a boat hoist or boat lift, whichever is closer to the shoreline, and which has no more that 2 boat slips for the first 50 feet of riparian owner's shoreline footage and no more than one additional boat slip for each additional 50 feet of the riparian owner's shoreline.
An intake structure and pipe that is placed on the bed of a navigable water for the purpose of constructing a dry fire hydrant to supply water for fire protection.
A piling that is driven into the bed of a navigable water adjacent to the owner's property for the purpose of deflecting ice, protecting an existing or proposed structure, or providing a pivot point for turning watercraft.
Riprap in an amount not to exceed 100 linear feet that is placed to replace existing riprap located in an inland lake or Great Lakes water body and that includes the replacement of filter fabric or base substrate.
Riprap in an amount not to exceed 300 linear feet that is placed to repair existing riprap located in an inland lake or Great Lakes water body, and that consists only of the placement of additional rock or the redistribution of existing rock within the footprint of the existing riprap.
A biological shore erosion control structure, as defined by rule by the department.
An intake or outfall structure that is less than 6 feet from the water side of the ordinary high-water mark and that is less than 25 percent of the width of the channel in which it is placed.
(1m) Duck Creek Drainage District structures and deposits.
A structure or deposit that the drainage board for the Duck Creek Drainage District places in a drain that the board operates in the Duck Creek Drainage District is exempt from the permit requirements under this section if either of the following applies:
The department of agriculture, trade and consumer protection, after consulting with the department of natural resources, specifically approves the structure or deposit.
The structure or deposit is required, under rules promulgated by the department of agriculture, trade and consumer protection, in order to conform the drain to specifications approved by the department of agriculture, trade and consumer protection after consulting with the department of natural resources.