2015 - 2016 LEGISLATURE
December 18, 2015 - Introduced by Senators Lasee,
Nass, LeMahieu, Stroebel
and Kapenga, cosponsored by Representatives Jarchow,
Tittl, Hutton, Craig, Allen, Czaja and Petersen. Referred to Committee on
Natural Resources and Energy.
1An Act to repeal
30.025 (5) and 30.12 (3) (a) 6. a., b. and c.; to renumber and
30.12 (3) (a) 6. (intro.), 30.121 (3w) (c) and 281.36 (3n) (a); to amend
30.01 (1am) (c), 30.01 (1d), 30.12 (1k) (f), 30.12 (3) (a) 3c., 30.12 (3) (a) 3g., 30.12 4
(3) (a) 3r., 30.12 (3) (a) 13., 30.12 (3) (c), 30.121 (1), 30.121 (3c), 30.133 (1), 30.19 5
(1b) (a), 30.19 (1g) (a), 30.19 (1g) (am), 30.206 (1) (a), 30.29 (3) (d), 31.02 (1), 6
31.185 (5) and 281.36 (4) (d); and to create
23.24 (4) (b) 4., 30.025 (6), 30.053, 7
30.106, 30.115, 30.12 (1g) (am), 30.12 (3m) (cr), 30.121 (3b), 30.121 (3w) (c) 3., 8
30.125, 30.19 (1m) (dm), 30.20 (1g) (b) 3., 30.20 (1t) (b), 30.20 (1t) (c), 30.20 (2) 9
(cn), 281.16 (2) (c), 281.31 (2) (b), 281.36 (3n) (a) 4. and 281.36 (4) (f) of the 10
statutes; relating to: the regulation of navigable waters and wetlands.
Analysis by the Legislative Reference Bureau
This bill makes various changes to the regulation of navigable waters, artificial
water bodies, wetlands, and nonpoint source pollution.
Title to the bed of certain filled navigable waters
Under current statutory and common law, this state holds title to navigable
waters in trust for public purposes. This body of law, commonly referred to as the
public trust doctrine, is encompassed in article IX, section 1, of the Wisconsin
Constitution. Under the public trust doctrine, the state has traditionally been the
owner of lake beds up to the ordinary high-water mark (OHWM).
This bill provides that any area of a navigable water that was filled before
January 1, 1975, and that has remained continuously filled since January 1, 1975,
is owned by the riparian owner in whose riparian zone the filled area is located. The
bill defines the riparian zone as the area that extends from the riparian land
waterward to the line of navigation, the depth which is generally needed to operate
a boat on the water, as determined by a method that establishes riparian zone lines
between adjacent riparian owners in a manner that equitably apportions access to
the line of navigation. The bill prohibits the Department of Natural Resources
(DNR) from requiring the riparian owner of the filled area to remove the fill and
requires DNR to furnish a quitclaim deed to the riparian owner of the filled area upon
Applicability of navigable water law to artificial water bodies
Under this bill, unless specifically provided otherwise, the statutes that
regulate navigable waters, harbors, and boating do not apply to an artificial water
body that is not hydrologically connected to a natural navigable waterway and that
does not discharge into a natural navigable waterway except as a result of storm
events. An artificial water body is a body of water that does not have a history of
being a lake or stream or of being part of a lake or stream.
The level and flow of water
Under the bill, DNR may regulate and control the level and flow of water in all
navigable waters in the interest of public rights in navigable waters; to promote
safety; and to protect life, health, property, property values, and economic values.
Navigable water permits
Under current law, a person must obtain one or more permits from DNR in
order to conduct certain activities that occur in or near navigable waterways,
including placement of structures or deposits in navigable waters; construction or
maintenance of bridges and culverts; enlarging or connecting waterways; altering
the courses of streams and rivers; removing material from the bed of a navigable
waterway; and constructing, dredging, or enlarging an artificial water body that
connects with a navigable waterway or that is located within 500 feet of the OHWM
of an existing navigable waterway. The bed of a navigable water includes the area
between the water's edge and the OHWM (shoreline area).
Under current law, some activities are exempt from these permitting
requirements, some activities require that the person be issued an individual permit
for the activity, and some activities are authorized under statewide general permits.
If a general permit covers an activity, the person proposing to conduct the activity
must notify DNR that the person wishes to proceed with the activity. If DNR does
not request additional information or notify the person that an individual permit will
be required within 30 days after receipt of the notification, the person may proceed
with the activity.
This bill does the following with respect to general permits and individual
permits to conduct activities in navigable waters:
1. Requires DNR to issue a general permit that authorizes a riparian owner to
remove 30 cubic yards of material from the bed of an inland lake adjacent to the
riparian owner's property and 100 cubic yards of material from the bed of outlying
waters adjacent to the riparian owner's property once each calendar year.
2. Prohibits DNR from requiring a person to collect a sediment sample as part
of an application for an individual permit or prior to proceeding under a general
permit, unless DNR has specific information that indicates the potential that
contaminants may be present in the material proposed to be dredged.
3. Exempts from the permit requirements certain shoreline maintenance
activities that are conducted in certain shoreline areas.
4. Exempts from the permit requirements the dredging of an artificial water
body that does not connect with a navigable waterway.
5. Establishes that a permit is required to construct or enlarge an artificial
water body that is within 500 feet of the OHWM of an existing navigable waterway
but that does not or will not connect with the existing navigable waterway.
6. Limits the types of areas that DNR may identify as possessing significant
scientific value, which under current law are considered areas of special natural
resource interest (ASNRI), and requires the Joint Committee for Review of
Administrative Rules to approve this identification. Under current law, a riparian
owner is exempt from the permit requirement for depositing material or placing a
structure on the bed of certain navigable waters if the structure or material is located
in an area other than an ASNRI, does not interfere with riparian rights of other
riparian owners, and is a certain type of structure or material.
7. Provides that, in issuing general permits for the replacement or repair of
existing riprap or the replacement of seawalls, DNR may not impose conditions that
prohibit the replacement or repair of riprap or the replacement of seawalls located
in areas designated as ASNRI.
Structures in navigable waters
Under this bill, a DNR decision that a riparian owner does not fall under an
exemption to the prohibition against placing a pier or wharf on the bed of a navigable
water may only be challenged through a declaratory judgment proceeding in the
circuit court for the county in which the riparian property is located and is not subject
to a contested case hearing or judicial review under the statutory administrative
review procedures. Under current law, a DNR decision against the riparian owner
is subject to a new trial.
Under this bill, an owner of riparian land abutting a navigable water who owns
a boat docking facility that is lawfully placed in that water is not prohibited from
entering into an agreement with another owner of riparian land abutting the same
navigable water for the shared use of that boat docking facility.
This bill changes the definition of a boathouse to specify that a boathouse is a
structure used for one or more years for the storage of watercraft and associated
materials regardless of its current use. The bill also makes various changes to the
regulation of boathouses, including:
1. Allows a boathouse located beyond the OHWM of a navigable waterway to
be expanded, and provides that the expansion does not require a permit, if the
boathouse is listed in the national register of historic places in Wisconsin or the state
register of historic places, the boathouse is not expanded beyond its listed historical
boundaries, and the expansion does not involve the placement of any new structure
on the bed of a navigable water.
2. Adds foundations to the list of structural elements of a boathouse that may
be replaced within the current cost limit on repairing and maintaining a boathouse.
3. Allows the repair or maintenance of a boathouse in existence on December
16, 1979, to affect the configuration of the boathouse and still fall under the exception
to the cost limit on repairing and maintaining such a boathouse.
Under current law, a boat shelter is a structure used for the storage of
watercraft and associated materials that has no walls or sides. This bill eliminates
the conditions that DNR may place on a general permit authorizing a riparian owner
to place a boat shelter relating to the location of the shelter and other existing
structures. Under the bill, DNR may impose conditions on the general permit
governing the architectural features of boat shelters and the number of boat shelters
that may be placed adjacent to a parcel of land, but those conditions may not govern
the distance that a boat shelter will extend from the shore and may not be based on
the degree to which adjacent land is developed. Also under the bill, in determining
whether to issue an individual permit to the owner of a proposed permanent boat
shelter, DNR may not deny the permit on the basis of the distance at which a boat
shelter will extend from the shore or the degree to which adjacent land is developed.
This bill requires DNR, in the general permit authorizing a riparian owner to
replace an existing seawall for which DNR has issued a permit, to authorize a
seawall for which DNR granted an exemption from a permit requirement or for
which no permit was required when the seawall was built.
This bill requires DNR, in the general permit authorizing a riparian owner to
place riprap on the bed or bank of a navigable water adjacent to the owner's property
in certain amounts, to authorize the riprap to extend to the top of the bank of the
navigable water or four feet above the OHWM, whichever is lower.
Operation of a vehicle in navigable water
This bill exempts from the general prohibition on operating a utility terrain
vehicle or all-terrain vehicle on any navigable water or the exposed bed of a
navigable water a person engaged in activities landward of a lawfully established
bulkhead line for which no general or individual permit and no contract is required
under navigable water law.
Current law requires DNR to issue certain wetland general permits for
discharges to wetlands that are necessary for the treatment or disposal of hazardous
waste or toxic pollutants if not more than two acres of wetlands are affected, and
discharges for commercial, residential, or agricultural purposes if not more than
10,000 square feet of wetland are affected. Current law allows DNR to establish
different requirements, conditions, and exceptions in general permits to ensure that
the discharges will cause only minimal adverse environmental effects. Current law
establishes a procedure for obtaining authorization to proceed under a wetland
general permit that is similar to the procedure for obtaining authorization under
general permits that authorize structures and other activities in or near navigable
waters. Current law also authorizes DNR to require a person to apply for and obtain
a wetland individual permit if DNR determines that conditions specific to the site
require additional restrictions on the discharge in order to provide reasonable
assurance that no significant adverse impacts to wetland functional values will
This bill exempts from the permitting requirement any discharge that is the
result of maintaining a roadside ditch or sedimentation or storm water detention
basin and associated conveyance features.