AB514: Bill Text

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AB514, s. 15 Section 15. 30.01 (6b) of the statutes is repealed.

Note: The definition of "substantive written objection" is repealed.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:

AB514,12,3 30.96 (2) No penalty may be imposed for violation of violating a hearing examiner's order under this subsection section, but the violation of a judgment enforcing the order may be punished in civil contempt proceedings.

AB514, s. 29 Section 29. Subchapter II (title) of chapter 30 [precedes 30.035] of the statutes is amended to read:

AB514,12,6 CHAPTER 30

AB514,12,9 SUBCHAPTER II NAVIGABLE WATERS AND NAVIGATION IN GENERAL

AB514, s. 30 Section 30. 30.035 (1) (b) of the statutes is created to read:

AB514,12,13 30.035 (1) (b) A stream is navigable in fact if it is capable of floating any boat, skiff, or canoe that is of the shallowest draft and is of a type used for recreational purposes.

AB514, s. 31 Section 31. 30.035 (3) and (4) of the statutes are created to read:

AB514,12,20 30.035 (3) Determining navigability of streams by department. (a) The department may determine whether a stream is navigable in fact by means of actual navigation. If the department does so, the department shall use a boat, skiff, or canoe, carrying one adult, that is of the shallowest draft and that is of a type used for recreational purposes. The department may determine the stream to be navigable in fact by means of navigation even though any of the following applies:

AB514,12,22 1. It is necessary to drag or carry the boat, skiff, or canoe over occasional areas of shallow water or occasional obstructions.

AB514,12,25 2. The conditions of navigability are present only in regularly recurring periods of high water, so long as the periods of high water are of sufficient duration to allow recreational use.

AB514,13,2 3. The conditions of navigability are the result of natural or artificial conditions, if the natural or artificial conditions are of long standing.

AB514,13,6 (b) The department may determine whether a stream is navigable in fact based on measurements or calculations that predict, to a reasonable scientific certainty, the existence of water in the stream sufficient to allow actual navigation as required for a determination of navigability under par. (a).

AB514,13,8 (c) The department may determine whether a stream is navigable in fact based on reliable records that show a history of actual navigation.

AB514,13,12 (d) In addition to the department, any person may determine whether a stream is navigable in fact by using a method described in pars. (a) to (c). A stream is presumed to be navigable as a matter of law if it is determined to be navigable in fact using a method described in pars. (a) to (c).

AB514,13,19 (4) Maps and data. The department shall develop, and make publicly available, maps and data that show the results of determinations of navigability that are made by the department. At a minimum, the maps and data shall include navigability determinations made after the effective date of this subsection .... [revisor inserts date]. To the extent practicable, within the constraints of available staff and funds, the department shall incorporate past determinations of navigability into the maps and data.

Note: The determination of whether a lake or stream meets the legal standard of navigability is critical, both for the public and for riparian property owners, because it is the means for determining whether a project that affects surface waters is subject to the regulations in subch. II of ch. 30, through the statutory system of permits, contracts and other regulations. It is also critical to determining the property rights of and among riparian owners.

The special committee has determined that public confidence in the regulatory system for navigable waters is being undermined by the lack of a clear, publicly accessible statement of: (1) the legal standard used to determine if streams are navigable; and (2) the various methods that the DNR may use to determine if a particular stream meets the legal standard of navigability.

With respect to the first issue, above, the legal standard for determining if a stream is navigable is currently found in court cases and in a very brief description in s. 30.10. To address the concerns regarding the ability of members of the public to locate the legal standard for navigability of a stream, this bill restates the current test of navigability that is found in court cases and the statutes. In these provisions, the special committee is merely restating and not recommending a change in the legal standard for determining whether a stream is navigable.

With respect to the 2nd issue, above, the methods that the DNR currently uses to determine if a lake or stream is navigable are not currently set forth in any statute or rule. To address the concerns regarding the methods used by DNR to determine if a stream is navigable, this bill proposes a combination of statutes and rules to expressly state the test of navigability. The DNR is required to make its determinations of navigability using, at a minimum, a boat, skiff, or canoe of the shallowest draft used for recreational purposes, with one adult in the boat, skiff, or canoe. This method of determining navigability is the "test" set forth in Wisconsin supreme court cases. The DNR is also directed to promulgate rules (see s. 30.04 (2) in this bill) describing the methods it uses to determine if a lake or stream is navigable. In addition to the test involving actual navigation, the DNR may also use other methods to determine navigability of streams (such as measurements or calculations), so long as those methods predict sufficient water in the stream to allow for actual navigation during periods of high water.

The special committee's objective in recommending this change is to create a test of navigability for streams that will be applied consistently throughout the state by the DNR. For the first time, this will give the test of navigability for streams a clear public statement, a substantial degree of predictability and repeatability and, from the public perspective, a sense of fairness. This test of navigability will lessen the chance for the application of public rights in navigable waters to depend on the choices made by DNR staff regarding the type of watercraft and the amount of weight carried in the watercraft.

The special committee is not recommending a change in the statutes related to the determination of navigability for lakes. The current statutory standard for lakes is "navigable in fact", and does not appear to cause problems. For consistency, the phrase "for any purpose whatsoever" is applied to lakes under this bill, just as that phrase applies to streams under current s. 30.10 (2). The public concerns regarding the test of navigability relate to streams, particularly those at the margins between navigability and nonnavigability.

The special committee discussed, but chose not to recommend, a test of navigability for streams that involves specification of the size and weight of the canoe, paddlers, and cargo, as well as other aspects of the test. Although court cases mention depth of water, and duration of high water, the courts are referring to evidence that supports determinations of navigability, and not to the test of navigability.

The current legal standard of navigability is summarized in Memo No. 4, Alternatives for Consideration by the Special Committee: The Definition of Navigability and Related Issues (November 20, 2000). Memo No. 4 discusses the leading case on the navigability of streams, DeGayner and Co. v. Department of Natural Resources. The key provisions of the "test" of navigability in DeGayner are that navigability of a stream is tested with the shallowest draft boat available for recreational use, such as a kayak or canoe, and that navigability is determined based on the amount of water in the stream during the periodic and recurring spring runoff.

With respect to the depth of the stream, the supreme court noted that evidence had been presented to the trial court in DeGayner that canoes and kayaks used for recreational purposes could be floated in as little as 3 inches of water. With respect to the duration of high water, the supreme court cited an earlier case that had found navigability during periodic rises of a stream from 4 to 13 days duration.

However, it is important to understand that these numeric standards were not adopted by the supreme court as part of the "test" for determining whether a stream is navigable. DeGayner was the review of a judgment of the circuit court which had sustained the order of the DNR determining that the stream in question was navigable in fact. Conflicting evidence had been presented to the trial court, including testimony by DNR employees that the stream was not navigable. The legal issue in DeGayner was whether there was "substantial evidence" in the record to support the DNR determination. The substantial evidence standard for review of agency determinations does not require the court to find that there was a preponderance of evidence to sustain the agency's findings, but rather that the finding was supported by substantial evidence in view of the entire record. Thus, in referring to 3 inches of water and 4 to 13 days of high water, the court was acknowledging evidence that supported the DNR determination. The court's holding in DeGayner did not specify how much water must be available, for how long, or even require that the determination of navigability be conducted by means of actual navigation.

The special committee's recommendation continues to allow various other testing methods, and to allow the exercise of discretion and judgment by the DNR. The supreme court has not precluded the use of calculations of water depth and duration, consultation of historic records, or any other method of determining navigability, so long as that evidence relates to the potential for actual navigation.

The special committee acknowledges that the current court test of navigability is based on any form of recreational use of waters for boating. It is not appropriate to make the statutory test overly precise, so as to exclude any common methods of or future developments in recreational boating. The special committee determined that a more precise test of navigability would, in fact, involve a change from current law.

Any determination of navigability using the statutory methods is cast as a presumption, which can be rebutted by other evidence of navigability or nonnavigability. It should be noted that the presumption applies to any determination of navigability or nonnavigability, regardless of who makes the determination. Thus, the presumption could apply in a dispute between riparian owners, in which the navigability or nonnavigability of the stream was at issue.

This bill uses "lake" and "stream" in new s. 30.035 and elsewhere in subch. II of ch. 30. There does not appear to be a pattern in the cases or statutes with respect to these terms. Other terms are used throughout the statutes to describe surface waters, including river, slough, bayou, marsh, pond, spring pond, glacial pothole lake, flowage, creek, bay, watercourse, and brook. No legal significance attaches to the use of any of these terms. "Lake" and "stream" are used as collective terms to refer to all such waters.

AB514, s. 32 Section 32. 30.04 of the statutes is created to read:

AB514,15,3 30.04 Rule making. (1) The department may promulgate rules under this chapter.

AB514,15,4 (2) The department shall promulgate rules that describe all of the following:

AB514,15,6 (a) The standards in common law and statutes for determining whether a body of water is a lake or stream.

AB514,15,8 (b) The methods used by the department for making determinations of whether a lake or stream is navigable under s. 30.035.

AB514,16,2 (c) The public interest and public rights and the rights of riparian owners in navigable waters.

AB514,16,5 (d) The methods for evaluating how an activity, deposit, or structure regulated under this subchapter may promote or be detrimental to the public interest and public rights in navigable waters and to the rights of riparian owners.

AB514,16,8 (e) The methods for evaluating how an activity, deposit, or structure regulated under this subchapter may materially obstruct navigation or materially reduce the flood flow capacity of a stream.

AB514,16,10 (f) The kinds of scientific evidence that may be used to show that a farm drainage ditch was a navigable stream before ditching for purposes of s. 30.215.

AB514,16,16 (3) The department shall promulgate rules that specify the local governmental units that are required to receive notice under this subchapter. At a minimum, the department shall provide notice to each of the following persons representing local governmental units, if the activity, deposit, or structure that is subject to the requirement of a permit, an order, or a hearing is located in the local governmental unit:

AB514,16,17 (a) The clerk of a municipality.

AB514,16,18 (b) The secretary of a town sanitary district.

AB514,16,19 (c) The secretary of a public inland lake protection and rehabilitation district.

AB514,16,20 (d) The secretary of a county drainage board.

AB514,16,23 (4) Any reference to this subchapter includes any rules promulgated under this subchapter, and any reference to any provision of this subchapter includes any rules promulgated under that provision.

Note: The new requirement for rules related to navigable waters, in sub. (2), above, is described in the note following s. 30.035 (4), which is created by this bill.

AB514, s. 33 Section 33. 30.05 of the statutes is renumbered 30.233 and amended to read:

AB514,17,9 30.233 Applicability of chapter to municipally-owned submerged shorelands subchapter to lake beds or stream beds under the jurisdiction of a municipality. Nothing in this chapter subchapter 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 applies to any lake bed, the title to which has been granted by the state to a municipality or to any stream bed which the legislature has authorized a municipality to occupy.

Note: This statute is amended to apply to other lakes in which lake bed grants have been made and to authorization to occupy portions of a stream bed.