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.
AB500, s. 1 1Section 1. 20.370 (1) (mu) of the statutes is amended to read:
AB500,7,32 20.370 (1) (mu) General program operations — state funds. The amounts in
3the schedule for general program operations that do not relate to the management

1and protection of the state's fishery resources and that are conducted under ss. 23.09
2to 23.11, 27.01, 30.203, 30.277 30.355, 30.361, and 90.21, and chs. 29 and 169 and for
3transfers to the appropriation account under s. 20.285 (1) (kf).
AB500, s. 2 4Section 2. 25.29 (1) (a) of the statutes is amended to read:
AB500,7,95 25.29 (1) (a) Except as provided in ss. 25.293 and 25.295, all moneys accruing
6to the state for or in behalf of the department under chs. 26, 27, 28, 29, 169, and 350,
7subchs. 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
8to 30.55 30.578, 70.58, 71.10 (5), 71.30 (10), and 90.21, including grants received from
9the federal government or any of its agencies except as otherwise provided by law.
AB500, s. 3 10Section 3. 28.11 (12) of the statutes is amended to read:
AB500,7,2411 28.11 (12) Enforcement. If at any time it appears to the department that the
12lands are not being managed in accordance with violation of this section it , the
13department
shall so advise the county forestry committee and the county clerk. If
14the condition persists, the department may proceed against the persons responsible
15for such noncompliance under s. 30.03 (4) the possible violation by ordering a hearing
16under ch. 227. The department may request that the hearing examiner issue an
17order directing the responsible persons to perform or refrain from acts in order to
18fully protect the county forest lands. If any person fails or neglects to obey an order,
19the department may request the attorney general to institute proceedings for the
20enforcement of the order in the name of the state. The proceeding shall be brought
21in the manner and with the effect of proceedings under s. 111.07 (7). No penalty may
22be imposed for violating a hearing examiner's order under this subsection, but the
23violation of a judgment enforcing the order may be punished in civil contempt
24proceedings
.
AB500, s. 4 25Section 4. 29.601 (5) (a) of the statutes is amended to read:
AB500,8,4
129.601 (5) (a) This section does not apply to any activities carried out under the
2direction and supervision of the department of transportation in connection with the
3construction, reconstruction, maintenance and repair of highways and bridges in
4accordance with s. 30.2022 30.341.
AB500, s. 5 5Section 5. Subchapter I (title) of chapter 30 [precedes 30.01] of the statutes
6is repealed and recreated to read:
AB500,8,77 chapter 30
AB500,8,98 subchapter I
9 definitions
AB500, s. 6 10Section 6. 30.01 (1b) of the statutes is renumbered 30.18 (1) (a).
AB500, s. 7 11Section 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.
AB500, s. 8 12Section 8. 30.01 (1nq) of the statutes is created to read:
AB500,8,1313 30.01 (1nq) "Environmental pollution" has the meaning given in s. 299.01 (4).
AB500, s. 9 14Section 9. 30.01 (1nw) of the statutes is created to read:
AB500,8,1615 30.01 (1nw) "Farm drainage ditch" means any artificial channel that drains
16water from lands that are used for agricultural purposes.
AB500, s. 10 17Section 10. 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.
AB500, s. 11 18Section 11. 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.
AB500, s. 12 19Section 12. 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.
AB500, s. 13 20Section 13. 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.
AB500, s. 14 1Section 14. 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.
AB500, s. 15 2Section 15. 30.01 (6r) of the statutes is created to read:
AB500,9,33 30.01 (6r) "Vessel" has the meaning given for "boat" in sub. (1bm).
AB500, s. 16 4Section 16. 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.
AB500, s. 17 5Section 17. 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.
AB500, s. 18 6Section 18. 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.
AB500, s. 19 7Section 19. 30.025 of the statutes is renumbered 30.295, and 30.295 (1b) (b)
8and (5), as renumbered, are amended to read:
AB500,9,139 30.295 (1b) (b) "Permit" means an individual permit, a general permit, an
10approval, or a contract required under this subchapter or subch. II, a permit or an
11approval required under ch. 31, a storm water discharge permit required under s.
12283.33 (1) (a), or a water quality certification required under s. 281.36 or under rules
13promulgated under subch. II of ch. 281 to implement 33 USC 1341 (a).
AB500,9,15 14(5) Exemption from certain procedures. Sections 30.208 30.244 and 30.209
1530.245 do not apply to an application for any permit under this section.
AB500, s. 20 16Section 20. 30.027 of the statutes is renumbered 30.255 and amended to read:
AB500,9,19 1730.255 Lower Wisconsin State Riverway. For activities in the Lower
18Wisconsin State Riverway, as defined in s. 30.40 (15), no person obtaining the
19department shall include a condition in
a permit issued under subchs. I, II or V this

1subchapter that the person obtaining the permit
may not start or engage in the
2activity for which the permit was issued unless the person obtains any permit that
3is 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.
AB500, s. 21 4Section 21. 30.03 (title) of the statutes is repealed.
AB500, s. 22 5Section 22. 30.03 (2) of the statutes is renumbered 30.97 and amended to read:
AB500,10,9 630.97 Enforcement of forfeitures; abatement of nuisances. The district
7attorney of the appropriate county or, at the request of the department, the attorney
8general shall institute proceedings to recover any forfeiture imposed or to abate any
9nuisance 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.
AB500, s. 23 10Section 23. 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.
AB500, s. 24 11Section 24. 30.03 (4) (a) of the statutes is renumbered 30.96 (1) and amended
12to read:
AB500,11,713 30.96 (1) If the department learns of a possible violation of the statutes relating
14to navigable waters or a possible infringement of the public rights relating to
15navigable waters, and the department determines that the public interest may not
16be adequately served by imposition of a penalty or forfeiture, the department may
17proceed as provided in this paragraph subsection, either in lieu of or in addition to
18any other relief provided by law. The department may order a hearing under ch. 227

1concerning the possible violation or infringement, and may request the hearing
2examiner to issue an order directing the responsible parties to perform or refrain
3from performing acts in order to fully protect the interests of the public in the
4navigable waters. If any person fails or neglects to obey an order, the department
5may request the attorney general to institute proceedings for the enforcement of the
6department's order in the name of the state. The proceedings shall be brought in the
7manner and with the effect of proceedings under s. 111.07 (7).
AB500, s. 25 8Section 25. 30.03 (4) (b) of the statutes is renumbered 30.96 (2) and amended
9to read:
AB500,11,1210 30.96 (2) No penalty may be imposed for violation of violating a hearing
11examiner's order under this subsection section, but the violation of a judgment
12enforcing the order may be punished in civil contempt proceedings.
AB500, s. 26 13Section 26. Subchapter II (title) of chapter 30 [precedes 30.035] of the statutes
14is amended to read:
AB500,11,1515 CHAPTER 30
AB500,11,1816 SUBCHAPTER II
17 NAVIGABLE WATERS AND
18 NAVIGATION IN GENERAL
AB500, s. 27 19Section 27. 30.035 (1) (b) of the statutes is created to read:
AB500,11,2220 30.035 (1) (b) A stream is navigable in fact if it is capable of floating any boat,
21skiff, or canoe that is of the shallowest draft and is of a type used for recreational
22purposes.
AB500, s. 28 23Section 28. 30.035 (3) and (4) of the statutes are created to read:
AB500,12,424 30.035 (3) Determining navigability of streams by department. (a) The
25department may determine whether a stream is navigable in fact by means of actual

1navigation. If the department does so, the department shall use a boat, skiff, or
2canoe, carrying one adult, that is of the shallowest draft and that is of a type used
3for recreational purposes. The department may determine the stream to be
4navigable in fact by means of navigation even though any of the following applies:
AB500,12,65 1. It is necessary to drag or carry the boat, skiff, or canoe over occasional areas
6of shallow water or occasional obstructions.
AB500,12,97 2. The conditions of navigability are present only in regularly recurring periods
8of high water, so long as the periods of high water are of sufficient duration to allow
9recreational use.
AB500,12,1110 3. The conditions of navigability are the result of natural or artificial
11conditions, if the natural or artificial conditions are of long standing.
AB500,12,1512 (b) The department may determine whether a stream is navigable in fact based
13on measurements or calculations that predict, to a reasonable scientific certainty, the
14existence of water in the stream sufficient to allow actual navigation as required for
15a determination of navigability under par. (a).
AB500,12,1716 (c) The department may determine whether a stream is navigable in fact based
17on reliable records that show a history of actual navigation.
AB500,12,2118 (d) In addition to the department, any person may determine whether a stream
19is navigable in fact by using a method described in pars. (a) to (c). A stream is
20presumed to be navigable as a matter of law if it is determined to be navigable in fact
21using a method described in pars. (a) to (c).
AB500,13,3 22(4) Maps and data. The department shall develop, and make publicly available,
23maps and data that show the results of determinations of navigability that are made
24by the department. At a minimum, the maps and data shall include navigability
25determinations made after the effective date of this subsection .... [revisor inserts

1date]. To the extent practicable, within the constraints of available staff and funds,
2the department shall incorporate past determinations of navigability into the maps
3and 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.
AB500, s. 29 1Section 29. 30.04 of the statutes is created to read:
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