The timing of information submissions that the person will be required to provide in order to enable the department to participate in commission review procedures and to process the application in a timely manner.
Any person proposing to construct a utility facility to which this section applies shall, in lieu of separate application for permits, submit one application for permits together with any additional information required by the department. The application shall be filed with the department at the same time that an application for a certificate is filed with the commission under s. 196.49
or in a manner consistent with s. 196.491 (3)
and shall include the detailed information that the department requires to determine whether an application is complete and to carry out its obligations under sub. (4)
. The department may require supplemental information to be furnished thereafter.
A person who applies to the commission for a certificate under s. 196.49
or 196.491 (3)
is eligible to apply under par. (a)
for any permit that the utility facility may require and to receive such permit.
Once the applicant meets the requirements of sub. (1s) (a)
, the department may schedule the matter for a public hearing. Notice of the hearing shall be given to the applicant and shall be published as a class 1 notice under ch. 985
and as a notice on the department's Internet Web site. The department may give such further notice as it deems proper, and shall give notice to interested persons requesting same. The department's notice to interested persons may be given through an electronic notification system established by the department. Notice of a hearing under this subsection published as a class 1 notice, as a notice on the department's Internet Web site, and through the electronic notification system established by the department shall include the time, date, and location of the hearing, the name and address of the applicant, a summary of the subject matter of the application, and information indicating where a copy of the application may be viewed on the department's Internet Web site. The summary shall contain a brief, precise, easily understandable, plain language description of the subject matter of the application. One copy of the application shall be available for public inspection at the office of the department, at least one copy in the regional office of the department, and at least one copy at the main public library, of the area affected. Notwithstanding s. 227.42
, the hearing shall be an informational hearing and may not be treated as a contested case hearing nor converted to a contested case hearing.
(2g) Participation in commission proceedings. 30.025(2g)(a)(a)
The department shall review every proposed utility facility subject to this section, including each location, site, or route proposed for the utility facility, to assess whether each proposed location, site, or route can meet the criteria for proceeding under the authority of or obtaining the required permits, and shall provide that information to the commission.
The department shall participate in commission investigations or proceedings under s. 196.49
or 196.491 (3)
with regard to any proposed utility facility that is subject to this section. In order to ensure that the commission's decision is consistent with the department's responsibilities, the department shall provide the commission with information that is relevant to only the following:
Environmental issues that concern the proposed utility facility.
Public rights in navigable waters that may be affected by the proposed utility facility.
Location, site, or route issues concerning the proposed utility facility, including alternative locations, sites, or routes.
The department shall treat the commission's decision under s. 196.49
or 196.491 (3)
as concluding that there is no practicable alternative for the utility facility if all of the following apply:
The department has participated in the commission's investigations or proceedings under sub. (2g)
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) 1m.
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 s. 281.36
or 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 comply with s. 281.36
or 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)
In determining an appropriate remedy for a violation under this chapter relating to a pier or wharf, the department may not order the removal of a pier or wharf unless the department considers all reasonable alternatives offered by the department and the owner of the pier or wharf relating to the location, design, construction, and installation of the pier or wharf.
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.
The DNR has a statutory duty under sub. (4) (a) to proceed against piers it believes to be in violation of ch. 30 or contrary to the public's rights in the waters of the state. No administrative rule limits DNR's statutory enforcement authority, nor could it do so. Baer v. Wisconsin DNR, 2006 WI App 225
, 297 Wis. 2d 232
, 724 N.W.2d 638
Summary judgment is not permitted in forfeiture actions for violations of ch. 30. The relevant procedural statutes cannot be reconciled with the summary judgment procedure. Although the parties agreed to the filing of a written answer in lieu of an appearance, such an agreement cannot provide the basis to impose upon the statutory scheme a summary judgment procedure that does not otherwise exist. State v. Ryan, 2012 WI 16
, 338 Wis. 2d 695
, 809 N.W.2d 37
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)
Transportation of aquatic plants and animals; placement of objects in navigable waters. 30.07(1)(a)
"Aquatic animal" means any animal that lives or grows only in water during any life state and includes that animal's eggs, larvae, or young.
"Aquatic plant" means a submergent, emergent, floating-leaf, or free-floating plant or any part thereof. "Aquatic plant" does not mean wild rice.
"Highway" has the meaning given in s. 340.01 (22)
, except that it does not include public boat access sites or parking areas for public boat access sites.
"Local governmental unit" means a city, village, town, or county; a special purpose district in this state; an agency or corporation of a city, village, town, county, or special purpose district; or a combination or subunit of any of the foregoing.
"Public boat access site" means a site that provides access to a navigable water for boats and that is open to the general public for free or for a charge or that is open only to certain groups of persons for a charge.
No person may place or operate a vehicle, seaplane, watercraft, or other object of any kind in a navigable water if it has any aquatic plants or aquatic animals attached to the exterior of the vehicle, seaplane, watercraft, or other object. This paragraph does not require a person to remove aquatic plants or aquatic animals from a vehicle, seaplane, watercraft, or other object during the period of time when the vehicle, seaplane, watercraft, or other object is being operated in the same navigable body of water in which the aquatic plants or aquatic animals became attached.
No person may take off with a seaplane, or transport or operate a vehicle, watercraft, or other object of any kind on a highway with aquatic plants or aquatic animals attached to the exterior of the seaplane, vehicle, watercraft, or other object.
A law enforcement officer who has reason to believe that a person is in violation of sub. (2)
may order the person to do any of the following:
Remove aquatic plants or aquatic animals from a vehicle, seaplane, watercraft, or other object of any kind before placing it in a navigable water.
Remove aquatic plants or aquatic animals from a seaplane before taking off with the seaplane.
Remove from, or not place in, a navigable water, a vehicle, seaplane, watercraft, or other object of any kind.
Not take off with a seaplane, or transport or operate a vehicle, watercraft, or other object of any kind on a highway.
(4) Subsection (2)
does not prohibit a person from doing any of the following:
Transporting or operating commercial aquatic plant harvesting equipment that has aquatic plants or animals attached to the exterior of the equipment if the equipment is owned or operated by a local governmental unit, if the equipment is being transported or operated for the purpose of cleaning the equipment to remove aquatic plants or animals, and if the person transports the equipment to, or operates the equipment at, a suitable location away from any body of water.
Transporting or operating a vehicle, seaplane, watercraft, or other object of any kind with duckweed that is incidentally attached to the exterior of the vehicle, seaplane, watercraft, or other object.
The department shall prepare a notice that contains a summary of the provisions under this section and shall make copies of the notice available to owners required to post the notice under par. (b)
Each owner of a public boat access site shall post and maintain the notice described in par. (a)
No person may refuse to obey the order of a law enforcement officer who is acting under sub. (3)
History: 2009 a. 55
; 2011 a. 265
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 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.