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.
Under sub. (4), the department of natural resources has jurisdiction to pursue any “possible violation" of the public trust doctrine as embodied in ch. 30. ABKA Limited Partnership v. Department of Natural Resources, 2002 WI 106
, 255 Wis. 2d 486
, 648 N.W.2d 854
The department of natural resources 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 the department's statutory enforcement authority, nor could it do so. Baer v. Department of Natural Resources, 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 department of natural resources 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.
Applicability of chapter to artificial water bodies and certain impoundments. 30.053(1)(1)
Except in subch. V
and except as specifically provided otherwise in this chapter, nothing in this chapter applies to an artificial water body, as defined in s. 30.19 (1b) (a)
, 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.
Except in subch. V
and s. 30.10 (2) (b)
, nothing in this chapter applies to an impoundment described under s. 30.10 (2) (b)
if the impoundment is not hydrologically connected to a stream classified by the department on March 30, 2018, as a class I, class II, or class III trout stream and the impoundment does not discharge directly into a natural navigable waterway.
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.
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)(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.
Subject to par. (b)
and 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.
If the department makes a determination that a stream or portion of a stream is not navigable and a dam is constructed on the stream that modifies the flow of the stream or portion of the stream as compared to the natural flow of the stream or portion of the stream prior to its construction, and if an artificial impoundment created by the dam is or has been subject to a federal fish and wildlife service Partners for Fish and Wildlife Habitat Development Agreement or, as determined by the department, a similar publicly administered environmental restoration project, then the department may not change its determination of non-navigability with respect to the stream or portion of the stream unless all of the following conditions are met:
All structures that affect the flow of the stream or portion of the stream are removed.
All changes to the stream or land adjacent to the stream that could affect the flow of the stream or portion of the stream are substantially returned to their natural state.
A department evaluation of the navigability of the stream or portion of the stream conducted after the conditions in subds. 1.
are met indicates that the department's determination of non-navigability should be changed.
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 department of natural resources 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. Department of Natural Resources, 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 department of natural resources 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 department of natural resources 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. Department of Natural Resources, 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 department of natural resources' 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.
Riparian Landowners Versus the Public: The Importance of Roads and Highways for Public Access to Wisconsin's Navigable Waters. Williams. 2010 WLR 186.
Website information. 30.102(1)(1)
Navigability determination and ordinary high-water mark identification.
If the department makes a determination that a waterway is navigable or is not navigable or identifies the ordinary high-water mark of a navigable waterway, the department shall publish that information on the department's Internet website. Any person may rely on the information posted under this section as being accurate. This section does not restrict the ability of a person to challenge the accuracy of the information posted under this section.
To the greatest extent possible, the department shall publish on the department's Internet website the current status of any application filed with the department for a permit, license, or other approval under this chapter. The information shall include notice of any hearing scheduled by the department with regard to the application.
History: 2011 a. 167
; 2017 a. 365
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)(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.
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.
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 professional land surveyor licensed under ch. 443
. 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.
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.
Finding of public interest. 30.11(5)(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.
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