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
The private right to fill lakebeds granted under this section does not preempt the zoning power of a county over shorelands under s. 59.971 [now s. 59.692]. State v. Land Concepts, Ltd. 177 Wis. 2d 24
, 501 N.W.2d 817
(Ct. App. 1993).
When a bulkhead line has been established, a riparian owner must nonetheless obtain a permit or contract pursuant to s. 30.20 prior to removing material from the bed of a navigable water landward of the bulkhead line, but within the original ordinary high water mark. 63 Atty. Gen. 445.
A bulkhead line is not legally established until the filing requirements of sub. (3) are met. A bulkhead line established by a town on lands subsequently annexed to a municipality that has not established such line, remains in effect. 64 Atty. Gen. 112.
Structures and deposits in navigable waters. 30.12(1)(1)
Unless an individual or a general permit has been issued under this section or authorization has been granted by the legislature, no person may do any of the following:
Deposit any material or place any structure upon the bed of any navigable water where no bulkhead line has been established.
Deposit any material or place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.
A riparian owner is exempt from the permit requirements under this section for the placement of a structure or the deposit of material if the structure or material is located in an area other than an area of special natural resource interest, does not interfere with the riparian rights of other riparian owners, and is any of the following:
A deposit of sand, gravel, or stone that totals less than 2 cubic yards and that is associated with any activity or project that is exempt from an individual permit or a general permit under this subchapter.
A structure, other than a pier or a wharf, that is placed on a seasonal basis in accordance with rules promulgated by the department.
A fish crib, spawning reef, wing deflector, or similar device that is placed on the bed of navigable waters for the purpose of improving fish habitat.
A bird nesting platform, wood duck house, or similar structure that is placed on the bed of a navigable water for the purpose of improving wildlife habitat.
A boat shelter, boat hoist, or boat lift that is placed on a seasonal basis adjacent to the riparian owner's pier or wharf or to the shoreline on the riparian owner's property, in accordance with rules promulgated by the department.
It extends no further than to a point where the water is 3 feet at its maximum depth as measured at summer low levels, or to the point where there is adequate depth for mooring a boat or using a boat hoist or boat lift, whichever is farther from the shoreline.
It has no more than 2 boat slips for the first 50 feet of the riparian owner's shoreline footage and no more than one additional boat slip for each additional 50 feet of the riparian owner's shoreline footage.
Notwithstanding the width limitation in subd. 1.
, a pier may have an area as a loading platform that is more than 6 feet wide if the surface area of the platform does not exceed 200 square feet.
An intake structure and pipe that is placed on the bed of a navigable water for the purpose of constructing a dry fire hydrant to supply water for fire protection.
A piling that is driven into the bed of a navigable water adjacent to the owner's property for the purpose of deflecting ice, protecting an existing or proposed structure, or providing a pivot point for turning watercraft.
Riprap in an amount not to exceed 100 linear feet that is placed to replace existing riprap located in an inland lake or Great Lakes water body and that includes the replacement of filter fabric or base substrate.
Riprap in an amount not to exceed 300 linear feet that is placed to repair existing riprap located in an inland lake or Great Lakes water body, and that consists only of the placement of additional rock or the redistribution of existing rock within the footprint of the existing riprap.
Riprap in an amount not to exceed 200 linear feet that is placed in a river or inland lake, or in an amount not to exceed 300 linear feet that is placed in a Great Lakes water body, and to which all of the following apply:
The riprap is clean fieldstone or quarry stone with a diameter of no less than 6 inches and no greater than 48 inches.
The toe of the riprap does not extend more than 8 feet waterward of the ordinary high-water mark.
The final riprap slope is not steeper than one foot horizontal to 1.25 feet vertical.
The riprap does not reach an elevation higher than 36 inches above the ordinary high-water mark or above the storm-wave height, as calculated using a method established by the department by rule, whichever is higher.
No fill material or soil is placed in a wetland and, aside from riprap and, under subd. 7.
, gravel, no fill material or soil is placed below the ordinary high-water mark of any navigable waterway.
The riprap follows the natural contour of the shoreline.
Filter fabric or clean-washed gravel is used as a filter layer under the riprap.
A biological shore erosion control structure, as defined by rule by the department.
An intake or outfall structure that is less than 6 feet from the water side of the ordinary high-water mark and that is less than 25 percent of the width of the channel in which it is placed.
A structure or deposit that is related to the construction, access, or operation of a new manufacturing facility in a navigable stream located in an electronics and information technology manufacturing zone designated under s. 238.396 (1m)
Personal watercraft secured to piers allowed.
A riparian owner may secure to a pier or wharf up to 2 personal watercraft for the first 50 feet of the riparian owner's shoreline footage and one additional personal watercraft for each additional 50 feet of the riparian owner's shoreline footage without affecting the riparian owner's eligibility for an exemption under sub. (1g) (f)
. For the purpose of this subsection, “personal watercraft" has the meaning given in s. 30.50 (9d)
Boat slips for certain piers and wharves. 30.12(1j)(a)
Subject to pars. (b)
, the riparian owner or owners of a property that is adjacent to a lake of 50 acres or more and on which there are 3 or more dwelling units or on which there are commercial structures may, in lieu of placing a pier or wharf described under sub. (1g) (f)
, place a pier or wharf that has either of the following number of boat slips, whichever is smaller:
Four boat slips for the first 50 feet of the property's shoreline footage and no more than 2 boat slips for each additional 50 feet of the property's shoreline footage.
One boat slip for each dwelling unit, plus an additional number of boat slips if the additional slips are open to the public and the use of the additional slips is limited to the transient docking of boats for less than 24 hours.
If the riparian owner or owners of a property described in par. (a)
are eligible to place a pier or wharf with the number of boat slips specified in par. (a)
, the pier or wharf must be located in an area other than an area of special natural resource interest, may not interfere with the riparian rights of other riparian owners, and must meet all of the requirements for the placement of the pier or wharf specified under sub. (1g) (f)
except for the limitation on the number of boat slips allowed under sub. (1g) (f)
If the riparian owner or owners of a property described in par. (a)
are eligible and propose to place a pier or wharf with the number of boat slips specified in par. (a)
, the riparian owner or owners shall apply to the department for an individual permit under s. 30.208
authorizing the configuration of the pier or wharf unless the configuration is authorized by the department under a general permit under s. 30.206
. The department may not deny the permit on the basis of the number of slips proposed by the riparian owner or owners if the number of slips proposed does not exceed the number allowed under par. (a)
. A riparian owner or owners who apply for a permit under this paragraph shall be presumed to be entitled to the number of slips allowed under par. (a)
Exemption for certain structures. 30.12(1k)(a)
In this subsection, “structure" means a pier, wharf, boat shelter, boat hoist, or boat lift.
In addition to the exemptions under sub. (1g)
, a riparian owner of a pier or wharf that was placed on the bed of a navigable water before April 17, 2012, is exempt from the permit requirements under this section unless any of the following applies:
The department notified the riparian owner before August 1, 2012, that the pier or wharf is detrimental to the public interest.
The pier or wharf interferes with the riparian rights of other riparian owners.
The department may not take any enforcement action under this chapter against a riparian owner for the placement of any of the following:
A structure for which the department has issued a permit under this section, if the structure is in compliance with that permit.
A structure for which the department has issued a written authorization, if the structure is in compliance with that written authorization.
A riparian owner who is exempt under par. (b)
from the permit requirements under this section or who is exempt under par. (cm)
from enforcement action under this chapter may do all of the following:
Repair and maintain the exempt structure without obtaining a permit from the department under this section unless the owner enlarges the structure.
If the exempt structure is a pier or wharf, relocate or reconfigure the pier or wharf if the riparian owner does not enlarge the pier or wharf.
If the department determines that the owner of a structure is not entitled to an exemption under this subsection, the owner may bring an action for declaratory judgment under s. 806.04
in the circuit court for the county in which the riparian property is located. The owner is not entitled to a contested case hearing or judicial review under ch. 227