September 2011 Special Session
2011 - 2012 LEGISLATURE
October 18, 2011 - Introduced by
Committee on Senate Organization, by request
of Governor Scott Walker, Senator Kedzie, and Representative Mursau.
Referred to Committee on Natural Resources and Environment.
1An Act to repeal
30.12 (1k) (b) 1., 30.12 (1k) (b) 2., 30.12 (1k) (b) 3., 30.12 (1k) 2
(c), 30.12 (1k) (d), 30.12 (3) (br), 30.123 (6) (a), 30.123 (7) (b), 30.1235, 30.19 (3r) 3
(b), 30.20 (1t) (b), 30.206 (1g) and 30.206 (1m); to renumber
30.123 (7) (a) and 4
30.19 (3r) (a); to renumber and amend
30.12 (1g) (f), 30.12 (1k) (b) (intro.), 5
30.12 (3) (a) 6., 30.20 (1t) (a) and 30.208 (2); to amend
30.01 (1am) (c), 30.025 6
(2), 30.10 (4) (a), 30.12 (1j) (c), 30.12 (1k) (cm) (intro.), 30.12 (1k) (cm) 1., 30.12 7
(1k) (cm) 2., 30.12 (1k) (e) 2., 30.121 (3), 30.121 (3g), 30.121 (3r), 30.18 (4) (a), 8
30.206 (1) (a), 30.2065 (3) (a) 1., 30.208 (3) (a), 30.208 (3) (b), 30.208 (3) (c), 9
30.208 (3) (e), 30.208 (4) (a), 30.208 (5) (a) (intro.), 30.208 (5) (a) 1., 30.208 (5) 10
(b) (intro.), 30.208 (5) (b) 4., 30.208 (5) (b) 5., 30.209 (2) (a), 30.209 (2) (b), 30.209 11
(2) (c), 30.209 (2) (d) (intro.), 30.2095 (1) (b), 84.01 (23), 227.01 (13) (rt), 281.344 12
(9) (b) 1. a., 281.346 (9) (b) 1. a., 283.39 (1) (a), 283.53 (1), 285.61 (5) (c), 285.62 13
(3) (c), 285.76 (2) (a), 289.25 (3), 289.31 (4) (a), 289.41 (1m) (g) 1., 291.87 (3), 14
291.87 (6) (a) and 292.31 (3) (f); to repeal and recreate
299.05; and to create
30.102, 30.106, 30.11 (4m), 30.12 (1h), 30.12 (3) (a) 6. c., 30.12 (3) (a) 14., 30.12 2
(3) (d), 30.121 (1), 30.121 (3c), 30.123 (7) (d), 30.19 (1m) (f), 30.19 (1m) (g), 30.20 3
(1g) (b) 3., 30.20 (1t) (a) 2., 30.20 (1t) (a) 3., 30.206 (1) (am) and (ar), 30.206 (1) 4
(b), 30.206 (1r), 30.206 (2b), 30.206 (2m), 30.208 (2) (d), 30.208 (3) (f), 30.208 5
(4m), 30.209 (2) (e), 31.12 (5), 281.41 (5), 285.63 (11), 299.06 and 299.17 of the 6
statutes; relating to: the issuance of, and exemptions from, certain individual
7permits, contracts, and general permits for structures, deposits, and other
8activities in or near navigable waters; areas of significant scientific value that
9are areas of special natural resource interest; repair and maintenance of
10boathouses and fixed houseboats; information required to be published on the
11Department of Natural Resources Internet Web site; expedited procedures for
12certain plan approvals; deadlines for action on certain approval applications;
13and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Under current law, the Department of Natural Resources (DNR) regulates
certain activities that occur in or near navigable waterways. DNR also administers
environmental laws, including laws relating to air and water quality.
Regulation of activities in or near navigable waterways
In order for a person to conduct an activity in or near a navigable waterway, the
person may be required to obtain one or more permits from DNR. Among the permits
that DNR issues are permits to place structures or deposit material into navigable
waters, and permits to remove material from the beds of navigable waters. Under
current law, some activities are exempted from these permitting requirements, some
activities require that the person be issued an individual permit for the activity, and
some activities are authorized under general permits. Under current law, a person
must seek authorization from DNR to proceed under a general permit. If DNR does
not inform the person within a certain time frame that an individual permit is
required, the person may conduct the activity pursuant to the general permit. DNR
may also require that a person be issued an individual permit for an exempt activity
or for an activity authorized under a general permit under certain circumstances.
Procedures in issuing individual permits
In issuing an individual permit, DNR reviews the application, determines
whether it is complete, and notifies the applicant within 30 days after receiving the
application whether the application is complete (30-day review period). If the
application is incomplete, the applicant may supplement the application, but DNR
may not demand items of information that are not specified in the notice as a
condition for determining whether the application is complete, with limited
exceptions. Current law imposes no time limits on this process for determining
whether an application is complete other than the 30-day review period.
Once DNR determines the application is complete, current law imposes time
limits on the notice and public hearing procedures that apply to the application.
Within 15 days, DNR must provide notice to the public that the application is
complete (application notice). If the applicant has requested a public hearing as part
of the application, a notice of public hearing must be included in the application
If the application notice does not contain a notice of public hearing, any person
may request a public hearing, or DNR may decide on its own to hold a public hearing
if DNR determines that there is a significant public interest in holding a hearing.
The public hearing request must be submitted by the interested person, or DNR's
decision to hold a public hearing must occur, within 30 days after DNR provides the
application notice. Within 15 days after the public hearing request is submitted by
an interested person or DNR makes its decision, DNR must give notice of the public
hearing (separate notice of hearing). DNR must hold the hearing within 30 days
after the notice of public hearing is issued either as part of the application notice or
as an independent separate notice of hearing.
Also, DNR must provide a period to receive public comments. This period lasts
for 30 days after the date on which DNR provides notice to the public that the
application is complete or for ten days after the date that a public hearing ends, if
one is held. Within 30 days after the public hearing is held or, if no public hearing
is held, within 30 days of the 30-day comment period, DNR must render a decision
either to issue or not to issue the individual permit or contract.
Under the bill, the time limits for giving application notice and notice of public
hearing are not totally dependent on the date that the application is determined by
DNR to be complete. If, upon reviewing the application, DNR determines that the
application is complete and that no additional information is needed, DNR must
notify the applicant of that fact within the 30-day review period. The date on which
this notice is sent triggers the time limits for the public hearing process and for
receiving public comments.
If DNR determines that the application is not complete, it may make only one
request for additional information during the 30-day review period. There is no time
limit on the applicant for providing the additional information but once it is
submitted, DNR must notify the applicant within ten days as to whether the
application is complete. Even if the application is not complete, the date on which
this second notice is sent triggers the time limits for the public hearing process and
for receiving public comments. Under the bill, the term used for such a date that
triggers the time limits is "date of closure." DNR may ask for information to
supplement the one-time request for information, but such a request may not affect
the date of closure.
The bill shortens the 30-day time period for an interested party to request a
public hearing or for DNR to make a decision on its own to hold a public hearing to
Under the bill, if DNR fails to comply with 30-day and ten-day time limits
relating to determining whether an application is complete, the date of closure shall
be the last day of the 30-day or ten-day time period. If DNR fails to comply with the
time limits relating to the public hearing and comment process, the application for
the permit or contract shall be considered to have been approved.
Procedures in issuing general permits
Under current law, DNR is required to issue by rule statewide general permits
authorizing placement of certain structures and deposits in navigable waters, the
construction and maintenance of certain bridges, enlargement and connection of
waterways, and removal of material from the beds of navigable waters. Current law
allows DNR to issue general permits for certain other waterway activities.
Under this bill, DNR must reissue the four required statewide general permits
for these waterway activities without using the rule-making process. The permits
that were issued by rule will remain in effect until the new permits are issued. The
bill also gives DNR authority to issue a general permit outside of the rule-making
process for any other waterway activity for which an individual permit is issued.
The bill requires DNR to circulate a public notice of its intention to issue a
general permit. This includes a procedure for circulating the notice, for receiving
comments, and holding a public hearing. These procedures are in lieu of those that
occur under the rule-making process. Under the procedures, DNR must provide up
to 30 days after the date of the public notice for interested persons to submit written
comments on the proposed general permit and must hold a public hearing if a request
for a public hearing is received within 30 days of the circulation of the notice and
DNR determines that there is significant public interest in holding a public hearing.
Piers and wharves
This bill modifies current law under which a waterfront property owner
(riparian owner) may obtain an exemption to the general permit requirement for
placing a pier or wharf on the bed of a navigable water. Under current law, in order
for the permit exemption to apply, the pier or wharf may not be in an area of special
natural resource interest, may not extend beyond a specified point, may not interfere
with the riparian rights of other riparian owners, and may only have a specified
number of boat slips. Current law also specifies that for the exemption to apply, the
pier or wharf must comply with width limitations except that the pier may have an
area as a loading platform that exceeds these limitations if the platform meets
certain other size and configuration requirements.
The bill changes the size and configuration requirements for loading platforms
on piers. Under the bill, a loading platform meets the exemption requirements,
regardless of its configuration, as long as the surface area of the platform does not
exceed 200 square feet. The bill also provides that a riparian owner may secure a
specified number of personal watercraft to a pier without affecting the riparian
owner's eligibility for the exemption.
Current law also grants an exemption to a riparian owner of a pier or wharf that
was placed on the bed of a navigable water on or before February 6, 2004, if the pier
or wharf meets certain size and configuration requirements and does not interfere
with the riparian rights of other riparian owners and the riparian owner registers
the pier or wharf with DNR no later than April 1, 2011 (grandfathering exemption).
This bill changes the grandfathering exemption so that any pier or wharf that
was placed on the bed of a navigable water before the effective date of this bill is
exempt from the permit requirement if the pier or wharf does not interfere with the
riparian rights of other riparian owners. The bill eliminates the requirement that
the pier or wharf be registered to be eligible for the grandfathering exemption.
Current law also prohibits DNR from taking any enforcement action against a
riparian owner (enforcement exemption) for the placement of a pier, wharf, boat
shelter, boat hoist, or boat lift (structure) on the bed of a navigable water before
February 6, 2004, if DNR issued a permit or written authorization for the structure
before that date and the structure is in compliance with the permit or authorization.
This bill provides that the enforcement exemption applies regardless of the date on
which DNR issued the permit or written authorization for the structure provided
that the structure is in compliance with the permit or authorization.
Current law also requires DNR to issue statewide general permits that allow
a riparian owner to conduct certain activities on the bed of a navigable water. This
bill requires DNR to issue a statewide general permit to allow a riparian owner to
place a pier or wharf on the bed of a navigable water that is in, or that would directly
affect, an area of special natural resource interest if the pier or wharf meets the
requirements for an exemption for the placement of a pier by a riparian owner. The
bill also specifies that DNR may impose conditions relating to a pier or wharf that
is placed under the authority of a general permit but may not prohibit placement if
the pier or wharf meets the requirements of the general permit.
Placement of fill or structures within a bulkhead line
Generally, under current law, no person may, without a permit, deposit any
material or place any structure on the bed of a navigable water beyond a lawfully
established bulkhead line. A bulkhead line is a shoreline established by a
municipality by ordinance. Current law does not require a riparian owner to obtain
an approval from DNR to deposit material or place a structure on the bed of a
navigable water if the deposit or placement is made within a bulkhead line. This bill
provides that a riparian owner may place additional fill or a structure on the filled
portion of a bed of a navigable water within a bulkhead line for any purpose without
obtaining an approval from DNR if the filled portion was filled before the effective
date of this bill. The bill also provides that if the bed of a navigable water within a
bulkhead line was not filled before the effective date of the bill, a riparian owner may
place fill or a structure on the bed of the navigable water without obtaining an
approval from DNR if the riparian owner places the fill or structure for a public
Land grading activities and removal of materials
Current law prohibits, with certain exceptions, a person from engaging in
construction, dredging, or enlargement activities with regard to certain artificial
water bodies and navigable waterways without a permit. This bill creates an
additional permit exemption. The bill allows a person to engage in land grading
activity that is authorized under a stormwater discharge permit or under a permit
issued by a county under a shoreland zoning ordinance.
Current law also requires, with certain exceptions, a person to have a permit
in order to remove any material from the bed of a lake or navigable stream. This bill
creates an additional exemption to the permit requirement for a removal of no more
than a specified amount of material if the removal is necessary to allow access to
place or remove a pier or wharf. The bill also requires the department to issue a
general permit for the removal of a specified amount of material by a riparian owner
for the purpose of placing or maintaining a boat lift and for the removal of not more
than a specified amount of plant or animal deposits that impede navigation or access
to a stream, inland lake, or outlaying water.
Bridges and culverts
Under current law, a city, village, town, or county is exempt from the individual
and general permitting requirements for the construction or reconstruction of a
highway bridge. This bill repeals this exemption. Instead, DNR must issue a general
permit authorizing the construction, reconstruction, and maintenance of bridges
and culverts that are part of a transportation project that is carried out under the
direction and supervision of a city, village, town, or county
Areas of special natural resource interest
Under current law, certain exemptions for waterway activities do not apply in
areas of special natural resource interest (ASNRIs). Current law defines, for
purposes of exempting certain waterway activities from the individual and
permitting requirements, an ASNRI to be a state natural area, a trout stream or
other surface water that is identified by DNR as being an outstanding or exceptional
resource water, or an area that has significant scientific value as identified by DNR.
DNR has identified by rule various areas as having significant scientific value,
including wild rice waters, waters that contain endangered or threatened species,
and coastal wetlands. This bill incorporates into the statutes most of these areas
designated by rule as having significant scientific value and prohibits DNR from
identifying waters other than the ones specified in the statutes.
Deadlines for action on certain approvals
This bill makes various changes to procedures that DNR is required to follow
in issuing certain licenses, permits, registrations, and other approvals (approvals).
Under current law, DNR is required to promulgate rules to establish periods
within which it intends to approve or disapprove applications for most
environmental approvals. Current law provides that if DNR fails to make a
determination on an application within the specified period, DNR must refund the
fees paid by the applicant for the approval.
This bill specifies that for certain environmental approvals for which DNR
establishes approval periods by rule, and for certain other environmental approvals
for which a specific approval period is established in the bill, DNR must provide the
applicant with written notice that the department has approved or disapproved the
application, including the specific facts upon which any disapproval is based. The
bill requires DNR to provide this notice before the expiration of the relevant approval
period. The bill specifies that if DNR fails to provide this notice, DNR must refund
the fees paid by the applicant and the applicant may seek administrative review of
the application as if the application had been denied. The bill provides that for
certain other approval applications, the failure to meet the deadline for approval or
disapproval of an application constitutes approval of the application.
Under current law, a person to whom DNR issues a permit to construct a dam
must submit specified documents and information to DNR including detailed plans
and specifications for the proposed dam. Current law establishes a procedure under
which DNR must examine this information and determine whether it is satisfactory
or whether modifications are required before DNR approves the plans and
specifications. Current law also establishes a procedure for the approval by DNR of
plans for water and sewerage systems and sewage and refuse disposal plants (water
and sewage plants). This bill requires DNR to establish an expedited procedure for
the approval of plans for low hazard dams and for the approval of plans for water and
Current law requires DNR to publish a newspaper notice containing specified
information relating to certain laws that it administers. The types of notices that
DNR must publish include notices of scheduled hearings, of the opportunity to
submit a written comment, and of the opportunity to request a public hearing and
notices that provide certain other information to the public. This bill allows DNR,
instead of publishing these notices in the newspaper, to publish these notices on its
Internet Web site.
This bill also requires DNR to publish on its Internet Web site any
determination that it makes that a waterway is navigable or not navigable, any
determination that it makes that identifies the ordinary high-water mark of a
navigable water, and, to the greatest extent possible, the current status of any
application filed with DNR for a permit, license, or other approval relating to
navigable waters or the environment.