CORRECTED COPY
LRB-3973/2
EHS/RNK/ZDW:all
2015 - 2016 LEGISLATURE
December 10, 2015 - Introduced by Representatives Jarchow, Allen, Craig, Czaja,
Hutton, Knodl, Nygren, Petersen and Tittl, cosponsored by Senators
Lasee, LeMahieu, Nass, Stroebel and Kapenga. Referred to Committee on
Environment and Forestry.
AB600,1,10
1An Act to repeal 30.025 (5) and 30.12 (3) (a) 6. a., b. and c.;
to renumber and
2amend 30.12 (3) (a) 6. (intro.), 30.121 (3w) (c) and 281.36 (3n) (a);
to amend
330.01 (1am) (c), 30.01 (1d), 30.12 (1k) (f), 30.12 (3) (a) 3c., 30.12 (3) (a) 3g., 30.12
4(3) (a) 3r., 30.12 (3) (a) 13., 30.12 (3) (c), 30.121 (1), 30.121 (3c), 30.133 (1), 30.19
5(1b) (a), 30.19 (1g) (a), 30.19 (1g) (am), 30.206 (1) (a), 30.29 (3) (d), 31.02 (1),
631.185 (5) and 281.36 (4) (d); and
to create 23.24 (4) (b) 4., 30.025 (6), 30.053,
730.106, 30.115, 30.12 (1g) (am), 30.12 (3m) (cr), 30.121 (3b), 30.121 (3w) (c) 3.,
830.125, 30.19 (1m) (dm), 30.20 (1g) (b) 3., 30.20 (1t) (b), 30.20 (1t) (c), 30.20 (2)
9(cn), 281.16 (2) (c), 281.31 (2) (b), 281.36 (3n) (a) 4. and 281.36 (4) (f) of the
10statutes;
relating to: the regulation of navigable waters and wetlands.
Analysis by the Legislative Reference Bureau
Introduction
This bill makes various changes to the regulation of navigable waters, artificial
water bodies, wetlands, and nonpoint source pollution.
Navigable waters
Title to the bed of certain filled navigable waters
Under current statutory and common law, this state holds title to navigable
waters in trust for public purposes. This body of law, commonly referred to as the
public trust doctrine, is encompassed in article IX, section 1, of the Wisconsin
Constitution. Under the public trust doctrine, the state has traditionally been the
owner of lake beds up to the ordinary high-water mark (OHWM).
This bill provides that any area of a navigable water that was filled before
January 1, 1975, and that has remained continuously filled since January 1, 1975,
is owned by the riparian owner in whose riparian zone the filled area is located. The
bill defines the riparian zone as the area that extends from the riparian land
waterward to the line of navigation, the depth which is generally needed to operate
a boat on the water, as determined by a method that establishes riparian zone lines
between adjacent riparian owners in a manner that equitably apportions access to
the line of navigation. The bill prohibits the Department of Natural Resources
(DNR) from requiring the riparian owner of the filled area to remove the fill and
requires DNR to furnish a quitclaim deed to the riparian owner of the filled area upon
request.
Applicability of navigable water law to artificial water bodies
Under this bill, unless specifically provided otherwise, the statutes that
regulate navigable waters, harbors, and boating do not apply to an artificial water
body 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. An artificial water body is a body of water that does not have a history of
being a lake or stream or of being part of a lake or stream.
The level and flow of water
Under the bill, DNR may regulate and control the level and flow of water in all
navigable waters in the interest of public rights in navigable waters; to promote
safety; and to protect life, health, property, property values, and economic values.
Navigable water permits
Under current law, a person must obtain one or more permits from DNR in
order to conduct certain activities that occur in or near navigable waterways,
including placement of structures or deposits in navigable waters; construction or
maintenance of bridges and culverts; enlarging or connecting waterways; altering
the courses of streams and rivers; removing material from the bed of a navigable
waterway; and constructing, dredging, or enlarging an artificial water body that
connects with a navigable waterway or that is located within 500 feet of the OHWM
of an existing navigable waterway. The bed of a navigable water includes the area
between the water's edge and the OHWM (shoreline area).
Under current law, some activities are exempt from these permitting
requirements, some activities require that the person be issued an individual permit
for the activity, and some activities are authorized under statewide general permits.
If a general permit covers an activity, the person proposing to conduct the activity
must notify DNR that the person wishes to proceed with the activity. If DNR does
not request additional information or notify the person that an individual permit will
be required within 30 days after receipt of the notification, the person may proceed
with the activity.
This bill does the following with respect to general permits and individual
permits to conduct activities in navigable waters:
1. Requires DNR to issue a general permit that authorizes a riparian owner to
remove 30 cubic yards of material from the bed of an inland lake adjacent to the
riparian owner's property and 100 cubic yards of material from the bed of outlying
waters adjacent to the riparian owner's property once each calendar year.
2. Prohibits DNR from requiring a person to collect a sediment sample as part
of an application for an individual permit or prior to proceeding under a general
permit, unless DNR has specific information that indicates the potential that
contaminants may be present in the material proposed to be dredged.
3. Exempts from the permit requirements certain shoreline maintenance
activities that are conducted in certain shoreline areas.
4. Exempts from the permit requirements the dredging of an artificial water
body that does not connect with a navigable waterway.
5. Establishes that a permit is required to construct or enlarge an artificial
water body that is within 500 feet of the OHWM of an existing navigable waterway
but that does not or will not connect with the existing navigable waterway.
6. Limits the types of areas that DNR may identify as possessing significant
scientific value, which under current law are considered areas of special natural
resource interest (ASNRI), and requires the Joint Committee for Review of
Administrative Rules to approve this identification. Under current law, a riparian
owner is exempt from the permit requirement for depositing material or placing a
structure on the bed of certain navigable waters if the structure or material is located
in an area other than an ASNRI, does not interfere with riparian rights of other
riparian owners, and is a certain type of structure or material.
7. Provides that, in issuing general permits for the replacement or repair of
existing riprap or the replacement of seawalls, DNR may not impose conditions that
prohibit the replacement or repair of riprap or the replacement of seawalls located
in areas designated as ASNRI.
Structures in navigable waters
Piers
Under this bill, a DNR decision that a riparian owner does not fall under an
exemption to the prohibition against placing a pier or wharf on the bed of a navigable
water may only be challenged through a declaratory judgment proceeding in the
circuit court for the county in which the riparian property is located and is not subject
to a contested case hearing or judicial review under the statutory administrative
review procedures. Under current law, a DNR decision against the riparian owner
is subject to a new trial.
Under this bill, an owner of riparian land abutting a navigable water who owns
a boat docking facility that is lawfully placed in that water is not prohibited from
entering into an agreement with another owner of riparian land abutting the same
navigable water for the shared use of that boat docking facility.
Boathouses
This bill changes the definition of a boathouse to specify that a boathouse is a
structure used for one or more years for the storage of watercraft and associated
materials regardless of its current use. The bill also makes various changes to the
regulation of boathouses, including:
1. Allows a boathouse located beyond the OHWM of a navigable waterway to
be expanded, and provides that the expansion does not require a permit, if the
boathouse is listed in the national register of historic places in Wisconsin or the state
register of historic places, the boathouse is not expanded beyond its listed historical
boundaries, and the expansion does not involve the placement of any new structure
on the bed of a navigable water.
2. Adds foundations to the list of structural elements of a boathouse that may
be replaced within the current cost limit on repairing and maintaining a boathouse.
3. Allows the repair or maintenance of a boathouse in existence on December
16, 1979, to affect the configuration of the boathouse and still fall under the exception
to the cost limit on repairing and maintaining such a boathouse.
Boat shelters
Under current law, a boat shelter is a structure used for the storage of
watercraft and associated materials that has no walls or sides. This bill eliminates
the conditions that DNR may place on a general permit authorizing a riparian owner
to place a boat shelter relating to the location of the shelter and other existing
structures. Under the bill, DNR may impose conditions on the general permit
governing the architectural features of boat shelters and the number of boat shelters
that may be placed adjacent to a parcel of land, but those conditions may not govern
the distance that a boat shelter will extend from the shore and may not be based on
the degree to which adjacent land is developed. Also under the bill, in determining
whether to issue an individual permit to the owner of a proposed permanent boat
shelter, DNR may not deny the permit on the basis of the distance at which a boat
shelter will extend from the shore or the degree to which adjacent land is developed.
Seawalls
This bill requires DNR, in the general permit authorizing a riparian owner to
replace an existing seawall for which DNR has issued a permit, to authorize a
seawall for which DNR granted an exemption from a permit requirement or for
which no permit was required when the seawall was built.
Riprap
This bill requires DNR, in the general permit authorizing a riparian owner to
place riprap on the bed or bank of a navigable water adjacent to the owner's property
in certain amounts, to authorize the riprap to extend to the top of the bank of the
navigable water or four feet above the OHWM, whichever is lower.
Operation of a vehicle in navigable water
This bill exempts from the general prohibition on operating a utility terrain
vehicle or all-terrain vehicle on any navigable water or the exposed bed of a
navigable water a person engaged in activities landward of a lawfully established
bulkhead line for which no general or individual permit and no contract is required
under navigable water law.
Wetlands
Wetland permits
Current law requires DNR to issue certain wetland general permits for
discharges to wetlands that are necessary for the treatment or disposal of hazardous
waste or toxic pollutants if not more than two acres of wetlands are affected, and
discharges for commercial, residential, or agricultural purposes if not more than
10,000 square feet of wetland are affected. Current law allows DNR to establish
different requirements, conditions, and exceptions in general permits to ensure that
the discharges will cause only minimal adverse environmental effects. Current law
establishes a procedure for obtaining authorization to proceed under a wetland
general permit that is similar to the procedure for obtaining authorization under
general permits that authorize structures and other activities in or near navigable
waters. Current law also authorizes DNR to require a person to apply for and obtain
a wetland individual permit if DNR determines that conditions specific to the site
require additional restrictions on the discharge in order to provide reasonable
assurance that no significant adverse impacts to wetland functional values will
occur.
This bill exempts from the permitting requirement any discharge that is the
result of maintaining a roadside ditch or sedimentation or storm water detention
basin and associated conveyance features.
Practicable alternatives review
Under current law, DNR reviews the practicable alternatives presented in an
application for a individual permit, and must find that the project complies with
wetland quality standards if it determines that the proposed project represents the
least environmentally damaging practicable alternative, all practicable measures to
minimize the adverse impact to wetland functional values will be taken, and the
discharge will not result in significant adverse impacts to wetland functional values
or to water quality or result in any other significant adverse environmental
consequences. Upon making such a finding, DNR is authorized, but is not required,
to issue a wetland individual permit. Current law requires DNR to limit its review
of practicable alternatives to those that are located at the site of the discharge or
adjacent to that site if the applicant has demonstrated that the proposed project
causing the discharge will result in a demonstrable economic public benefit, that the
proposed project is necessary for the expansion of an existing industrial, commercial,
or agricultural facility that is in existence at the time the application is submitted,
or that the proposed project will occur in an industrial park that is in existence at the
time the application is submitted. Under this bill, for wetlands that are not subject
to federal jurisdiction, DNR is required to limit its review to those practicable
alternatives that are both consistent with the overall purpose and scope of the project
and are either located at the site of discharge or located adjacent to that site if both
sites are owned by the same owner. The limitation to the discharge site or adjacent
site does not apply if the proposed discharge affects more than 20 percent of the area
of the site or more than five acres.
Utility permit procedure
Under current law, with certain exceptions, a public utility may not begin
construction on a utility project, and no person, including a public utility, may
construct a large electric generating facility or a high-voltage transmission line,
unless the Public Service Commission (PSC) has issued a certificate for the project.
A public utility is a company or municipality that produces or delivers heat, light,
water, or power to or for the public.
Generally, under current law, a person must submit an application to DNR for
each required permit, including an individual permit to conduct an activity in a
navigable water or a discharge in a wetland. If the applicant is a utility that is
required to obtain a certificate from the PSC, however, the utility must submit a
single application to DNR requesting all of the DNR permits that the utility is
required to obtain for a given project affecting navigable waters and wetlands and
must follow a different procedure for obtaining these DNR permits (utility
application procedure).
This bill removes the exemption in current law that provides that the permit
application procedures that would normally apply to an application for an individual
permit do not apply to an application for an individual permit submitted under the
utility application procedure. This bill also removes the exemption in current law
that provides that the procedures that would normally apply to administrative and
judicial review of a DNR decision on an individual permit do not apply to decisions
on an individual permit submitted under the utility application procedure. Also,
under the bill, the only method of review of a DNR decision with respect to any permit
applied for under the utility application procedure is direct judicial review, not a
contested case hearing.
Also under this bill, there is no opportunity to object to, and request a stay of,
a DNR decision related to a wetland individual permit applied for under the utility
application procedure.
Nonpoint water pollution
This bill provides that DNR may not prohibit the construction of storm water
management ponds in navigable or nonnavigable artificial waterways as a method
for achieving compliance with DNR's prescribed performance standards for sources
of nonpoint water pollution, which is water pollution from diffuse sources. DNR's
rules provide that, for the purpose of determining compliance with performance
standards, DNR may give credit for the use of practices, measures, or techniques
(best management practices) that minimize pollutants carried in runoff. The rules
prohibit DNR from giving credit for a best management practice that is located in a
navigable water. The bill provides that DNR must give credit for any pollutant
reduction achieved by the pond in determining compliance with performance
standards specified in a storm water discharge permit.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB600,1
1Section
1. 23.24 (4) (b) 4. of the statutes is created to read:
AB600,7,32
23.24
(4) (b) 4. A person who engages in an activity listed under sub. (3) (a) in
3the course of performing shoreline maintenance as authorized under s. 30.125.
AB600,2
4Section
2. 30.01 (1am) (c) of the statutes is amended to read:
AB600,7,65
30.01
(1am) (c) An area that possesses significant scientific value, as identified
6by the department
under s. 30.106.
AB600,3
7Section
3. 30.01 (1d) of the statutes is amended to read:
AB600,7,118
30.01
(1d) "Boathouse" means a structure
with one or more walls or sides that
9has been used
for one or more years for the storage of watercraft and associated
10materials
which has one or more walls or sides, regardless of the current use of the
11structure.
AB600,4
12Section
4. 30.025 (5) of the statutes is repealed.
AB600,5
13Section
5. 30.025 (6) of the statutes is created to read: