SB459: Bill Text

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:

SB459,1 Section 1. 23.24 (4) (b) 4. of the statutes is created to read:

SB459,7,3 23.24 (4) (b) 4. A person who engages in an activity listed under sub. (3) (a) in the course of performing shoreline maintenance as authorized under s. 30.125.

SB459,2 Section 2. 30.01 (1am) (c) of the statutes is amended to read:

SB459,7,6 30.01 (1am) (c) An area that possesses significant scientific value, as identified by the department under s. 30.106.

SB459,3 Section 3. 30.01 (1d) of the statutes is amended to read:

SB459,7,11 30.01 (1d) "Boathouse" means a structure with one or more walls or sides that has been used for one or more years for the storage of watercraft and associated materials which has one or more walls or sides, regardless of the current use of the structure.

SB459,4 Section 4. 30.025 (5) of the statutes is repealed.

SB459,5 Section 5. 30.025 (6) of the statutes is created to read:

SB459,7,17 30.025 (6) Review. Notwithstanding s. 227.42, the sole option for review of a decision of the department with respect to a permit under this section or an authorization to proceed under this section is to commence an action in circuit court to review that decision under ss. 227.52 and 227.53.

SB459,6 Section 6. 30.053 of the statutes is created to read:

SB459,8,2 30.053 Applicability of chapter to artificial water bodies. 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.

SB459,7 Section 7. 30.106 of the statutes is created to read:

SB459,8,6 30.106 Areas that possess significant scientific value. (1) Areas that the department may identify as possessing significant scientific value are limited to the following:

SB459,8,8 (a) The portion of a body of water that contains critical habitat for endangered or threatened species.

SB459,8,11 (b) The portion of a body of water that is immediately adjacent to an area that contains critical habitat for endangered or threatened species and that directly affects that habitat.

SB459,8,13 (c) A body of water designated as a wild rice water under a written agreement between the department and the Great Lakes Indian Fish and Wildlife Commission.

SB459,8,15 (d) A body of water in a wetland along Lake Michigan or Lake Superior that the department has identified as an ecologically significant coastal wetland.

SB459,8,16 (e) A river that is included in the national wild and scenic rivers system.

SB459,8,17 (f) A river that is designated as a wild river under s. 30.26.

SB459,8,24 (2) The department may not identify an area as possessing significant scientific value unless it first notifies the joint committee for review of administrative rules in writing of the proposal and obtains the approval of the committee. Any area the department has identified as possessing significant scientific value on the effective date of this subsection .... [LRB inserts date], that is not identified again as possessing significant scientific value using the process under this subsection on or before December 31, 2017, loses this identification.

SB459,8 Section 8. 30.115 of the statutes is created to read:

SB459,9,1 30.115 Ownership of certain filled navigable waters. (1) In this section:

SB459,9,3 (a) "Line of navigation" means the depth of a navigable water that is the greater of the following:

SB459,9,4 1. Three feet.

SB459,9,7 2. The depth required to operate a boat on the navigable water based on normal summertime low levels on the navigable water or summer minimum levels if summer minimum levels are established by the department.

SB459,9,11 (b) "Riparian zone" means the area that extends from riparian land waterward to the line of navigation 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.

SB459,9,16 (2) If a person placed fill on the bed of a navigable water before January 1, 1975, the filled area above the ordinary high-water mark is owned by the riparian owner in whose riparian zone the fill is located on the effective date of this subsection .... [LRB inserts date], if the filled area has continuously remained above the ordinary high-water mark since January 1, 1975.

SB459,9,19 (3) The department may not require the riparian owner of a filled area described under sub. (2) to remove the fill, whether above or below the ordinary high-water mark, from that area.

SB459,9,21 (4) Upon request, the department shall furnish a quitclaim deed to the riparian owner described under sub. (2).

SB459,9,23 (5) This section does not apply to a lake bed area conveyed by the legislature as provided under s. 13.097.

SB459,9 Section 9. 30.12 (1g) (am) of the statutes is created to read:

SB459,10,2 30.12 (1g) (am) A deposit of sand, gravel, or stone that is necessary to perform an activity authorized under s. 30.125 (2) (a).

SB459,10 Section 10. 30.12 (1k) (f) of the statutes is amended to read:

SB459,10,9 30.12 (1k) (f) A decision of If the department against determines that the owner of a structure for which is not entitled to an exemption is claimed under this subsection is subject to a trial de novo, 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.

SB459,11 Section 11. 30.12 (3) (a) 3c. of the statutes is amended to read:

SB459,10,16 30.12 (3) (a) 3c. Place riprap in order to replace or repair existing riprap, other than riprap that is exempt under sub. (1g) (i) or (j). Under the permit, the department shall allow riprap to extend to the top of the bank of the navigable water or 4 feet above the ordinary high-water mark, whichever is lower. In issuing the permit, the department may not impose conditions that prohibit the replacement or repair of riprap located in an area of special natural resource interest.

SB459,12 Section 12. 30.12 (3) (a) 3g. of the statutes is amended to read:

SB459,10,22 30.12 (3) (a) 3g. Place riprap on the bed or bank of a navigable water adjacent to an owner's property in an amount up to and including 100 continuous feet in an inland lake of 300 acres or more. Under the permit the department shall allow riprap to extend to the top of the bank of the navigable water or 4 feet above the ordinary high-water mark, whichever is lower.

SB459,13 Section 13. 30.12 (3) (a) 3r. of the statutes is amended to read:

SB459,11,3 30.12 (3) (a) 3r. Place riprap on the bed or bank of a navigable water adjacent to an owner's property in an amount up to and including 300 continuous feet in a Great Lakes water body. Under the permit the department shall allow riprap to extend to the top of the bank of the navigable water or 4 feet above the ordinary high-water mark, whichever is lower.

SB459,14 Section 14. 30.12 (3) (a) 6. (intro.) of the statutes is renumbered 30.12 (3) (a) 6. and amended to read:

SB459,11,9 30.12 (3) (a) 6. Place a permanent boat shelter adjacent to the owner's property for the purpose of storing or protecting watercraft and associated materials, except that no general or individual permit may be issued for a permanent boat shelter that is constructed after May 3, 1988, if any of the following apply:.

SB459,15 Section 15. 30.12 (3) (a) 6. a., b. and c. of the statutes are repealed.

SB459,16 Section 16. 30.12 (3) (a) 13. of the statutes is amended to read:

SB459,11,18 30.12 (3) (a) 13. Place a seawall to replace an existing seawall for which a permit has been issued or an exemption granted under this chapter, or for which no permit was required at the time the seawall was built. The replacement may not exceed 100 continuous feet in an inland lake of 300 or more acres and may not exceed 300 continuous feet in a Great Lakes water body. In issuing the permit, the department may not impose conditions that prohibit the replacement of a seawall located in an area of special natural resource interest.

SB459,17 Section 17. 30.12 (3) (c) of the statutes is amended to read:

SB459,12,4 30.12 (3) (c) The department may impose conditions on general permits issued under par. (a) 6. to govern the architectural features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The conditions may not govern the aesthetic features or color of boat shelters or the distance at which a boat shelter may extend from the shore and may not be based on the degree to which adjacent land is developed. The conditions shall be designed to ensure the structural soundness and durability of boat shelters. A municipality may enact ordinances that are consistent with this paragraph and with any conditions imposed on general permits issued to regulate the architectural features of boat shelters that are under the jurisdiction of the municipality.

SB459,18 Section 18. 30.12 (3m) (cr) of the statutes is created to read:

SB459,12,9 30.12 (3m) (cr) In determining whether to issue an individual permit to the owner of a proposed permanent boat shelter, the department may not deny the permit on the basis of the distance at which the shelter will extend from the shore or the degree to which adjacent land is developed.

SB459,19 Section 19. 30.121 (1) of the statutes is amended to read:

SB459,12,13 30.121 (1) Definition. In this section, the terms "maintain" and "repair" include replacing structural elements, including roofs, doors, walls, windows, beams, porches, and floors, and foundations.

SB459,20 Section 20. 30.121 (3b) of the statutes is created to read:

SB459,12,21 30.121 (3b) Expansion of historic boathouses. The riparian owner of any boathouse or fixed houseboat extending beyond the ordinary high-water mark of any navigable waterway may expand the boathouse without a permit under s. 30.12 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.

SB459,21 Section 21. 30.121 (3c) of the statutes is amended to read:

SB459,13,2 30.121 (3c) Exception; certain boathouses. Subsection (3) does not apply to repairing or maintaining a boathouse if the boathouse was in existence on December 16, 1979, and the repairing or maintaining does not affect the size , or location, or configuration of the boathouse and does not result in the boathouse being converted into living quarters.

SB459,22 Section 22. 30.121 (3w) (c) of the statutes is renumbered 30.121 (3w) (c) (intro.) and amended to read:

SB459,13,6 30.121 (3w) (c) (intro.) The boathouse is located within in any of the following locations:

SB459,13,8 1. Within a harbor that is being operated as a commercial enterprise or is located on.

SB459,13,9 2. On a river that is a tributary of Lake Michigan or Lake Superior.

SB459,23 Section 23. 30.121 (3w) (c) 3. of the statutes is created to read:

SB459,13,12 30.121 (3w) (c) 3. On an outlying water and the work is limited to the expansion, repair, or maintenance of an existing boathouse.

SB459,24 Section 24. 30.125 of the statutes is created to read: