NR 328.35(9) (9)Individual permit required.
NR 328.35(9)(a)(a) Activities which do not meet the applicable standards in sub. (3), (4), (5), or (6) are otherwise ineligible for a general permit and shall require an individual permit.
NR 328.35(9)(b) (b) The department has authority under s. 30.206 (3r), Stats., to require an individual permit in lieu of a general permit.
NR 328.35 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07; CR 09-123: cr. (3) (p) Register July 2010 No. 655, eff. 8-1-10; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register May 2013 No. 689; corrections in (4) (e), (5) (j) made under s. 13.92 (4) (b) 6., Stats., Register February 2014 No. 698.
NR 328.36 NR 328.36Individual permits.
NR 328.36(1) (1)Procedures.
NR 328.36(1)(a)(a) Individual permits shall be processed according to the procedures in ch. NR 310.
NR 328.36(1)(b) (b) If the department determines that a proposal submitted under this section has the potential to impact an endangered or threatened species in accordance with s. 29.604, Stats., the application shall be deemed incomplete. The department may not consider the application complete or issue an individual permit until the applicant submits documentation to demonstrate one of the following:
NR 328.36(1)(b)1. 1. The project avoids impacts to the endangered or threatened species in accordance with s. 29.604, Stats.
NR 328.36(1)(b)2. 2. The project has received an incidental take authorization under s. 29.604, Stats.
NR 328.36(1)(c) (c) If the applicant modifies the project plans to meet the requirements of par. (b), the modified plans shall be submitted before the department may consider the application complete or issue an individual permit.
NR 328.36(2) (2)Analysis of individual permits. The department shall consider factual data from applicants regarding all of the following factors in evaluating individual permit applications:
NR 328.36 Note Note: The department's analysis of individual permits is not constrained to the general permit standards identified in s. NR 328.35.
NR 328.36(2)(a) (a) The cumulative and individual impact on public rights and interests including fish and wildlife habitat, physical, chemical and biological effects on the adjacent waterway and natural scenic beauty including: interference with navigation and its incidents, such as swimming, boating, fishing and hunting; impacts on natural scenic beauty; and impacts on special concern, threatened or endangered species.
NR 328.36 Note Note: Less developed reaches of rivers and streams will experience greater impacts on natural scenic beauty from the structure and its activity than other more developed reaches.
NR 328.36(2)(b) (b) Impacts on bank and in-stream habitat including: reduced density of woody cover in shallow water; reduced density, coverage and diversity of nearshore vegetation, such as terrestrial, emergent, floating-leafed and submerged zones; designated sensitive areas, spawning or nursery habitat; change in substrate that reduces its suitability for habitat.
NR 328.36(2)(c) (c) The bank erosion potential of the site as determined by the methods in s. NR 328.38 (2).
NR 328.36(2)(d) (d) The erosion potential of the site based on site-specific conditions, including ice.
NR 328.36(2)(e) (e) The effect of the project on the adjoining upland, its ability to prevent erosion and sedimentation into the waterway, and the relative contribution of bank erosion to any excess nutrient and sediment load to the stream.
NR 328.36 Note Note: Assessments of bank erosion contribution to excess sediment load should consider whether the land is adjacent to a surface water identified as impaired by the department and listed pursuant to 33 USC 1313 and 40 CFR 130.7, if the impairment relates to excessive delivery of nutrients or sediments. Assessments may also consider whether the project is located within a watershed draining to surface water identified as impaired by the department, and if the impairment relates to excessive delivery of nutrients or sediments.
NR 328.36 Note Note: Assessments of bank erosion contribution to excess sediment load should consider whether the land is adjacent to surface water identified as outstanding or exceptional resource water under s. 281.15, Stats. Assessments may also consider whether the project is located in watersheds draining to outstanding or exceptional resource waters designated under s. 281.15, Stats.
NR 328.36(2)(f) (f) Whether project designs or specific conditions can avoid or reduce impacts of the structure. Designs shall have high likelihood of success, and duration equal to the life-span of upland structures to be protected, if any.
NR 328.36(2)(g) (g) Whether streambank protection measures allowed without permits or with a general permit would provide adequate erosion control.
NR 328.36 Note Note: Assessments landward of the erosion control site typically include: land use and management, waterway access and use, vegetation management, runoff and stormwater management.
NR 328.36(2)(h) (h) The degree to which the erosion control project rehabilitates or protects native plant community classes endemic to the site.
NR 328.36 Note Note: The following habitat classification guides can be used as benchmarks in this assessment:
NR 328.36 Note Kotar, J. and T.L. Burger (1996) A guide to forest communities and habitat types of central and southern Wisconsin. Department of Forest Ecology and Management, University of Wisconsin - Madison, Madison, Wisconsin.
NR 328.36 Note Kotar, J., J. A. Kovach and T.L. Burger (2002) A guide to forest communities and habitat types of northern Wisconsin., 2nd Edition. Department of Forest Ecology and Management, University of Wisconsin - Madison, Madison, Wisconsin.
NR 328.36 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.
NR 328.38 NR 328.38Data requirements and site assessment methods. Applicants and department staff shall adhere to the following data requirements and site assessment methods:
NR 328.38(1) (1)Identification of ecoregions and urban areas. Ecoregions and urban areas identified in Figure 1 are based on scientific literature characterizing the ecology of Wisconsin streams (Lyons et al. 1996; Wang et al.1997; Lyons et al. 2001; Wang et al. 2003; and Weigel et al. 2006), Omernik 1987, and Omernik et al. 2000. The department shall provide applicants with maps and internet-based location tools for the purpose of determining ecoregion and urban watersheds.
NR 328.38 Note Note: Lyons, J., L. Wang, and T. Simonson. 1996. Development and Validation of an index of biotic integrity for coldwater streams in Wisconsin. North American Journal of Fisheries Management 16: 241-265.
NR 328.38 Note Lyons, J., R.R. Piette, and K.W. Niermeyer. 2001. Development, validation, and application of a fish-based index of biotic integrity for Wisconsin's large warmwater rivers. Transactions of the American Fisheries Society 130:1077-1094.
NR 328.38 Note Omernik, J.M., 1987, Ecoregions of the conterminous United States (map supplement): Annals of the Association of American Geographers, v. 77, no. 1, p.
NR 328.38 Note Omernik, J. M., Chapman, S. S., Lillie, R. A., Dumke, R. T. (2000) “Ecoregions of Wisconsin" Transactions of the Wisconsin Academy of Sciences, Arts, and Letters 88: 77-103
NR 328.38 Note Wang, L., J. Lyons, P. Kanehl, and R. Gatti. 1997. Influences of watershed land use on habitat quality and biotic integrity in Wisconsin streams. Fisheries 22(6):6-12.
NR 328.38 Note Wang, L., J. Lyons, P. Rasmussen, P. Seelbach, T. Simon, M. Wiley, P. Kanehl, E. Baker, S. Niemela, and P.M. Stewart. 2003. Watershed, reach, and riparian influences on stream fish assemblages in the Northern Lakes and Forest Ecoregion, U.S.A. Canadian Journal of Fisheries and Aquatic Sciences 60: 491-505.
NR 328.38 Note Weigel, B.M, J. Lyons, and P. Rasmussen. 2006. Relative influence of environmental variables at multiple spatial scales on fishes in Wisconsin's warmwater nonwadeable rivers. American Fisheries Society Symposium 48:493-511.
NR 328.38(2) (2)Calculation of stream bank erosion intensity index. The department shall provide applicants with worksheets and internet-based computer software for the purpose of calculating the bank erosion potential index (BEPI). When the department or applicants assess erosion at the bank stabilization site, they shall apply methods outlined in Table 1 to calculate a bank erosion potential index (BEPI) score. For each continuous treatment site of 300 feet or less, applicants shall submit at least one BEPI assessment. For continuous treatments greater than 300 feet, applicants shall conduct and submit BEPI assessments at 150 foot intervals along the treatment site.
Table 1
Bank Erosion Potential Index (Bepi) Score Worksheet
Applicants and department staff shall use this worksheet to calculate erosion intensity pursuant to s. NR 328.38 (2). - See PDF for table PDF
NR 328.38 Note Note: Table 1 is adapted from Rosgen, David L. “A Practical Method of Computing Streambank Erosion Rate", Wildland Hydrology Inc., Pagosa Springs, CO, 10 pp.
1. Ordinary High Water Mark (OHWM) means the point on the bank or shore up to which the presence and action of water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognizable characteristics. If bank material is composed of bedrock outcrop, stop with the BEPI assessment at this point; the reported total BEPI score is assumed equal to 0.
2. Maximum bank height means the vertical measure (feet) from the bank toe to the top of the bank lip, irrespective of changes in the water level. Bank toe is the inflection or bending point between the bank face and stream bed.
3. To measure the bank slope (degrees), the rise and run must be measured from the bank toe to the top of the bank lip. With your measure tape or stick, place the end firmly on the bank toe, parallel to the bank face and measure up to the bank lip to find the rise or max bank height. Subsequently, measure the run from the bank toe to the bank lip. From these measures, one should be able to calculate the bank slope with the formula `bank slope= inverse tangent (rise/run)'. Additionally, the BEPI Calculator is available on the Department's website http://dnr.wi.gov. This website automatically calculates the bank slope and BEPI score after inputting fields for bank materials, structures upstream, OHWM height, max bank height, distance to bank face, bank layering/stratification, bank vegetation, and thalweg location.
4. Stratification or bank layering means soils consisting of alternating layers of varying soils or textures.
5. Bank vegetation is the type and abundance of vegetation occurring between the ordinary high water mark (OHWM) and the bank lip. To assess the abundance of vegetation on the targeted bank, apply a 10 foot wide window of assessment from the OHWM to the top of the bank. The following percentages are assigned for the categories: bare soil visible over less than 30% of the surface area=dense vegetation; bare soil visible across 30-59% of the surface area= clumps of vegetation; bare soil visible across 60-90% of the surface area = vegetation sparse; bare soil visible across > 90% of the surface area = vegetation absent. Root wads, tree falls, and snags on the bank are considered in this assessment, because of their influence on thalweg, sediment transport, scour, and bank protection. After assessing the percentage of bare soil in the `box', record its associated point value.
6. Thalweg means the deepest part of the channel or the location of fastest current. To find the thalweg, the channel must be divided into thirds. The applicant needs to perform one or a mixture of tests for the three segments in determining its location. The following tests are suggested: float an object such as an orange peel down the stream to find the segment of fastest current, find the segment with the bubble line visible at the water's surface, or find the deepest part of the channel, if safe. After locating the thalweg, record its proximity to the tested bank, adjacent (closest), center, or opposite (furthest) and record its associated point value.
NR 328.38(3) (3)Bank edge recession measurements. Methods of measuring bank edge recession shall include all of the following: establishment of a physical measurement reference line between at least 2 headstakes; date-imbedded photographs showing the initial installation of the reference line and headstakes; reference distance measures to the bank lip shall be reported on department supplied forms; and time between separate measurements shall equal or exceed 3 months during the open-water season.
NR 328.38 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.
NR 328.39 NR 328.39Enforcement.
NR 328.39(1) (1) Noncompliance with the provisions of ss. 30.12, 30.20 and 30.206, Stats., this chapter, or any conditions of an exemption, general permit or individual permit issued by the department, constitutes a violation and may result in a forfeiture, fine or imprisonment. The department may seek abatement under s. 30.294, Stats., for any activity in violation of ss. 30.12, 30.20 and 30.206, Stats.
NR 328.39(2) (2) If the activity may be authorized by a general permit under s. 30.206, Stats., failure of an applicant to follow the procedural requirements may not, by itself, result in abatement of the activity.
NR 328.39(3) (3) When an after-the-fact permit application has been filed with the department, the department shall follow the procedures in ch. NR 301 for violations.
NR 328.39(4) (4) Any violation of these rules shall be treated as a violation of the statutes they interpret or are promulgated under.
NR 328.39(5) (5) No person may place a shore erosion control structure in a navigable waterway if the activity is not eligible for an exemption, authorized by a general permit or individual permit issued under this chapter, or otherwise authorized under this chapter.
NR 328.39 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.