NR 328.32(3)
(3) Bank erosion control structures solely located above the ordinary high water mark are likely to migrate below the OHWM as the energy of water current is dissipated against the toe of the stream bank. When this migration occurs, the bank erosion control structure is considered subject to the provisions of this chapter.
NR 328.32 Note
Note: A permit is required if land disturbance or excavation exceeds 10,000 square feet on the bank of the navigable waterway (s.
30.19, Stats., and ch.
NR 341) or if the activity is conducted in a wetland (ss.
281.17 and
281.36, Stats.).
NR 328.32 Note
Note: Erosion control activities may be subject to county, city or village ordinances. Local zoning ordinances place restrictions on grading, buffers, and the cutting of vegetation in the shoreland zone. The riparian is required to comply with, and obtain all necessary permits under, local shoreland ordinances.
NR 328.32 History
History: CR 06-126: cr.
Register July 2007 No. 619, eff. 8-1-07.
NR 328.33
NR 328.33 Definitions. In this subchapter:
NR 328.33(1)
(1) “Bank erosion control structure" means a structure with defined shape, size, form and utility constructed and maintained for the purpose of protecting a streambank from erosion.
NR 328.33(2)
(2) “Biological materials" means living or organic materials that are 100% biodegradable such as native grasses, sedges, forbs, shrubs and trees; live stakes and posts; non-treated wood for staking; jute netting; fiber rolls and mats, erosion control blankets and turf reinforcement mats composed of natural fibers; logs; root wads; tree revetments; and branches.
NR 328.33 Note
Note: Temporary breakwaters, with non-biodegradable elements, are considered a permissible element during the plant establishment phase of a biological erosion control project.
NR 328.33(3)
(3) “Biostabilization" means a structure that relies solely on biological materials and may include bank reshaping. Biological bank erosion control structures include but are not limited to native vegetation, fiber rolls, fiber mats, live stakes, brush mattresses, fascines, branch packing, erosion control blankets, turf reinforcement mats, brush layering, encapsulated soil lifts, or revegetation by seeding.
NR 328.33(5)
(5) “Department" means the department of natural resources.
NR 328.33(6)
(6) “Grading" means the physical disturbance of the bank by the addition, removal or redistribution of soil.
NR 328.33(7)
(7) “Inert materials" means those materials that slowly degrade, such as chemically treated wood, stone, stainless and galvanized steel, plastics and synthetic polymers.
NR 328.33(8)
(8) “Integrated bank treatment" means a structure that combines 2 separate treatments: structural treatment with inert materials for toe protection at the base of the bank and biostabilization on the upper portion of the bank.
NR 328.33(10)
(10) “Ordinary high water mark" 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 characteristic.
NR 328.33(11)
(11) “Navigable waterway" means any body of water with a defined bed and bank, which is navigable under the laws of the state. In Wisconsin, a navigable body of water is capable of floating the lightest boat or skiff used for recreation or any other purpose on a regularly recurring basis.
NR 328.33 Note
Note: This incorporates the definition at s.
30.01(4m), Stats., and current case law, which requires a watercourse to have a bed and banks,
Hoyt v. City of Hudson, 27 Wis. 656 (1871), and requires a navigable waterway to float on a regularly recurring basis the lightest boat or skiff,
DeGayner & Co., Inc. v. DNR,
70 Wis. 2d 936 (1975);
Village of Menomonee Falls v. DNR,
140 Wis. 2d 579 (Ct. App. 1987).
NR 328.33(12)
(12) “Replacement" means a degree of structural changes to the bank erosion control structure by which some or all of the structure is removed and recreated. For seawalls, any replacement of a portion of the seawall down to or at the footing of the structure is considered replacement. For riprap, replacement of filter fabric or replacement of the base substrate is considered replacement.
NR 328.33(13)
(13) “Riparian" means an owner of land abutting a navigable waterway.
NR 328.33(14)
(14) “Riprap" means a layer or layers of rock, including filter material, placed on the bed and bank of a navigable waterway to prevent erosion, scour or sloughing of the existing bank.
NR 328.33(15)
(15) “Seawall" means an upright structure that is steeper than 1.5 feet vertical to one foot horizontal and that is installed parallel to the bank to prevent the sliding or slumping of the land and to protect the adjacent upland from the action of surface water. Seawalls are commonly constructed of timber, rock (including gabions), concrete, steel or aluminum sheet piling, and may incorporate biological components. Biostabilization structures steeper than 1.5 feet vertical to one foot horizontal, such as encapsulated soil-lifts are not considered seawalls.
NR 328.33(16)
(16) “Structural treatment" means a system of non-living materials with a specific configuration installed as a means of bank stabilization including, but not limited to, riprap, tree revetments, logs, rootwads, dormant post, jacks, coir logs, bulkheads, and stream barbs.
NR 328.33(17)
(17) “Toe" means the break in slope at the foot of a bank where it meets the streambed.
NR 328.33(18)
(18) “Wetland" means an area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.
NR 328.33 Note
Note: Common law doctrine of avulsion secures to the waterfront property owner the ability to reclaim land suddenly lost to erosion, AG ex rel Becker v. Bay Boom Wild River and Fur Company, 172 Wis. 363 (1920).
NR 328.33 History
History: CR 06-126: cr.
Register July 2007 No. 619, eff. 8-1-07.
NR 328.34
NR 328.34 Pre-existing structures. A streambank erosion control structure authorized by department permit prior to August 1, 2007, shall continue to be authorized, provided the structure is maintained in compliance with all the conditions of the original permit. Any modifications to the structure that do not comply with the original permit conditions shall require a new permit and shall comply with all standards in this section. Bank erosion control structures that were not authorized prior to August 1, 2007, require authorization prior to any repair, modification or replacement.
NR 328.34 History
History: CR 06-126: cr.
Register July 2007 No. 619, eff. 8-1-07.
NR 328.35(1)(1)
Procedures. General permits shall be processed according to the procedures in ch.
NR 300.
NR 328.35(3)(a)(a) 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 a general permit until the applicant submits documentation to demonstrate one of the following:
NR 328.35(3)(a)1.
1. The project avoids impacts to the endangered or threatened species in accordance with s.
29.604, Stats.
NR 328.35(3)(b)
(b) If the applicant modifies the project plans to meet the requirements of par.
(a), the modified plans shall be submitted before the department may consider the application complete or issue a general permit.
NR 328.35(3)(c)
(c) The bank erosion control structure may not be placed in a wetland.
NR 328.35 Note
Note: Eligibility for a general permit does not automatically result in a federal permit or state water quality certification for fill in wetlands. Some projects involving minimal wetland fill may be eligible for authorization under a U. S. Army Corps of Engineers general permit with has already been granted state water quality certification or a general permit under s.
281.36 (3g) (b), Stats. (under development). All other projects affecting wetlands will require individual water quality certification including public notice as required by s. 401, Federal Clean Water Act, and s.
281.36 (3b) (b), Stats., and carried out under chs.
NR 103 and
299. For further instructions, see the department's website at
http://dnr.wi.gov under the topic “Waterway and Wetland Permits."
NR 328.35(3)(d)
(d) Bank erosion control structures may be placed only by a riparian.
NR 328.35(3)(e)
(e) To minimize adverse impacts on fish movement, fish spawning, egg incubation periods and high stream flows, placement may not occur during any of the following time periods:
NR 328.35(3)(e)1.
1. For trout streams identified under s.
NR 1.02 (7) and perennial tributaries to those trout streams, September 15 through May 15.
NR 328.35(3)(e)2.
2. For all waters not identified in subd.
1. and located south of state highway 29, March 15 through May 15.
NR 328.35(3)(e)3.
3. For all waters not identified in subd.
1. and located north of state highway 29, April 1 through June 1.
NR 328.35(3)(e)4.
4. The applicant may request that the requirement in subd.
1.,
2. or
3. be waived by the department on a case-by-case basis, by submitting a written statement signed by the local department fisheries biologist, documenting consultation about the proposed shore erosion control project, and that the local department fisheries biologist has determined that the requirements of this paragraph are not necessary to protect fish spawning for the proposed project.
NR 328.35(3)(f)
(f) Any grading, excavation and land disturbance shall be confined to the minimum necessary for the construction and may not exceed 10,000 square feet.
NR 328.35 Note
Note: A permit is required under s.
30.19, Stats., and ch.
NR 341 if land disturbance or excavation exceeds 10,000 square feet on the bank of the navigable waterway. Bank shaping activities necessary to protect stream and river shorelines from erosion on lands used entirely for agriculture are exempt from this subchapter.
NR 328.35(3)(g)
(g) Erosion control measures shall meet or exceed the technical standards for erosion control approved by the department under subch.
V of ch. NR 151. Any area where topsoil is exposed during construction shall be immediately sodded, seeded and mulched, covered with erosion mat or riprapped to stabilize disturbed areas and prevent soils from being eroded and washed into the waterway.
NR 328.35(3)(h)
(h) Unless part of a permanent stormwater management system, all temporary erosion and sediment control practices shall be removed upon final site stabilization. Areas disturbed during construction or installation shall be restored.
NR 328.35(3)(i)
(i) Vegetation, such as seeding, plant plugs, and dormant plantings shall be plant species native to the area of Wisconsin where the project is located. Non-invasive cool season species such as Virginia wild rye, Timothy, alfalfa, alsike clover, orchard grass, Smooth brome grass and red top, may be incorporated into native seed mixes for the purpose of rapid stabilization of critical sites adjacent to agricultural fields.
NR 328.35(3)(j)
(j) All equipment used for the project shall be designed and properly sized to minimize the amount of sediment that can escape into the water.
NR 328.35(3)(k)
(k) The stabilization method shall follow the natural contour of the shoreline. No waterward extension of the property is permitted other than what is reasonably necessary to conduct the project and protect the existing bank. Except as provided in sub.
(4) (d), no soil or similar fill material may be placed in a wetland or below the ordinary high water mark of any navigable waterway.
NR 328.35(3)(L)
(L) Erosion control structures shall begin and end at a stabilized or controlled point.
NR 328.35(3)(m)
(m) Except as required for appropriate toe installation of the erosion control structure, dredging is not permitted under this section.
NR 328.35(3)(n)
(n) The erosion control structure design and placement may not result in a net decrease in the density or size-structure of tree-falls or logs in the water or on the bed and banks of the stream.
NR 328.35(3)(o)
(o) Except for the Driftless Area and Prairie Pothole Region, all trees greater than 4
‶ DBH (diameter breast high) removed as part of the erosion control project within 35 feet of the ordinary high water mark shall be incorporated into the waterward portion of the erosion control design.
NR 328.35 Note
Note: Driftless Area and Prairie Pothole Region can be found in s.
NR 328.38, Figure 1.
NR 328.35(3)(p)
(p) To stop the spread of invasive species and viruses from one navigable waterway to another navigable waterway, all equipment or portions of equipment used for constructing, operating, or maintaining the project, including tracked vehicles, barges, boats, silt or turbidity curtains, hoses, sheet piles, and pumps, shall be decontaminated for invasive species and viruses before and after use or prior to use within another navigable waterway. Decontamination activities shall be performed by taking all actions specified in either subd.
1. to
3. or
8. Decontamination shall include either subd.
4.,
5.,
6.,
7., or
8. for any equipment, or portions of equipment, that is used in non-frozen navigable waters when the air temperature is above 19 degrees Fahrenheit at the time the decontamination procedures take place.
NR 328.35(3)(p)1.
1. Inspect all equipment used for constructing, operating, or maintaining the project and remove all plants and animals, and other mud, debris, and similar materials.
NR 328.35 Note
Note: This does not apply to water in closed engine cooling systems or water tanks, or containers of potable drinking water or other beverages meant for human consumption. If a tanker truck discharges water collected from navigable waters in upland areas, the tank does not require disinfection.
NR 328.35(3)(p)3.
3. Dispose of plants and animals in the trash. An operator may not transfer plants or animals or water from one navigable waterway to another.
NR 328.35(3)(p)4.
4. Wash equipment at a temperature of not less than 212 degrees Fahrenheit water (steam clean).
NR 328.35(3)(p)5.
5. Wash equipment with soap and water or high pressure water of not less than 2000 pounds per square inch.
NR 328.35 Note
Note: Additional drying techniques including drying through natural or mechanical means or changes in drying duration may be submitted to the department for review and approval.
NR 328.35(3)(p)7.
7. Disinfect equipment with 200 parts per million (0.5 ounces per gallon) chlorine for not less than 10 minute contact time. Every effort should be made to keep the disinfection solution and rinse water out of surface waters.
NR 328.35 Note
Note: Chlorine refers to either household bleach solution (5.25% chlorine) or granular chlorine (70% calcium hypochlorite).
NR 328.35(3)(p)8.
8. Follow the most recent department approved disinfection protocols or department approved best management practices for infested waters. The department shall maintain on its website and make available at its offices a list of the most recent disinfection protocols or department approved best management practices for invasive species and viruses.
NR 328.35 Note
Note: See the department's website at:
http://dnr.wi.gov under the topic “Waterway and Wetlands." Recommendations for additional disinfection or decontamination protocols or department approved best management practices may be submitted to the department for review and approval to be added to this list.
NR 328.35(4)
(4)
Biostabilization. Biostabilization on the bed or bank of a navigable river or stream may be authorized under this general permit if it meets the requirements of sub.
(3) and all of the following requirements:
NR 328.35(4)(a)
(a) The project site is not located on a federal or state, under ss.
30.26 and
30.27, Stats., designated wild or scenic river.
NR 328.35(4)(b)
(b) The project site is located in the Driftless Area and Prairie Pothole Region, or Southeastern Wisconsin Till Plains and Chiwaukee Prairie Region, or is located in an urban watershed as identified in s.
NR 328.38, or is within village or city limits.
NR 328.35 Note
Note: Driftless Area and Prairie Pothole Region, and Southeastern Wisconsin Till Plains and Chiwaukee Prairie Region can be found in s.
NR 328.38, Figure 1.
NR 328.35 Note
Note: Village or city boundaries are identified according to Tiger 2000 Census.
NR 328.35(4)(c)
(c) Structural treatment practices shall be sloped to 1.5 horizontal to one foot vertical or flatter. Bank treatments without structural toe protection and only revegetation shall be sloped to 2 foot horizontal to one foot vertical or flatter. Structural treatments may not include inert materials and are limited to biological materials.
NR 328.35(4)(d)
(d) The placement of soil below the ordinary high water mark is allowed only for the establishment of biological materials.
NR 328.35(5)
(5)
Integrated bank treatment. Integrated bank treatment on the bed or bank of a navigable river or stream may be authorized under this general permit if it meets the requirements of sub.
(3) and all of the following requirements and limitations:
NR 328.35(5)(a)
(a) The project site is located in the Driftless Area and Prairie Pothole Region, or Southeastern Wisconsin Till Plains and Chiwaukee Prairie Region, or is located in an urban watershed as identified in s.
NR 328.38, or is within village or city limits.
NR 328.35 Note
Note: Driftless Area and Prairie Pothole Region, and Southeastern Wisconsin Till Plains and Chiwaukee Prairie Region can be found in s.
NR 328.38, Figure 1.
NR 328.35 Note
Note: Village or city boundaries are identified according to Tiger 2000 Census.
NR 328.35(5)(b)
(b) For projects located within village or city boundaries in urban watersheds identified in s.
NR 328.38 (1); The project site must equal or exceed a Bank Erosion Potential Index (BEPI) of 20 as determined by the method in s.
NR 328.38 (2), or the bank edge recession must equal or exceed 0.5 feet per year as described by the method in s.
NR 328.38 (3). For all other project locations; the project site must equal or exceed a Bank Erosion Potential Index (BEPI) of 20 as determined by the method in s.
NR 328.38 (2).
NR 328.35 Note
Note: NR 328.38 (3) requires that the time between separate measurements shall equal or exceed 3 months during the open-water season.
NR 328.35 Note
Note: The applicant will satisfy the “equal to or greater than 0.5 feet per year" requirement by demonstrating that the bank edge recession is equal to or greater than 1.5 inches per 3 months during the open-water season.
NR 328.35(5)(c)
(c) The total project length may not exceed 500 linear feet of stream bank per
¼ mile of stream reach.
NR 328.35(5)(d)
(d) The project site is not located on federal or state (under ss.
30.26 and
30.27, Stats.), designated wild or scenic river.
NR 328.35(5)(e)
(e) Stone associated with toe protection shall be clean field stone or quarry stone appropriately sized according to the USDA, NRCS Wisconsin Supplement to the Engineering Field Handbook Chapter
16 - Streambank and Shoreline Protection.
