Wisconsin Legislature: Chapter NR 328

Ch. NR 328 NoteNote: Sections NR 328.01 to 328.09 were created as emergency rules effective April 19, 2004. Sections NR 328.01 to 328.09 were repealed and recreated by emergency rule effective August 24, 2004.

subch. I of ch. NR 328Subchapter I — Shore Erosion Control Structures on Inland Lakes and Impoundments

NR 328.01NR 328.01 Purpose.

NR 328.01(1)(1) The purpose of this subchapter is to establish reasonable procedures and limitations for exempt activities, general permits and individual permits for placement of shore erosion control structures in inland lakes and impoundments as regulated under s. 30.12, Stats., in order to protect the public rights and interest in the navigable, public waters of the state as defined in s. 30.10, Stats.

NR 328.01(2)(2) The standards for exemptions, general permits and individual permits in this chapter balance the reasonable right of riparians to control shore erosion under Wisconsin law with the public rights and interests in navigable waters. (Doemel v. Jantz, 180 Wis. 225, 193 N.W., 393 (1923)). The public interest in navigable waters includes navigation, recreation, fish and wildlife habitat, water quality and natural scenic beauty.

NR 328.01(3)(3) Natural shoreline features provide natural erosion control in various ways. Nearshore lakebeds and beach slopes change and shoals form, erosion uncovers or sorts out sand, gravel, cobbles, boulders and bedrock from beneath glacial till and other fine soils. These more energy resistant materials are formed into wave-breaking, energy-absorbing barriers that eliminate, or slow, further erosion. Natural vegetation provides erosion control in several ways. Plants form a network of roots that hold soil particles together and stabilize the bank. Exposed stalks, stems, branches, foliage and fallen trees dampen waves, reduce local flow velocities, and dissipate energy against the plant rather than eroding the soil. Vegetation also acts as a buffer to trap suspended sediment and induce its deposition.

NR 328.01(4)(4) Shoreline erosion control structures allowed under this rule are setting-dependent and based on erosive energy at a site. Erosive energy is a reflection of habitat features at a site. Low-energy settings are found to contain fine-size nearshore sediments, stable natural vegetation, and absent or natural levels of erosion. In low-energy and some moderate energy sites vegetation can effectively meet erosion control needs without infringement on the public interest. Shore protection from vegetation alone may be inadequate in some low- to moderate-energy settings and many high-energy settings; therefore, methods that rely on technical structures or a combination of vegetation with technical structures, i.e., large substrates, may be necessary. Riprap, vegetated riprap and integrated toe protection are preferred structural shore protection methods in high-energy settings with erosion problems.

NR 328.01(5)(5) Standards for exemptions are intended to provide clear and consistent requirements so that individuals can determine whether they qualify, and easily design projects to meet the requirements. To achieve this, exemption standards establish reasonable installation practices to minimize environmental impacts, establish reasonable construction and design requirements consistent with the purpose of the activity, and establish reasonable limitations on location.

NR 328.01(6)(6) Standards for general permits are intended to ensure that cumulative adverse environmental impact of authorized activities is insignificant and that issuance of the general permit will not injure public rights or interests, cause environmental pollution as defined in s. 299.01 (4), Stats., or result in material injury to the rights of any riparian owner. To achieve this, general permit standards establish: construction and design requirements consistent with the purpose of the activity; location requirements that ensure that the activity will not have an adverse impact on fish and wildlife habitat, water quality and natural scenic beauty, or materially interfere with navigation or have an adverse impact on the riparian property rights of adjacent riparian owners.

NR 328.01(7)(7) Standards and factors for individual permits are intended to provide direction for detailed evaluation of permit applications, and to balance case-by-case review with consistent decision-making. Individual permits may only be granted where the department determines that the structure will not materially obstruct navigation, will not be detrimental to the public interest, and will not materially reduce the flood flow capacity of a stream.

NR 328.01 HistoryHistory: CR 02-099: cr. Register April 2005 No. 592, eff. 5-1-05.

NR 328.02NR 328.02 Applicability.

NR 328.02(1)(1) Except as provided in s. 30.2023, Stats., this subchapter applies to construction, placement and maintenance of shore erosion control structures regulated under s. 30.12 (1), (1g) (a), (i), (j) and (k), (2m), (3) (a) 3c., 3g., 3r. and 13. and (3m), Stats. Any person that intends to construct, place or maintain a shore erosion control structure in any inland lake or impoundment shall comply with all applicable provisions of this chapter and any permit issued under this chapter.

NR 328.02 NoteNote: This subchapter does not apply to the Great Lakes or outlying waters as defined in s. 29.001(63), Stats.

NR 328.02 NoteNote: Shore erosion control structures for lakes and impoundments in the areas described in s. 30.203, Stats., (Seawalls; Wolf River and Fox River basins) that do not qualify for an exemption are regulated under this chapter.

NR 328.02(2)(2) Shore erosion control measures such as grading to establish a stable slope, revegetation or other bioengineering methods that do not involve the placement of structures on the bed of a waterway are not regulated under s. 30.12, Stats., or this subchapter.

NR 328.02 NoteNote: 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.

NR 328.02 HistoryHistory: CR 02-099: cr. Register April 2005 No. 592, eff. 5-1-05.

NR 328.03NR 328.03 Definitions. In this subchapter:

NR 328.03(1)(1) “Area of special natural resource interest” has the meaning in s. 30.01 (1am), Stats., and as identified by the department in s. NR 1.05.

NR 328.03 NoteNote: “Area of special natural resource interest” means any of the following:

NR 328.03 Note(a) A state natural area designated or dedicated under ss. 23.27 to 23.29, Stats.

NR 328.03 Note(b) A surface water identified as a trout stream by the department under s. NR 1.02 (7).

NR 328.03 Note(bm) A surface water identified as an outstanding or exceptional resource water under s. 281.15, Stats.

NR 328.03 Note(c) An area that possesses significant scientific value, as identified by the department in s. NR 1.05.

NR 328.03 NoteInformation and lists can be obtained by contacting the department, or found on the department’s website at http://dnr.wi.gov, under the topic “Waterway and Wetland Permits”.

NR 328.03(2)(2) “Biological shore erosion control structure” means a structure that relies solely on biological materials.

NR 328.03(3)(3) “Biological materials” means living or organic materials that are biodegradable such as native grasses, sedges, forbs, shrubs and trees; live stakes and posts; non-treated wood; jute netting; fiber rolls and mats; logs; and branches.

NR 328.03 NoteNote: Temporary breakwaters, with non-biodegradable elements, are considered a permissible element during the plant establishment phase of a biological erosion control project.

NR 328.03(4)(4) “Commercial marina” has the meaning in ch. NR 326.