Chapter NR 345
DREDGING IN NAVIGABLE WATERWAYS
Ch. NR 345 NoteNote: Chapter NR 345 was created as an emergency rule effective April 19, 2004; chapter NR 345 was repealed and recreated by emergency rule effective August 24, 2004.
NR 345.01NR 345.01 Purpose. The purpose of this chapter is to establish reasonable procedures and limitations for exempt activities, general permits and individual permits for removal of material from the beds of navigable waterways as regulated under s. 30.20, 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 345.01 HistoryHistory: CR 04-087: cr. Register April 2005 No. 592, eff. 5-1-05. NR 345.02NR 345.02 Applicability. This chapter applies to removal of material from the bed of navigable waterways under s. 30.20 (1), (1g) (b), (1m), (1t) and (2), Stats. Any person that intends to remove material from the bed of a navigable waterway shall comply with all applicable provisions of this chapter and any permit issued under this chapter. NR 345.02 NoteNote: For most dredging projects, the discharge of carriage return water is regulated by ch. 283, Stats., and requires a Wisconsin pollutant discharge elimination system (WPDES) permit. Similarly, for most dredging projects, the disposal of dredged material is regulated by ch. 289, Stats., and requires authorization under ch. NR 500. In accordance with 2003 Wisconsin Act 118, removal of material from non-navigable waterways is no longer regulated under s. 30.20, Stats. NR 345.02 HistoryHistory: CR 04-087: cr. Register April 2005 No. 592, eff. 5-1-05. NR 345.03(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 345.03 NoteNote: “Area of special natural resource interest” means any of the following:
NR 345.03 Note(a) A state natural area designated or dedicated under ss. 23.27 to 23.29, Stats. NR 345.03 Note(b) A surface water identified as a trout stream by the department under s. NR 1.02(7). NR 345.03 Note(bm) A surface water identified as an outstanding or exceptional resource water under s. 281.15, Stats. NR 345.03 Note(c) An area that possesses significant scientific value, as identified by the department in s. NR 1.05. NR 345.03 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 345.03(2)(2) “De minimus” activity means the dredging of less than 2 cubic yards in a calendar year from a specific waterbody or disturbance of bottom material during the manual removal of aquatic plants that meet the requirements of s. NR 109.06 (2). NR 345.03 NoteNote: Where the bed material is privately owned, the permission of the property owner is required.
NR 345.03(3)(3) “Department” means the department of natural resources. NR 345.03(4)(4) “Dredged material” means any material removed from the bed of a navigable waterway by dredging. NR 345.03(5)(5) “Dredging” means any part of the process of the removal or disturbance of material from the bed of a navigable waterways, transport of the material to a disposal, rehandling or treatment facility; treatment of the material; discharge of carriage or interstitial water; and disposal of the material. For the purpose of ch. 30, Stats., dredging does not include “de minimus” activities as defined in sub. (2). NR 345.03(6)(6) “Final stabilization” means that all land disturbing construction activities at the site have been completed and that a uniform perennial vegetative cover has been established with a density of at least 70% of the cover for the unpaved areas and areas not covered by permanent structures or that employ equivalent permanent stabilization measures. NR 345.03 NoteNote: Notwithstanding substances that meet the definition of hazardous substances in s. 289.01 (11), Stats., for the purpose of removing material from the bed of navigable streams and lakes, “hazardous substances” include all chemicals present at concentrations at, or greater than the threshold effect concentration as published in Consensus Based Contaminated Sediment Evaluation (DNR 2001). NR 345.03(7k)(7k) “Jetting” means the action of dredging bottom sediments, including disturbing or resuspending sediment, while using water or air forced through a hose by means of a pump or vacuum to dislodge and collect aquatic plants, tubers or seeds. NR 345.03(8)(8) “Manual dredging” means removal or disturbance of bottom material by hand or using a hand-held device without the aid of external or auxiliary power. Manual dredging is often associated with the collection of aquatic insects for bait, removal of nuisance vegetation or debris and the panning for gold or other material. For the purpose of ch. 30, Stats., manual dredging does not include “de minimus” activities as defined in sub. (2). NR 345.03(9)(9) “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 345.03 NoteNote: 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 345.03(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 345.03(10r)(10r) “Plant and animal nuisance deposit” means a recent and natural deposit within the swash zone of a waterway of mussels, dead fish, Cladophora or similar natural, biological-based material caused by wave action in a quantity that is causing an annoyance, damage, or health issue to the public or waterway. NR 345.03 NoteNote: “Plant and animal nuisance deposit” does not include the natural deposition of the native lakebed material like sand, cobble, silt, detritus, and other organic material.
NR 345.03 NoteNote: Effective Aug. 1, 2012, s. 30.20(1t)(b), Stats., is repealed. As provided by s. 30.206(1r), Stats., the General Permit for Removal of Plant and Animal Nuisance Deposits authorized by s. 30.20(1t) (b), Stats., and s. NR 345.04(2)(b), (c), and (im) in which this definition is used is invalid effective June 6, 2013. This permit is replaced with Statewide General Permit GP5-2013-WI (WDNR-GP5-2013), which is found on the department website http://dnr.wi.gov under the topic ”Waterway.” WDNR-GP5-2013-WI expires June 5, 2018, unless renewed, modified, or revoked on or before that date. NR 345.03(11)(11) “Previously dredged area” means an area below the ordinary high water mark of a navigable waterway from which material was historically removed. NR 345.03(12)(12) “Riparian” means an owner of land abutting a navigable waterway. NR 345.03(12m)(12m) “Rutting” is defined as an elongated depression caused by wheels or tracks of machinery, equipment or other vehicles and is 6 inches deep or more. NR 345.03(13)(13) “Stabilize” means the process of making a site steadfast or firm, minimizing soil movement by the use of practices such as mulching and seeding, sodding, landscaping, paving, graveling or other appropriate measures. NR 345.03(13m)(13m) “Swash zone” as defined by the United States Army Corps of Engineers Coastal Engineering Manual, means the zone of wave action on the beach, which moves as water levels vary, extending from the limit of run-down to the limit of run-up. NR 345.03 NoteNote: The “swash zone” does not typically include areas that are stabilized with vegetation. The United States Army Corps of Engineers Coastal Engineering Manual can be found at: http://chl.erdc.usace.army.mil/cem. NR 345.03(14)(14) “Utility crossing” means dredging by plow, vibratory plow or open trench methods, below the ordinary high water mark of a navigable waterway for the installation of cables, conduits or pipelines by an entity providing service for conveying any fluids, gases, electricity and communications or other public or private utility functions. NR 345.03 HistoryHistory: CR 04-087: cr. Register April 2005 No. 592, eff. 5-1-05; CR 05-037: cr. (7k) Register December 2005 No. 600, eff. 1-1-06; CR 07-112: cr. (10g), (10r), (12m) and (13m) Register July 2008 No. 631, eff. 8-1-08. NR 345.04(1)(b)(b) Applicable activities. The dredging of a farm drainage ditch which was not a navigable stream before ditching that meets all of the standards in par. (c), is exempt from the permit requirements of s. 30.20 (1) and (2), Stats., in accordance with s. 30.20 (1g) (a), Stats., manual dredging that meets all of the standards in par. (d) is exempt from the permit requirements of s. 30.20 (1) and (2), Stats., in accordance with s. 30.20 (1g) (b) 2., Stats. NR 345.04 NoteNote: Eligibility for an exemption or 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 which 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 345.04(1)(c)(c) Standards for dredging of a farm drainage ditch which was not a navigable stream before ditching. Dredging of a farm drainage ditch which was not a navigable stream before ditching is eligible for an exemption subject to the following limitation: NR 345.04(1)(c)1.1. The project is located in a navigable stream that does not have stream history. NR 345.04(1)(c)2.2. The applicant has notified the department of the proposed project 10 days prior to dredging. NR 345.04(1)(c)3.3. The dredging may not have a long-term adverse effect on cold-water fishery resource or may not destroy cold water or warm water fish spawning beds or nursery areas. NR 345.04(1)(c)4.4. The dredged material may not be temporarily or permanently placed in a wetland, floodway or below the ordinary high water mark of a navigable waterway. NR 345.04(1)(c)5.5. The person conducting the dredging is the riparian owner or has permission of the riparian owner to remove bottom material.
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