AB500: Bill Text

AB500,11,15 CHAPTER 30

AB500,11,18 SUBCHAPTER II NAVIGABLE WATERS AND NAVIGATION IN GENERAL

AB500, s. 27 Section 27. 30.035 (1) (b) of the statutes is created to read:

AB500,11,22 30.035 (1) (b) A stream is navigable in fact if it is capable of floating any boat, skiff, or canoe that is of the shallowest draft and is of a type used for recreational purposes.

AB500, s. 28 Section 28. 30.035 (3) and (4) of the statutes are created to read:

AB500,12,4 30.035 (3) Determining navigability of streams by department. (a) The department may determine whether a stream is navigable in fact by means of actual navigation. If the department does so, the department shall use a boat, skiff, or canoe, carrying one adult, that is of the shallowest draft and that is of a type used for recreational purposes. The department may determine the stream to be navigable in fact by means of navigation even though any of the following applies:

AB500,12,6 1. It is necessary to drag or carry the boat, skiff, or canoe over occasional areas of shallow water or occasional obstructions.

AB500,12,9 2. The conditions of navigability are present only in regularly recurring periods of high water, so long as the periods of high water are of sufficient duration to allow recreational use.

AB500,12,11 3. The conditions of navigability are the result of natural or artificial conditions, if the natural or artificial conditions are of long standing.

AB500,12,15 (b) The department may determine whether a stream is navigable in fact based on measurements or calculations that predict, to a reasonable scientific certainty, the existence of water in the stream sufficient to allow actual navigation as required for a determination of navigability under par. (a).

AB500,12,17 (c) The department may determine whether a stream is navigable in fact based on reliable records that show a history of actual navigation.

AB500,12,21 (d) In addition to the department, any person may determine whether a stream is navigable in fact by using a method described in pars. (a) to (c). A stream is presumed to be navigable as a matter of law if it is determined to be navigable in fact using a method described in pars. (a) to (c).

AB500,13,3 (4) Maps and data. The department shall develop, and make publicly available, maps and data that show the results of determinations of navigability that are made by the department. At a minimum, the maps and data shall include navigability determinations made after the effective date of this subsection .... [revisor inserts date]. To the extent practicable, within the constraints of available staff and funds, the department shall incorporate past determinations of navigability into the maps and data.

Note: The determination of whether a lake or stream meets the legal standard of navigability is critical, both for the public and for riparian property owners, because it is the means for determining whether a project that affects surface waters is subject to the regulations in subch. II of ch. 30, through the statutory system of permits, contracts and other regulations. It is also critical to determining the property rights of and among riparian owners.

The special committee has determined that public confidence in the regulatory system for navigable waters is being undermined by the lack of a clear, publicly accessible statement of: (1) the legal standard used to determine if streams are navigable; and (2) the various methods that the DNR may use to determine if a particular stream meets the legal standard of navigability.

With respect to the first issue, above, the legal standard for determining if a stream is navigable is currently found in court cases and in a very brief description in s. 30.10. To address the concerns regarding the ability of members of the public to locate the legal standard for navigability of a stream, this bill restates the current test of navigability that is found in court cases and the statutes. In these provisions, the special committee is merely restating and not recommending a change in the legal standard for determining whether a stream is navigable.

With respect to the 2nd issue, above, the methods that the DNR currently uses to determine if a lake or stream is navigable are not currently set forth in any statute or rule. To address the concerns regarding the methods used by DNR to determine if a stream is navigable, this bill proposes a combination of statutes and rules to expressly state the test of navigability. The DNR is required to make its determinations of navigability using, at a minimum, a boat, skiff, or canoe of the shallowest draft used for recreational purposes, with one adult in the boat, skiff, or canoe. This method of determining navigability is the "test" set forth in Wisconsin supreme court cases. The DNR is also directed to promulgate rules (see s. 30.04 (2) in this bill) describing the methods it uses to determine if a lake or stream is navigable. In addition to the test involving actual navigation, the DNR may also use other methods to determine navigability of streams (such as measurements or calculations), so long as those methods predict sufficient water in the stream to allow for actual navigation during periods of high water.

The special committee's objective in recommending this change is to create a test of navigability for streams that will be applied consistently throughout the state by the DNR. For the first time, this will give the test of navigability for streams a clear public statement, a substantial degree of predictability and repeatability and, from the public perspective, a sense of fairness. This test of navigability will lessen the chance for the application of public rights in navigable waters to depend on the choices made by DNR staff regarding the type of watercraft and the amount of weight carried in the watercraft.

The special committee is not recommending a change in the statutes related to the determination of navigability for lakes. The current statutory standard for lakes is "navigable in fact", and does not appear to cause problems. For consistency, the phrase "for any purpose whatsoever" is applied to lakes under this bill, just as that phrase applies to streams under current s. 30.10 (2). The public concerns regarding the test of navigability relate to streams, particularly those at the margins between navigability and nonnavigability.

The special committee discussed, but chose not to recommend, a test of navigability for streams that involves specification of the size and weight of the canoe, paddlers, and cargo, as well as other aspects of the test. Although court cases mention depth of water, and duration of high water, the courts are referring to evidence that supports determinations of navigability, and not to the test of navigability.

The current legal standard of navigability is summarized in Memo No. 4, Alternatives for Consideration by the Special Committee: The Definition of Navigability and Related Issues (November 20, 2000). Memo No. 4 discusses the leading case on the navigability of streams, DeGayner and Co. v. Department of Natural Resources. The key provisions of the "test" of navigability in DeGayner are that navigability of a stream is tested with the shallowest draft boat available for recreational use, such as a kayak or canoe, and that navigability is determined based on the amount of water in the stream during the periodic and recurring spring runoff.

With respect to the depth of the stream, the supreme court noted that evidence had been presented to the trial court in DeGayner that canoes and kayaks used for recreational purposes could be floated in as little as 3 inches of water. With respect to the duration of high water, the supreme court cited an earlier case that had found navigability during periodic rises of a stream from 4 to 13 days duration.

However, it is important to understand that these numeric standards were not adopted by the supreme court as part of the "test" for determining whether a stream is navigable. DeGayner was the review of a judgment of the circuit court which had sustained the order of the DNR determining that the stream in question was navigable in fact. Conflicting evidence had been presented to the trial court, including testimony by DNR employees that the stream was not navigable. The legal issue in DeGayner was whether there was "substantial evidence" in the record to support the DNR determination. The substantial evidence standard for review of agency determinations does not require the court to find that there was a preponderance of evidence to sustain the agency's findings, but rather that the finding was supported by substantial evidence in view of the entire record. Thus, in referring to 3 inches of water and 4 to 13 days of high water, the court was acknowledging evidence that supported the DNR determination. The court's holding in DeGayner did not specify how much water must be available, for how long, or even require that the determination of navigability be conducted by means of actual navigation.

The special committee's recommendation continues to allow various other testing methods, and to allow the exercise of discretion and judgment by the DNR. The supreme court has not precluded the use of calculations of water depth and duration, consultation of historic records, or any other method of determining navigability, so long as that evidence relates to the potential for actual navigation.

The special committee acknowledges that the current court test of navigability is based on any form of recreational use of waters for boating. It is not appropriate to make the statutory test overly precise, so as to exclude any common methods of or future developments in recreational boating. The special committee determined that a more precise test of navigability would, in fact, involve a change from current law.

Any determination of navigability using the statutory methods is cast as a presumption, which can be rebutted by other evidence of navigability or nonnavigability. It should be noted that the presumption applies to any determination of navigability or nonnavigability, regardless of who makes the determination. Thus, the presumption could apply in a dispute between riparian owners, in which the navigability or nonnavigability of the stream was at issue.

This bill uses "lake" and "stream" in new s. 30.035 and elsewhere in subch. II of ch. 30. There does not appear to be a pattern in the cases or statutes with respect to these terms. Other terms are used throughout the statutes to describe surface waters, including river, slough, bayou, marsh, pond, spring pond, glacial pothole lake, flowage, creek, bay, watercourse, and brook. No legal significance attaches to the use of any of these terms. "Lake" and "stream" are used as collective terms to refer to all such waters.

AB500, s. 29 Section 29. 30.04 of the statutes is created to read:

AB500,15,2 30.04 Rule making. (1) The department may promulgate rules under this chapter.

AB500,15,3 (2) The department shall promulgate rules that describe all of the following:

AB500,15,5 (a) The standards in common law and statutes for determining whether a body of water is a lake or stream.

AB500,15,7 (b) The methods used by the department for making determinations of whether a lake or stream is navigable under s. 30.035.

AB500,15,9 (c) The public interest and public rights and the rights of riparian owners in navigable waters.

AB500,15,12 (d) The methods for evaluating how an activity, deposit, or structure regulated under this subchapter may promote or be detrimental to the public interest and public rights in navigable waters and to the rights of riparian owners.

AB500,15,15 (e) The methods for evaluating how an activity, deposit, or structure regulated under this subchapter may materially obstruct navigation or materially reduce the flood flow capacity of a stream.

AB500,15,17 (f) The kinds of scientific evidence that may be used to show that a farm drainage ditch was a navigable stream before ditching for purposes of s. 30.215.

AB500,15,20 (4) Any reference to this subchapter includes any rules promulgated under this subchapter, and any reference to any provision of this subchapter includes any rules promulgated under that provision.

Note: The new requirement for rules related to navigable waters, in sub. (2), above, is described in the note following s. 30.035 (4), which is created by this bill.

AB500, s. 30 Section 30. 30.05 of the statutes is renumbered 30.233 and amended to read:

AB500,16,6 30.233 Applicability of chapter to municipally-owned submerged shorelands subchapter to lake beds or stream beds under the jurisdiction of a municipality. Nothing in this chapter subchapter relative to the establishment of bulkhead or pierhead lines or the placing of structures or deposits in navigable waters or the removal of materials from the beds of navigable waters is applicable to submerged shorelands in Lake Michigan applies to any lake bed, the title to which has been granted by the state to a municipality or to any stream bed which the legislature has authorized a municipality to occupy.

Note: This statute is amended to apply to other lakes in which lake bed grants have been made and to authorization to occupy portions of a stream bed.

AB500, s. 31 Section 31. 30.056 of the statutes is renumbered 30.261 and amended to read:

AB500,16,13 30.261 Exemption from certain permit requirements Crayfish Creek. Notwithstanding ss. 30.12, 30.19, 30.195, and 30.294 30.94, the city of Oak Creek may not be required to remove any structure or concrete or other deposit that was placed in Crayfish Creek in the city of Oak Creek before June 1, 1991, and may continue to maintain the structure, concrete, or deposit without having a permit or other approval from the department.

AB500, s. 32 Section 32. 30.06 of the statutes is renumbered 30.331 and amended to read:

AB500,17,8 30.331 Waiver of certain provisions of Federal concurrent jurisdiction; waivers under this chapter subchapter. The department, by rule, may waive the applicability to specified navigable waters of the United States of all or part of those provisions of this chapter subchapter which relate to the establishment of bulkhead or pierhead lines or the placing of structures or deposits in navigable waters or the removal of materials from the beds of navigable waters. The department may promulgate such the rule only after it the department has entered into an agreement, with the appropriate federal agency wherein it is agreed, an agreement that requires that the comparable federal law will be enforced on the waters in question in lieu of the state law which that is being waived. The objective of such the agreement shall be to avoid duplication of administration with respect to navigable waters over which this state and the U.S. federal government have concurrent jurisdiction, in those situations wherein administration by a single governmental agency will tend to avoid confusion and the necessity of obtaining permits from both the state and federal governments by those who are subject to the law and at the same time will adequately protect the public interest. The agreement may contain such further provisions as are designed to achieve this objective.

AB500, s. 33 Section 33. 30.10 (title) of the statutes is renumbered 30.035 (title) and amended to read:

AB500,17,11 30.035 (title) Declarations and determinations of navigability.

AB500, s. 34 Section 34. 30.10 (1) (title) of the statutes is renumbered 30.035 (1) (title) and amended to read:

AB500,17,14 30.035 (1) (title) Lakes and streams.

AB500, s. 35 Section 35. 30.10 (1) of the statutes is renumbered 30.035 (1) (a) and amended to read:

AB500,17,20 30.035 (1) (a) All lakes wholly or partly within this state which Lakes and streams that are navigable in fact for any purpose whatsoever are declared to be navigable and public waters, and all persons have the same rights therein and thereto as they have in and to any other navigable or public waters.

AB500, s. 36 Section 36. 30.10 (2) of the statutes is repealed.

AB500, s. 37 Section 37. 30.10 (3) of the statutes is renumbered 30.035 (2) and amended to read:

AB500,18,5 30.035 (2) Enlargements or improvements in navigable waters. All enlargements in navigable waters, including inner and outer harbors, turning basins, waterways, slips, and canals created by any municipality to be used by the public for purposes of navigation, and all outer harbors connecting interior navigation with lake navigation, are declared to be navigable waters and are subject to the same control and regulation that navigable streams are subjected to as regards improvement, use and bridging.

AB500, s. 38 Section 38. 30.10 (4) (title) of the statutes is repealed.

AB500, s. 39 Section 39. 30.10 (4) (a) of the statutes is renumbered 30.213 (2) and amended to read:

AB500,18,11 30.213 (2) This section Section 30.035 does not impair the powers granted by law under s. 30.1235 sub. (1) or by other law to municipalities to construct highway bridges, arches, or culverts over streams.

AB500, s. 40 Section 40. 30.10 (4) (b) of the statutes is renumbered 30.09 and amended to read:

AB500,18,24 30.09 Boundaries of lands adjoining waters. The boundaries of lands adjoining waters and the rights of the state and of individuals with respect to all such those lands and waters shall be determined in conformity to the common law so far as applicable, but in the case of a lake or stream erroneously meandered in the original U.S. government survey, the owner of title to lands adjoining the meandered lake or stream, as shown on such the original survey, is conclusively presumed to own to the actual shorelines unless it is first established in a suit in equity, brought by the U.S. federal government for that purpose, that the government was in fact defrauded by such survey. If the proper claims of adjacent owners of riparian lots of lands between meander and actual shorelines conflict, each shall have his or her proportion of such those shorelands.

AB500, s. 41 Section 41. 30.10 (4) (c) of the statutes is repealed.

Note: The provision regarding farm drainage ditches is relocated to new s. 30.215.

AB500, s. 42 Section 42. 30.10 (4) (d) of the statutes is renumbered 30.263 (1).

AB500, s. 43 Section 43. 30.103 of the statutes is renumbered 30.325.

AB500, s. 44 Section 44. 30.105 of the statutes is repealed.

Note: This provision relates to the method for determining the footage of shoreline for certain specific purposes under ch. 30. The substance of this provision is recreated at several places in this bill where the determination of shoreline footage is part of the statutory procedure.

AB500, s. 45 Section 45. 30.11 (title) of the statutes is renumbered 30.321 (title).

AB500, s. 46 Section 46. 30.11 (1) to (4) of the statutes are renumbered 30.321 (1) to (4) and amended to read:

AB500,19,10 30.321 (1) Who Municipality may establish. Any municipality may, subject to the approval of the department, by ordinance establish or reestablish a bulkhead line and from time to time reestablish the same along any section of the shore of any navigable waters within its boundaries.

AB500,19,17 (2) Standards for establishing. Bulkhead lines shall be established A municipality shall establish a bulkhead line in the public interest and shall conform the bulkhead line as nearly as practicable to the existing shores, except that in the case of leases under sub. (5) and s. 24.39 (4) or 30.343 the municipality may allow the bulkhead lines may be approved line to be located farther from beyond the existing shoreline if they are the line is consistent with and is a part of any lease executed by the board of commissioners of public lands.

AB500,20,8 (3) How established Establishment of lines. Whenever any If a municipality proposes to establish or reestablish a bulkhead line or to reestablish an existing bulkhead line, the municipality shall indicate both the existing shore and the proposed bulkhead line upon a map and shall file with the department for its approval 6 copies of the map and 6 copies of the ordinance establishing the bulkhead line. The map shall use a scale of not less than 100 feet to an inch or any other scale required by the department. The map and a metes and bounds description of the bulkhead line shall be prepared by a land surveyor registered in this state. The department may require the installation of permanent reference markers to for the bulkhead line. Upon approval by the department, the municipality shall deliver the map, description, and ordinance to the office of the register of deeds of the county in which the bulkhead line lies, to be recorded by the. The register of deeds shall record the map, description, and ordinance.

AB500,20,11 (4) Riparian rights preserved. Establishment of a bulkhead line shall not abridge the riparian rights of riparian owners. Riparian owners may place solid structures or fill up to such the bulkhead line.

AB500, s. 47 Section 47. 30.11 (5) (title) of the statutes is repealed.

AB500, s. 48 Section 48. 30.11 (5) (a) of the statutes is renumbered 30.343 (1).

AB500, s. 49 Section 49. 30.11 (5) (b) and (c) of the statutes are renumbered 30.343 (2) and (3).

AB500, s. 50 Section 50. 30.11 (6) of the statutes is renumbered 30.321 (5).

AB500, s. 51 Section 51. 30.12 (title) of the statutes is amended to read:

AB500,20,19 30.12 (title) Structures Regulation of structures and deposits in navigable waters.

AB500, s. 52 Section 52. 30.12 (1m) of the statutes is renumbered 30.263 (2), and 30.263 (2) (intro.), as renumbered, is amended to read:

AB500,21,2 30.263 (2) Duck Creek Drainage District structures and deposits. (intro.) A structure or deposit that the drainage board for the Duck Creek Drainage District places in a drain that the board operates in the Duck Creek Drainage District is exempt from the permit requirements under this section s. 30.12 if either of the following applies:

AB500, s. 53 Section 53. 30.12 (2m) (b) of the statutes is amended to read:

AB500,21,4 30.12 (2m) (b) Environmental pollution, as defined in s. 299.01 (4).

AB500, s. 54 Section 54. 30.12 (2r) (b) 1. of the statutes is amended to read:

AB500,21,8 30.12 (2r) (b) 1. Enter and inspect the site on which the activity is located, subject to s. 30.291 30.239, if the department determines such an inspection is necessary.

AB500, s. 55 Section 55. 30.12 (3) (a) (intro.) of the statutes is amended to read:

AB500,21,11 30.12 (3) (a) (intro.) The department shall issue statewide general permits under s. 30.206 30.221 that authorize riparian owners to do all of the following:

AB500, s. 56 Section 56. 30.12 (3m) (b) of the statutes is amended to read:

AB500,21,14 30.12 (3m) (b) The notice and hearing provisions of s. 30.208 30.244 (3) to (5) shall apply to an application under par. (a).

AB500, s. 57 Section 57. 30.12 (5) of the statutes is repealed.

AB500, s. 58 Section 58. 30.121 (title) and (2) to (3w) of the statutes are renumbered 30.281 (title) and (2) to (3w).