30.18(2)(a)1.
1. The diversion is for the purpose of maintaining or restoring the normal level of a navigable lake or the normal flow of a navigable stream, regardless of whether the navigable lake or navigable stream is located within the watershed of the stream from which the water is diverted.
30.18(2)(a)2.
2. The diversion is for the purpose of agriculture or irrigation.
30.18(2)(b)
(b)
Streams or lakes. No person, except a person required to obtain an approval under
s. 281.41, may divert water from any lake or stream in this state without a permit under this section if the diversion will result in a water loss averaging 2,000,000 gallons per day in any 30-day period above the person's authorized base level of water loss.
30.18(3)(a)1.1. Except as provided in
par. (b), an applicant for a permit required under
sub. (2) (a) shall file the application with the department setting forth the name and post-office address of the applicant, the name of the stream from which the water will be diverted, the point in the stream from which it is proposed to divert the water, the name of the lake or stream or the location and riparian status of the land to which the water is to be diverted, the location and description of the canal, tunnel or pipes and other works through which the water is to be diverted, the amount of water to be diverted, the periods of time when it is proposed to divert such water, the time required for the completion of the canal and other structures necessary for the completed project and, if required by the department, 4 copies of plans showing cross sections and profiles for any canal, tunnel, pipes or other diversion works and any dam and control works at the point of diversion and at the point of discharge.
30.18(3)(a)2.
2. For a diversion under
sub. (2) (a) 1., a map or maps shall accompany the application with a scale of not less than one inch per 2,000 feet, showing the land topography and the probable course of the proposed diversion canal and other works, and the ownership of all lands upon which will be located the canal, tunnel, pipes and all other works for the completed project.
30.18(3)(a)3.
3. For a diversion under
sub. (2) (a) 2., the application shall include written statements of consent to the diversion from all riparian owners who are making beneficial use of the water proposed to be diverted.
30.18(3)(a)4.
4. The department may require such additional information as may be pertinent.
30.18(3)(b)
(b)
Application; streams or lakes. An application for a permit required under
sub. (2) (b) shall be submitted in the form required under
s. 281.35 (5) (a). If the diversion also meets either condition specified under
sub. (2) (a), the application shall also comply with
par. (a).
30.18(4)
(4) Notice of hearing on application. 30.18(4)(a)(a) Upon receipt of a complete application, the department shall follow the notice and hearing procedures under
s. 30.02 (3) and
(4). In addition to the notice requirements under
s. 30.02 (3) and
(4), the department shall mail a copy of the notice to every person upon whose land any part of the canal or any other structure will be located, to the clerk of the next town downstream, to the clerk of any village or city in which the lake or stream is located and which is adjacent to any municipality in which the diversion will take place and to each person specified in
s. 281.35 (5) (b) or
(6) (f), if applicable.
30.18(4)(b)
(b) If a hearing on the application for a permit is conducted as a part of a hearing under
s. 293.43, the notice and hearing provisions in that section supersede the notice and hearing provisions of
par. (a).
30.18(5)(a)(a)
Streams. The department shall approve an application for a permit required under
sub. (2) (a) if the department determines both of the following:
30.18(5)(a)1.
1. That the proposed diversion will not injure any public rights in navigable waters.
30.18(5)(a)2.
2. That the water to be diverted is surplus water, or if it is not surplus water, that all riparians who may be adversely affected by the diversion have consented to the proposed diversion.
30.18(5)(b)
(b)
Streams or lakes. The department shall approve an application for a permit required under
sub. (2) (b) if the grounds for approval specified under
s. 281.35 (5) (d) are met and, if the permit is also required under
sub. (2) (a), if the department makes the determinations specified under
par. (a).
30.18(6)
(6) Permits; use of water; reporting; review. 30.18(6)(a)(a)
Contents of permit. The department shall specify on each permit issued under this section the quantity of water that may be diverted and the times during which water may be diverted. In addition, if the permit is one which is required under
sub. (2) (b), the permit shall comply with
s. 281.35 (6).
30.18(6)(b)
(b)
Use of water. A person issued a permit for the purpose of irrigation or agriculture may use the water on any land contiguous to the permittee's riparian land, but may not withdraw more water than it did before August 1, 1957, without applying to the department for a modification of the permit.
30.18(6)(c)
(c)
Reporting required. The department shall require each permittee under this section to report its volume and rate of withdrawal and its volume and rate of water loss, if any, in the form and at the times specified by the department.
30.18(6)(d)
(d)
Review of permits. If the permit is one that is required under
sub. (2) (a), but not under
sub. (2) (b), and the permit was issued on or after August 1, 1957, the department shall review the permit at least once every 5 years. If the permit is one that is required under
sub. (2) (b), the department shall review the permit as required under
s. 281.35 (6) (b).
30.18(6m)(a)(a) The department shall revoke a permit issued under
sub. (5) (a), which is not subject to
sub. (2) (b), if it finds any of the following:
30.18(6m)(a)1.
1. That the water being diverted is no longer surplus water, except that the department may allow the diversion to continue if all riparians adversely affected by the diversion continue to consent to it.
30.18(6m)(a)2.
2. If the diversion is from a stream designated by the department as a trout stream, that the revocation is desirable for conservation purposes.
30.18(6m)(b)
(b) The department may revoke any permit issued under
sub. (5) (a), which is not subject to
sub. (2) (b), if it finds that the diversion is detrimental to the stream from which the water is diverted.
30.18(7)
(7) Prerequisites to project construction. After an application under this section has been filed with the department, the applicant may enter any land through which it is proposed to divert the water for the purposes of making any surveys required for drafting the plans for the project, but no work shall be commenced on the canal, headworks or other structures necessary for the project until the plans for the same have been approved by the department. Any person having received a permit required under
sub. (2) (a) may construct upon the land of another the canal and other works authorized by the permit after the damage which will be sustained by the owner or owners of such land has been satisfied, or has been determined as provided for in
ch. 32, and after the final sum so determined and all costs have been paid to the persons entitled thereto or to the clerk of the circuit court on their account.
30.18(8)
(8) Department may raise water elevations. If after examination and investigation the department determines that it is necessary to raise water elevations in any navigable stream or lake for conservation purposes, the department may, if funds are available from any source other than license fees, determine and establish the elevations to which the water may be raised or maintained, but the water elevation may not be established below the normal elevation. If any lands are damaged by raising the water levels above normal and the department cannot acquire the right to flow the lands by agreement with the owner, the department may acquire the lands or the right to flow the lands by condemnation under
ch. 32.
30.18(9)
(9) Judicial review. Any order or determination made by the department is subject to judicial review as prescribed in
ch. 227.
30.18 Annotation
This section is to be strictly construed and any diversion of water lawful at common law is permitted without a permit unless it is for irrigation, agriculture or to maintain normal water levels. State ex rel. Chain O'Lakes P. Asso. v. Moses, 53 W (2d) 579, 193 NW (2d) 708.
30.18 Annotation
The statute applies to diversions from nonnavigable as well as from navigable streams. Omernik v. State, 64 W (2d) 6, 218 NW (2d) 734.
30.18 Annotation
Legislature abrogated common law riparian right of irrigation and substituted permit procedure under (3). Omernick v. DNR, 71 W (2d) 370, 238 NW (2d) 114.
30.18 Annotation
Section 94.26 exempts cranberry growers from permit requirements of 30.18. State v. Zawistowski, 95 W (2d) 250, 290 NW (2d) 303 (1980).
30.19
30.19
Enlargement and protection of waterways. 30.19(1)(1)
Permits required. Unless a permit has been granted by the department or authorization has been granted by the legislature, it is unlawful:
30.19(1)(a)
(a) To construct, dredge or enlarge any artificial waterway, canal, channel, ditch, lagoon, pond, lake or similar waterway where the purpose is ultimate connection with an existing navigable stream, lake or other navigable waters, or where any part of the artificial waterway is located within 500 feet of the ordinary high-water mark of an existing navigable stream, lake or other navigable waters.
30.19(1)(b)
(b) To connect any natural or artificially constructed waterway, canal, channel, ditch, lagoon, pond, lake or similar waterway with an existing body of navigable water, for navigation or any other purpose.
30.19(1)(c)
(c) To grade or otherwise remove top soil from the bank of any navigable stream, lake or other body of navigable water where the area exposed by such grading or removal will exceed 10,000 square feet.
30.19(1m)
(1m) Exception. Subsection (1) does not apply to any of the following:
30.19(1m)(a)
(a) The construction and repair of public highways.
30.19(1m)(c)
(c) Any navigable inland lake located wholly or partly in any county having a population of 750,000 or more.
30.19(1m)(d)
(d) Those portions of navigable streams, Lake Michigan or Lake Superior within any county having a population of 750,000 or more.
30.19(1m)(e)
(e) Any work required to maintain the original dimensions of an enlargement of a waterway authorized under
sub. (1) (a) or
(b).
30.19(2)
(2) Permits for work or to enlarge waterways. Before any work or connection specified in
sub. (1) is undertaken the applicant shall file an application with the department setting forth the following:
30.19(2)(b)
(b) The legal description of the lands included in the project.
30.19(2)(c)
(c) A summary statement of the purpose of the project.
30.19(2)(d)
(d) A map or diagram showing the proposal on an adequate scale with contours and cross-section profiles of the waterways to be constructed or grading to be undertaken.
30.19(2)(e)
(e) The name and address of the secretary of any property owners' association pertaining to the bodies of water affected by the project or if there is no such association, the names and addresses of at least 5 persons who own real property located adjacent to the bodies of water. If fewer than 5 persons own real property located adjacent to the bodies of water, the names and addresses of such persons that own real estate so located shall be given.
30.19(2)(f)
(f) Such other information that may be required by the department.
30.19(3)(a)(a) Section 30.02 (3) and
(4) applies to permit applications under
sub. (1) (b) and
(c). Notice shall be provided to the clerks of the county and municipality in which the project or affected body of water is located and to the persons under
sub. (2) (e). For any permit application which affects the Milwaukee River, the Menomonee River, the Kinnickinnic River, the Root River or any tributary of those rivers, special notice shall be given to the Milwaukee metropolitan sewerage district. The metropolitan sewerage district shall have 30 days to respond to the special notice.
30.19(3)(b)
(b) If a hearing on the application for a permit is conducted as a part of a hearing under
s. 293.43, the notice, comment and hearing provisions in that section supersede the notice, comment and hearing provisions of
par. (a).
30.19(4)
(4) Issuance of permit. If the department finds that the project will not injure public rights or interest, including fish and game habitat, that the project will not cause environmental pollution as defined in
s. 299.01 (4), that any enlargement connected to navigable waterways conforms to the requirement of laws for the platting of land and for sanitation and that no material injury to the rights of any riparian owners on any body of water affected will result, the department shall issue a permit authorizing the enlargement of the affected waterways.
30.19(5)
(5) Conditions of permit. The permit shall provide that all artificial waterways constructed under this section which are connected to navigable waterways shall be public waterways. The department may impose such further conditions in the permit as it finds reasonably necessary to protect public health, safety, welfare, rights and interest and to protect private rights and property.
30.19 Annotation
See note to 88.21, citing 63 Atty. Gen. 355.
30.19 Annotation
See note to 30.11, citing 63 Atty. Gen. 445.
30.195
30.195
Changing of stream courses. 30.195(1)
(1)
Permit required. No person may change the course of or straighten a navigable stream without a permit issued under this section or without otherwise being expressly authorized by statute to do so.
30.195(2)
(2) Applications. Applications for permits required by this section shall be made to the department of natural resources upon forms prescribed by it. Applications shall contain such information as the department reasonably requires to enable it to act on the application.
30.195(3)
(3) Granting of permit. Upon application therefor, the department shall grant a permit to the owner of any land to change the course of or straighten a navigable stream on such land, if such change or straightening will improve the economic or aesthetic value of the owner's land and will not adversely affect the flood flow capacity of the stream or otherwise be detrimental to public rights or to the rights of other riparians located on the stream. If the department finds that the rights of such riparians will be adversely affected, it may grant the permit only with their consent. Such permit may be granted on the department's own motion after its own investigation or after public hearing and after giving prior notice of such investigation or hearing.
30.195(4)
(4) Liability for negligence. No common law liability, and no statutory liability which may be provided elsewhere in these statutes, for damages resulting from the changing of the course of or from the straightening of a stream is in any manner affected by this section, nor does this section create any liability on the part of the state for any such damages, but a person who changes the course of a stream or straightens a stream in accordance with a permit granted pursuant to this section is presumed to have exercised due care in such changing or straightening.
30.195(7)
(7) Application of section. This section does not apply to municipal or county-owned lands in counties having a population of 750,000 or more.
30.195 History
History: 1987 a. 374.
30.195 Annotation
Elements of proof required for conviction under (1) discussed. 67 Atty. Gen. 265.
30.196
30.196
Enclosure of navigable waters; issuance of permits to municipalities. A municipality may enclose navigable waters by directing, placing or restricting navigable waters into an enclosed drain, conduit, storm sewer or similar structure if the department grants the municipality a permit. The department may grant this permit to a municipality after following the notice and hearing requirements under
s. 30.02 (3) and
(4) if it finds that granting the permit:
30.196(2)
(2) Will not violate public rights; and
30.196(3)
(3) Will not endanger life, health or property.
30.196 History
History: 1981 c. 19;
1987 a. 374.
30.20
30.20
Removal of material from beds of navigable waters. 30.20(1)(a)(a) No person may remove any material from the bed of any navigable lake or from the bed of any outlying waters of this state without first obtaining a contract as provided in
sub. (2).
30.20(1)(b)
(b) Except as provided under
par. (c), no person may remove any material from the bed of any lake or stream not mentioned under
par. (a) without first obtaining a permit from the department under
sub. (2) (c).
30.20(1)(c)1.1. Except as provided under
subd. 2., a person may remove material from the bed of a farm drainage ditch which was not a navigable stream before ditching.
30.20(1)(c)2.
2. The department may require a permit under
sub. (2) (c) for a removal under
subd. 1. only if it finds the proposed removal may have a long-term adverse effect on cold-water fishery resources or may destroy fish spawning beds or nursery areas.
30.20(1)(c)3.
3. A person who proposes a removal under
subd. 1. which may have an effect on cold-water fishery resources or may affect fish spawning beds or nursery areas shall notify the department at least 10 days prior to the removal.
30.20(2)(a)(a) The department, whenever consistent with public rights, may enter into contracts on behalf of the state for the removal of any material from the bed of any navigable lake or any of the outlying waters, and for the lease or sale of the material. Every contract shall contain such conditions as may be necessary for the protection of the public interest and the interests of the state and shall fix the compensation to be paid to the state for material so removed, except that no compensation may be paid for the material if the contract is with a municipality as defined in
s. 281.01 (6) and the material is to be used for a municipal purpose and not for resale. No contract entered into under this paragraph may run for a longer period than 5 years.
30.20(2)(b)
(b) The department, whenever consistent with public rights, may enter into contracts on behalf of the state for the removal of any mineral, ore and material from beneath the bed of navigable lakes and waters, where the waters would not be disturbed in the removal operation and for the lease and sale of such mineral, material and ore and provide the necessary regulations for all acts incident thereto. Every such contract shall contain such conditions as may be necessary for the protection of the public interest and the interests of the state, and shall fix the compensation to be paid to the state for the material, mineral and ore so removed. No contract entered into, pursuant to this paragraph, shall run for a longer period than 75 years. Should any doubt exist as to whether the state, in fact, owns such lake bed or stream bed such contract or lease shall be for such interests, if any, as the state may own. Title to the royalties to be paid when mining operations are begun shall be determined at such future time as royalties for ores so sold are paid or are due and payable.
30.20(2)(c)
(c) A permit to remove material from the bed of any lake or stream not included in
sub. (1) (a) may be issued by the department if it finds that the issuance of such a permit will be consistent with the public interest in the water involved. A permit or contract issued under this paragraph may be issued for up to 10 years if the applicant notifies the department at least 30 days before removing any material.
