31.02(3)
(3) The department or any member or any agent or employe thereof shall at all times be accorded free access to any and all parts of any dam and appurtenances constructed or maintained in navigable waters and may enter upon any property to investigate a waterway or use of water from any lake or stream.
31.02(4)
(4) The department may order and require any dam heretofore or hereafter constructed to be equipped and operated, in whole or part, as follows:
31.02(4)(a)
(a) With slides and chutes for the passage of logs and timber products.
31.02(4)(b)
(b) With a lock, boat hoist, marine railway or other device of a size and construction sufficient to accommodate navigation.
31.02(4)(c)
(c) With good and sufficient fishway or fishways, or in lieu thereof the owner may be permitted to enter into an agreement with the department to pay for or to supply to the state of Wisconsin annually such quantities of game fish for stocking purposes as may be agreed upon by the owner and the department.
31.02(4)(d)
(d) With spillways or flood gates capable of permitting the passage through or over the same of freshets and floods during all seasons of the year.
31.02(4)(e)
(e) With booms, piers or other protection works ample to safeguard flood gates from trash or other floating material.
31.02(5)
(5) The department shall give written notice to the public service commission of any hearing under this chapter involving public utilities.
31.02(6)
(6) The department shall operate, repair and maintain the dams and dykes constructed across drainage ditches and streams in drainage districts, in the interest of drainage control, water conservation, irrigation, conservation, pisciculture and to provide areas suitable for the nesting and breeding of aquatic wild bird life and the propagation of fur-bearing animals.
31.02(7)
(7) The department shall confer with the drainage commissioners in each drainage district on the formation of policies for the operation and maintenance of the dams; in districts having no commissioners, the department shall confer in like manner with the committee appointed by the county board, if any, to represent either such drainage district, or in the event that the drainage district is dissolved, to represent the interests of the county in all matters whatsoever pertaining to water conservation and control within the area which theretofore constituted such drainage district.
31.02(8)
(8) The department shall give careful consideration to the suggestions of the drainage commissioners or committee of the county board, but the final decision in all matters under consideration shall rest with the department.
31.02(9)
(9) So far as seems practicable, the department may designate or employ the drainage commissioners of any drainage district, or the committee of the county board above referred to, to operate the dams in such district or area formerly comprising a drainage district or perform services in the repair and maintenance of the dams, dykes and other works.
31.02 Annotation
See note to 70.32, citing State ex rel. Wis. Edison Corp. v. Robertson, 99 W (2d) 561, 299 NW (2d) 626 (Ct. App. 1980).
31.02 Annotation
Ordering riparian owner to excavate and maintain ditch to regulate lake level was unconstitutional taking of property. Otte v. DNR, 142 W (2d) 222, 418 NW (2d) 16 (Ct. App. 1987).
31.02 Annotation
Artificial lakes and land subdivisions. Kusler, 1971 WLR 369.
31.03
31.03
Permits for the Lower Wisconsin State Riverway. For activities in the Lower Wisconsin State Riverway, as defined in
s. 30.40 (15), no person obtaining a permit under this chapter may start or engage in the activity for which the permit was issued unless the person obtains any permit that is required for the activity under
s. 30.44 or
30.445.
31.03 History
History: 1989 a. 31,
359.
31.04
31.04
Permits for dams. Permits to construct, operate and maintain dams may be granted to persons, corporations or municipalities under this chapter.
31.045
31.045
Permits for dams that affect drained lands. 31.045(1)(1) For the construction, raising or enlarging of a dam that will affect the water level in a drainage district organized under
ch. 88, no person who obtains a permit under this chapter may construct, raise or enlarge the dam unless the person obtains the approval of the drainage board with jurisdiction of the drainage district.
31.045(2)
(2) For the construction, raising or enlarging of a dam that will affect the water level in a drain, for an individual landowner, that is constructed under an order issued under
s. 88.94, no person who obtains a permit under this chapter may construct, raise or enlarge the dam unless the person obtains the approval of the landowner.
31.045 History
History: 1993 a. 456.
31.05
31.05
Applications for permits to construct. Any person, firm, corporation or municipality desiring a permit to construct, operate and maintain a dam shall file with the department a written application therefor, setting forth:
31.05(1)
(1) The name of the navigable waters in or across which a dam is proposed to be constructed and a specific description of the site for the proposed dam.
31.05(2)
(2) The purpose or purposes for which the proposed dam is to be constructed, operated and maintained.
31.05(3)
(3) In case the application is for a permit to construct, operate and maintain a dam for a private purpose, proof satisfactory to the department that the applicant owns or has an enforceable option to purchase the described dam site and at least 65% of the land to be flowed, or the flowage rights on at least 65% of such land. This subsection shall not apply to a person who has the power of eminent domain.
31.05(4)
(4) A general description of the proposed dam, of the material to be used in the construction thereof, and a general description of all booms, piers, and other protection works to be constructed in connection therewith.
31.05(5)
(5) The approximate amount of hydraulic power that the proposed dam is capable of developing.
31.05(6)
(6) The name of the city, village or town in which the site of the proposed dam will be located and the name of the nearest existing dam above and below the site of the proposed dam.
31.05(7)
(7) A map on the scale of not less than one inch per 1,000 feet showing the lands that may be affected by the construction, operation or maintenance of the proposed dam, or by any flowage that may be caused thereby and approximately the outline of such flowage, which map shall indicate the ownership of each tract of land within the flowage.
31.05(8)
(8) Such additional information of any nature that may be required by the department.
31.05 History
History: 1975 c. 349;
1993 a. 246.
31.06(1)(1) Upon receipt of an application for a permit the department may order a hearing or it may mail a notice that it will proceed on the application without public hearing unless a request for a public hearing is filed as hereinafter provided. The notice shall be mailed to the clerk of each municipality directly affected thereby and the department may give further or other notice as it deems proper. The department shall mail a copy of the notice to the applicant who shall cause the same to be published in each county in which affected riparian lands are located as a class 1 notice, under
ch. 985. If a hearing is not requested in writing within 30 days after mailing of the notice, the department may waive the hearing.
31.06(2)(a)(a) If a hearing is ordered, the department shall, not less than 10 days before such hearing, mail written notice thereof to each person notified under
sub. (1).
31.06(2)(b)
(b) The department shall require the applicant to publish a class 1 notice under
ch. 985, of the hearing in each county in which affected riparian lands are located, and may require the applicant to mail such other notices as it deems necessary. Proof of publication and proof of mailing under this subsection and
sub. (1) shall be filed with the department.
31.06(3)
(3) At such hearing or any adjournment thereof the department shall consider the application, and shall take evidence offered by the applicant and other persons in support thereof or in opposition thereto, may require the amendment of the application, and if it appears that the construction, operation or maintenance of the proposed dam is in the public interest, considering ecological, aesthetic, economic and recreational values, the department shall so find and grant a permit to the applicant, provided the department also finds that the applicant has complied with
s. 31.14 (2) or
(3) and, where applicable, with
s. 31.05 (3), based on the department's own estimate of the area of the flowage. The enjoyment of natural scenic beauty and environmental quality are declared to be public rights to be considered along with other public rights and the economic need of electric power for the full development of agricultural and industrial activity and other useful purposes in the area to be served. In considering public rights to the recreational use and natural scenic beauty of the river, the department shall investigate the potentialities of the lake and lake shore created by the flowage and shall weigh the recreational use and scenic beauty thereof against the known recreational use and scenic beauty of the river in its natural state, and the department shall further weigh the known recreational use and scenic beauty of the particular section of river involved against the known recreational use and scenic beauty of other sections of the same river and other rivers in the area remaining in their natural state (without regard to plans of other dams subsequently filed or to be filed); if it appears that the river in its natural state offers greater recreational facilities and scenic value for a larger number of people than can by proper control of the flowage level be obtained from the use of the lake and lake shore and that the remaining sections of the river and other rivers in the area in their natural state provide an insufficient amount of recreational facilities and scenic beauty, and if it further appears that the economic need of electric power is less than the value of the recreational and scenic beauty advantages of such river in its natural state, the department shall so find and the permit be denied. If the department finds that approval of the permit will cause environmental pollution, as defined in
s. 299.01 (4), the permit shall be denied.
31.06(4)
(4) Not more than 20 days after receiving notice as provided in
sub. (1) each county clerk may and upon request of the chairperson of the county board shall give written notice as provided in
s. 59.11 (2) of a special meeting of the county board to be held at a time and place set by the county clerk, not less than 2 weeks nor more than 3 weeks after mailing of such notice, for the purpose of making findings as hereinafter provided. The county clerk shall give notice of the time, place and purpose of such special meeting to the department and to the applicant, who shall cause the same to be published in the county, as a class 2 notice, under
ch. 985, and the applicant shall cause a copy thereof to be mailed at least 7 days prior to such special meeting to every person interested in any lands that will be affected by the proposed dam and whose post-office address can by due diligence be ascertained. Proof of such publication and notice shall be filed with the county clerk. At such special meeting the county board shall hear evidence offered by the applicant and other persons and shall find and determine by a majority vote of the county board members-elect whether the lake and lake shore created by the flowage or the river in its natural state offers greater recreational facilities and scenic beauty value for the larger number of people. The county clerk shall forthwith certify such finding and determination to the department. The jurisdiction and findings of each county board shall apply to that part of the proposed dam and flowage which is within the county.
31.06(5)
(5) 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 this section.
31.07
31.07
Applications for permits to operate and maintain existing dams. Any person, firm, corporation or municipality desiring a permit to operate and maintain a dam constructed in or across navigable waters without legislative permission prior to July 10, 1915, shall file with the department a written application therefor setting forth:
31.07(1)
(1) The name of the navigable waters in or across which such dam was constructed and a specific description of the dam site.
31.07(2)
(2) The year in which the construction of the dam was completed, and a detailed description of the dam and equipment, including the maximum height or head of water that may be maintained thereby and the kind and character of material of which the dam is constructed.
31.07(3)
(3) The purpose for which the dam was theretofore operated and is operated at the time application hereunder is made, and the purpose for which it is proposed to operate and maintain the dam.
31.07(4)
(4) The approximate amount of hydraulic power developed thereby.
31.07(5)
(5) The name of the city, village or town in which the dam site is located and the name of the nearest existing dam above and below the dam site.
31.07(6)
(6) Such additional information of any nature whatsoever as may be required by the department.
31.07 History
History: 1993 a. 246.
31.08
31.08
Hearing. Upon receipt of an application under
s. 31.07 procedure shall be had substantially as required by
s. 31.06, and if the department finds that such operation and maintenance does not materially obstruct existing navigation or violate other public rights and will not endanger life, health or property, a permit is hereby granted to the applicant, provided the department also finds that the applicant has complied with
s. 31.14 (2) or
(3).
31.09
31.09
Proposals to accompany applications. Each applicant for a permit to construct, operate and maintain a dam for the purpose of developing power or for the purpose of aiding in the development of power by other dams through the creation of reservoirs or otherwise, and each applicant for a permit to construct, operate and maintain a dam for any other purpose whatsoever, which is capable of developing 50 theoretical horsepower or more available for 50% of the time throughout the year, shall file with an application for a permit, in addition to the requirements of
s. 31.05 or
s. 31.07, as the case may be, the following proposals:
31.09(1)
(1) That the department prior to the time the permit is granted shall value the dam site and all flowage rights and other property necessary for the purposes set forth in the application for the permit, whether the same or any part thereof are owned by the applicant or not.
31.09(2)
(2) That the department shall audit all outlays for property and for the construction of the dam, buildings, and other structures and works constructed, maintained, and operated and used and useful under the permit.
31.09(3)
(3) That the permit, if granted, shall be granted and accepted subject to the express condition that the state of Wisconsin, if it shall have the constitutional power, or any municipality, on not less than one year's notice, at any time after the expiration of 30 years after the permit becomes effective, may acquire all of the property of the grantee, used and useful under the permit, by paying therefor, the cost of reproduction in their then existing condition of all dams, works, buildings, or other structures or equipment, used and useful under the permit, as determined by the department, and by paying in addition thereto the value of the dam site and all flowage rights and other property as determined by the department prior to the time the permit was granted, as provided in
sub. (1), plus the amounts paid out for additional flowage rights, if any, acquired after the valuation made by the department as provided in
sub. (1); and that the applicant waives all right to any further compensation.
31.09 History
History: 1991 a. 316.
31.095
31.095
Water power permits, condition precedent. 31.095(1)(1) Except where the stream to be improved forms a boundary line between this and another state, no permit shall be granted or transferred in accordance with this chapter until the applicant has filed with both the department and the public service commission, in addition to all other things required by law to be filed, an agreement setting forth:
31.095(1)(a)
(a) That, in the event any electric energy generated under said permit shall be transmitted or conveyed beyond the confines of this state to be there sold, the applicant will furnish to any resident of this state or any corporation domiciled therein electric energy at reasonable rates to be determined by the commission, provided that the commission after public hearing shall find that public convenience and necessity require such service.
31.095(1)(b)
(b) That the rate as determined by the commission shall in no event exceed the rate charged by applicant for similar service supplied under like conditions for the energy so transmitted outside the state.
31.095(2)
(2) The commission may hold hearings, fix rates and do all things necessary and convenient to carry out the purposes of
sub. (1).
31.10
31.10
Permit not to be valued. Each and every permit is granted, and shall be conclusively deemed to be accepted, subject to the condition that no element of value whatever shall ever attach to or be allowed for such permit in and of itself in the sale or acquisition of the property used and useful under such permit or otherwise.
31.11
31.11
Certificate of terms and forfeiture of permits. The department shall issue to every grantee of a permit a certificate evidencing a grant of the permit allowed by law. Every permit, and every franchise heretofore granted by the legislature, to construct, maintain and operate a dam shall become null and void, unless the dam thereby authorized be completed within 5 years from the time when the permit or the franchise was granted; but the department, for good cause, may extend such time for a period not exceeding 2 years.
31.12
31.12
Map, profile and plans. 31.12(1)
(1) The grantee of a permit under
s. 31.06, to construct, maintain and operate a dam, before commencing any work of construction authorized by the permit, shall submit to the department a complete map and profile on the scale of not less than one inch per 1,000 feet showing the land that may be affected by the construction and maintenance of the dam, or by any flowage that may be caused thereby, and the outline of the flowage, and such other hydrographic and topographic data as the department may prescribe, and shall also file complete detailed plans and specifications for the proposed dam, including all booms, piers, or other protection works.
31.12(2)
(2) The department shall examine the map, profile, plans and specifications; shall hear the grantee thereon and may reject the same or any part thereof, if unsatisfactory or incomplete, or may suggest and require modifications thereof. If the map, profile and plans and specifications are satisfactory and complete, or, if the same shall be modified as suggested and required, the department shall so find and approve the same, and thereupon the grantee may construct the proposed dam in accordance therewith, but the department may, at any time during the construction of any dam and in the interest of the public safety, or of any public rights in navigable waters, authorize, order or require such changes in the plans and specifications and the construction of the dam as shall be necessary.
31.12(3)
(3) If the department, in the case of an application for a permit to construct a dam with a capacity of less than 250 hydraulic horsepower at ordinary stage of water, shall find that the information and data furnished in the original or amended application is sufficient, the applicant shall not be required to furnish the additional or more detailed information or data specified in
subs. (1) and
(2). The department may, however, at any time during the construction of any such dam authorize, order or require changes in the construction or the method or plan of construction thereof, as provided in
sub. (2).
31.12(4)
(4) Within 10 days after the completion of any dam the grantee shall file with the department a verified statement that the same was constructed in accordance with the plans and specifications approved by the department; or in case no plans and specifications were required to be filed, then that the dam was constructed in accordance with the description contained in the application.
31.13
31.13
Raising or enlarging existing dams. 31.13(1)
(1) If the owner of any existing dam wishes to raise or enlarge the same, the owner may apply to the department for permission so to do, but the permission granted under this section shall be in amendment of any existing franchise, license, or permit previously granted authorizing the construction or maintenance of such dam only to the extent of giving the right so to raise or enlarge such dam, and shall in no way enlarge, alter, abridge or nullify property rights, privileges or obligations as to such dam, or the maintenance or operation thereof theretofore acquired or incurred. In addition to the requirements of
s. 31.05 (1),
(6) and
(7), the owner's application shall state:
31.13(1)(a)
(a) The year in which the dam was completed.
31.13(1)(b)
(b) If constructed by legislative permission, a statement of the act of the legislature authorizing the same.
31.13(1)(c)
(c) A detailed description of the dam, including the maximum height or head of water that may be maintained thereby and the kind and character of material of which the same is constructed.
31.13(1)(d)
(d) The purpose for which such dam has been and is now used and the purpose for which it is proposed to use the same.
31.13(1)(e)
(e) The approximate amount of hydraulic power developed thereby.
31.13(1)(f)
(f) Such additional information of any nature whatsoever as the department may require.
31.13(2)
(2) Upon receipt of an application under this section procedure shall be had substantially as required by
s. 31.06; and if the department finds that the dam, raised or enlarged or rebuilt, or rebuilt, enlarged and raised in accordance with the application, will not materially obstruct existing navigation or violate other public rights, and will not endanger life, health or property, and that the applicant has complied with
s. 31.14 (2) or
(3), permission is hereby granted to raise or enlarge or rebuild, or rebuild, enlarge and raise the same in accordance with the application.
31.13 History
History: 1991 a. 316.
31.14
31.14
Proof of ability to maintain dams required. 31.14(1)
(1) It is the policy of this section to preserve public rights in navigable waters, including those created by dams, and to provide a means of maintaining dams and the developments which have been made adjacent to the flowage of such dams.
31.14(2)(a)
(a) Unless the applicant furnishes to the department proof of ability to operate and maintain the dam in good condition, either by the creation of a special assessment district under
ss. 31.38 and
66.60, or by any other means which in the department's judgment will give reasonable assurance that the dam will be maintained for a reasonable period of time not less than 10 years; or
31.14(2)(b)
(b) If a majority of the municipalities in which 51% or more of the dam or flowage is or will be located files with the department, prior to the granting of the permit, their objections to the granting of such permit in the form of resolutions duly adopted by the governing bodies of such municipalities.
31.14(3)
(3) Subsection (2) does not apply if the applicant complies with each of the following requirements:
31.14(3)(a)
(a) Furnishes proof satisfactory to the department that the applicant owns or has an enforceable option to purchase all the land which is or will be flowed by the impoundment, together with the shoreline and an immediately adjacent strip of land at least 60 feet in width, but the department may in a particular case permit a narrower strip where the 60-foot minimum is impractical and may, in furtherance of the policy stated in
sub. (1), require ownership of a wider strip.
31.14(3)(b)
(b) Files with the department a writing in such form as the department requires in which the applicant agrees that following the initial filling of the proposed pond the applicant will not convey the dam to another without first obtaining department approval. The department may require from an applicant who does not have the power of eminent domain a bond or other reasonable assurances that the applicant will adhere to such agreement.
31.14(3)(c)
(c) Furnishes proof satisfactory to the department that the applicant has dedicated or will dedicate a parcel of land for public access to the impounded waters.
31.14(4)
(4) No person may assume ownership of a dam after October 21, 1961, or the ownership of that specific piece of land on which a dam is physically located after April 27, 1982, without first complying with
sub. (2) or
(3). The transfer of the ownership of a dam or the ownership of a specific piece of land on which a dam is physically located made without complying with
sub. (2) or
(3) is void unless a permit to abandon the dam was granted under
s. 31.185 or unless the transfer occurred by operation of law. Every person who accepts ownership by operation of law is subject to this chapter.
31.14(5)
(5) For the purpose of implementing the policy stated in
sub. (1), the department may by rule require all or specified classes of persons operating a dam for profit to create a fund or reserve to be used for major repairs, reconstruction or removal of the dam when necessary. Such rules shall prescribe the manner in which such fund or reserve is to be created, maintained and expended. This subsection shall not apply to a person who has the power of eminent domain.
31.14 History
History: 1981 c. 246;
1991 a. 316.
