31.23(3)(a)(a) There shall be no forfeiture under this section in any case where a bridge is built by a private citizen across any navigable waters having a width of 35 feet or more, providing such bridge does not impair the rights of the public for purposes of navigation or fishing.
31.23(3)(b)
(b) No such bridge shall be maintained unless its construction shall first be approved by the department after public hearing and on not less than 10 days' written notice to the applicant and to the county and town clerks of the county and town wherein all or a portion of the proposed bridge is to be located.
31.23(3)(c)
(c) Each applicant who shall apply to the department for a permit to construct any such bridge shall state in the application the proposed location of the bridge, the depth of the water to be spanned, the materials to be used in the construction of the bridge, the plans of the proposed bridge, together with such other facts as the department may require.
31.23(3)(d)
(d) Every such bridge used by the public shall at all times be maintained in a safe condition by the owners of the land abutting the approaches of the bridge, and the owners shall make such repairs as are reasonably necessary therefor. The town shall not become liable for any damages resulting from the insufficiency or want of repairs of such bridge. If the department upon inspection finds that such bridge is in need of repairs, it shall notify the owners responsible for the repairs thereof, and also send a copy of such notice to the town board, to make all repairs as are reasonably necessary therefor. If such repair work as ordered by the department is not commenced within 60 days after receipt of such notice, the department may close such bridge until it is so repaired. Whenever any owner responsible for such bridge shall fail to repair or maintain the bridge in a good and safe condition, after having been notified so to do by the department for 60 days after such notification, such town board upon its own initiative may make such required repairs on such bridge, and the cost thereof shall be paid by the owners responsible therefor, and the town clerk shall enter such amount of the cost of repairs upon the next tax roll of the town.
31.23 History
History: 1991 a. 316.
31.23 Annotation
See note to 31.25, citing Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 W (2d) 838, 203 NW (2d) 369.
31.25
31.25
Nuisances, abatement. Every dam, bridge or other obstruction constructed or maintained in or over any navigable waters of this state in violation of this chapter, and every dam not furnished with a slide, chute or other equipment prescribed by the department, is hereby declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any citizen thereof.
31.25 Annotation
This section does not authorize abatement of a bridge constructed by a city in an action brought by a private individual. 31.23 only provides for a forfeiture. Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 W (2d) 838, 203 NW (2d) 369.
31.253
31.253
Dam removal; opportunity for hearing. 31.253(1)(1)
Opportunity for hearing prior to department action. Except as provided under
sub. (4), prior to seeking or causing the removal of a dam under this chapter, the department shall hold a public informational hearing on the proposed removal or publish a class 2 notice under
ch. 985 stating that it will seek or cause the removal of the dam without holding a public informational hearing unless a hearing is requested in writing within 30 days after the last publication of the notice. The department may hold further hearings or give further notice as it deems appropriate.
31.253(2)
(2) Opportunity for hearing prior to court action. Except as provided under
sub. (4), a court may not order or authorize the removal of a dam in an enforcement action under this chapter unless a public informational hearing or an opportunity for a public informational hearing was provided.
31.253(3)
(3) Public informational hearing. If the department conducts a public informational hearing under this section, the department shall explain the basis for its decision to seek or cause the removal of the dam, the procedures which will be followed and opportunities for citizen involvement in those procedures and the department shall provide an opportunity for citizens to present comments, testimony and evidence concerning the removal of the dam. Notwithstanding
s. 227.42, this hearing may not be converted or treated as a contested case.
31.253(4)(a)(a) This section does not apply if the department or a court determines that a dam constitutes an immediate and significant hazard to persons or property.
31.253 History
History: 1983 a. 507;
1985 a. 182 s.
57.
31.26
31.26
Civil liabilities. 31.26(1)(1) The owner of any dam or of any privately owned bridge across the Wisconsin River or the Black River or any of their tributaries shall be liable for all damages occasioned to property by a failure to provide such dam or bridge with slides, booms and chutes as required by
s. 31.18 (1). The person or party suffering any such damage shall have a lien upon the dam and all mills, machinery and appurtenances of such owner erected thereon, or served with water thereby, and on the lands adjoining, not exceeding 40 acres; or, as the case may be, a lien upon such bridge and its approaches.
31.26(2)
(2) The claimant of such lien shall file a notice thereof in writing in the office of the clerk of the circuit court of the county in which the dam or bridge is located within 60 days after sustaining such damages and shall commence an action to enforce the lien within 6 months after filing such notice. Such lien shall accrue upon the filing of such notice and failure to file the same or to commence such action within the times specified therefor respectively shall operate as a waiver of the lien. Judgment for the plaintiff for the recovery of damages and declaring such lien may be enforced by an execution sale of the property affected as in ordinary actions at law, and upon such sale all rights to maintain such dam or bridge shall pass to the purchaser.
31.26(3)
(3) In case of any personal injury by reason of any such neglect or failure the damages sustained thereby may be recovered and a lien and judgment enforced in like manner; and if death results an action may be maintained by the representatives of the deceased in the manner provided in other cases of death resulting from negligence or wrong.
31.26(4)
(4) No common law liability, and no statutory liability provided elsewhere in these statutes, for damage resulting from or growing out of the construction, maintenance or operation of any dam is released, superseded, or in any manner affected by the provisions of this chapter; and this chapter creates no liability on the part of the state for any such damages.
31.29
31.29
May employ hydraulic engineer and assistants. The department may employ and fix the salaries of a competent hydraulic engineer and other assistants necessary to carry out the provisions of this chapter.
31.30
31.30
Dams on Brule River. It is declared to be the policy of the state to prohibit forever the building or maintaining of any dam or dams across the Brule River or any of its tributaries in Douglas County, except that a dam with an adequate fishway may be constructed across said Brule River at each of the 3 sites hereinafter described, or at such other sites as are selected by the department in place of any or all of the sites hereinafter mentioned, the purpose of which shall be to provide a method whereby fish declared to be undesirable for said stream by the department may be eliminated or prevented from ascending the stream, and to permit said stream to be developed for trout in different stretches thereof: site No. 1 known as Clevedon site in the southeast quarter of the northwest quarter of section 10, township 49 north, range 10 west; site No. 2 known as the Old Mill site in the northwest quarter of the southeast quarter, section 11, township 47 north, range 10 west; and site No. 3, known as the Upper or Rock dam site in the northeast quarter of the southeast quarter of section 22, township 47 north, range 10 west; and all rights, privileges, and franchises granted prior to June 26, 1905, to any person or corporation to improve said Brule River or any of its tributaries in said county for any purpose whatever, are repealed and annulled. No domestic corporation organized subsequent to such date shall exercise any of the powers or privileges authorized or conferred by ss.
180.15 to
180.18, 1925 stats., in, across or along said river or any of its tributaries in Douglas County.
31.30 Cross-reference
Cross Reference: See s.
30.25 for similar prohibition of dams on the Wolf River.
31.305
31.305
Dams in the lower Wisconsin state Riverway. No dam may be constructed in the lower Wisconsin River as defined in
s. 30.40 (14).
31.305 History
History: 1989 a. 31.
31.307
31.307
Dam on Milwaukee River. 31.307(1)
(1) The department shall conduct, or shall cause to be conducted, an environmental and engineering study concerning the removal of the North Avenue dam in the city of Milwaukee from the Milwaukee River.
31.307(3)
(3) Upon completion of the study under
sub. (1), the city of Milwaukee may apply for a permit to abandon the dam under
s. 31.185 or the department may proceed under
ss. 31.187 and
31.253 to cause the removal of the dam.
31.307(4)
(4) For purposes of
s. 30.92 (4) (b) 6., moneys expended from the appropriation under
s. 20.370 (5) (cq) for the study under
sub. (1) shall be considered as amounts expended for projects considered necessary without regard to location.
31.307 History
History: 1991 a. 39;
1995 a. 27.
31.309
31.309 Portage levee system. 31.309(1)(a)(a) The department shall provide a grant in the 1995-97 fiscal biennium from the appropriation under
s. 20.370 (5) (cq) to the city of Portage for the amount necessary for the renovation and repair of the city of Portage levee in the Portage levee system. The grant under this paragraph may not exceed $800,000 in fiscal year 1995-96 and $800,000 in fiscal year 1996-97.
31.309(1)(b)
(b) When the department determines that the renovation and repair described under
par. (a) are complete, the city of Portage shall assume the maintenance of the city of Portage levee in the Portage levee system in a manner that will best protect the surrounding area from the overflow of the Wisconsin River.
31.309(2)(a)(a) The department shall maintain the Lewiston and Caledonia levees in the Portage levee system in a manner that will best protect the surrounding area from the overflow of the Wisconsin river.
31.309(2)(b)
(b) The department may expend in fiscal year 1995-96, from the appropriation under
s. 20.370 (5) (cq), up to $400,000 for a study concerning the future of strengthening and maintaining the Lewiston and Caledonia levees in the Portage levee system. The study shall include a management plan for these 2 levees.
31.309 History
History: 1995 a. 27 ss.
1698,
1699,
1702 to
1706; Stats. 1995 s. 31.309.
31.31
31.31
Dams on nonnavigable streams. Any person may erect and maintain upon that person's land, and, with the consent of the owner, upon the land of another, a water mill and a dam to raise water for working it upon and across any stream that is not navigable in fact for any purpose whatsoever upon the terms and conditions and subject to the regulations hereinafter expressed; and every municipality may exercise the same rights upon and across such streams that they may exercise upon or across streams navigable for any purpose whatsoever.
31.31 History
History: 1991 a. 316.
31.32
31.32
Dams not to injure other dams or sites. No such dam shall be erected to the injury of any mill lawfully existing, either above or below it on the same stream; nor to the injury of any mill site on the same stream on which a mill or milldam shall have been lawfully erected and used or is in the process of erection, unless the right to maintain a mill on such last-mentioned site shall have been lost or defeated by abandonment or otherwise; nor to the injury of any such mill site which has been occupied as such by the owner thereof, if such owner, within a reasonable time after commencing such occupation, completes and puts in operation a mill for the working of which the water of such stream shall be applied.
31.33
31.33
Jurisdiction of department. 31.33(1)
(1)
Dams heretofore or hereafter constructed; action for damages. All mills and milldams lawfully erected or constructed, on streams not navigable at the time, under
chapter 48, territorial laws of 1840,
chapter 62, laws of 1857, ch.
56, R.S. 1858, ch.
146, R.S. 1878, ch.
146, R.S. 1898, ch.
146, 1911 stats., ch.
146, 1913 stats., or ch.
146, 1915 stats., or any special, private or local act, or under any other act whatsoever, that are not now abandoned but are still in existence and use, and all dams heretofore or hereafter erected or constructed on streams not navigable in fact for any purpose, shall be subject to and regulated and controlled, so far as applicable, by
ss. 31.02,
31.12,
31.18,
31.19,
31.25,
31.26 and
196.665, except that those sections do not prevent the owner of any land flooded or otherwise injured by any milldam from recovering by action at law, full compensation for all damages resulting to him or her in times past and that will result to him or her in the future in consequence of that flooding and injury but no damages suffered more than 3 years before the commencement of the action shall be recovered. The amount recovered constitutes a first lien upon the milldam and upon the mill, if any, and the lien may be enforced by execution sale of the property affected. In every such action the amount paid or secured to be paid under prior laws as damages shall be considered and proper allowance made therefor. The authority granted under this subsection to bring the action does not preclude the owner from proceeding under
ch. 32. The owner may not exercise his or her option to bring the action after condemnation proceedings have been commenced against his or her property under
ch. 32.
31.33(2)
(2) License. A license is granted to each owner of any such milldam now in existence and use, and to each owner of any such milldam hereafter constructed, to maintain and use the same to operate mills or machinery, or for any other lawful private or public purpose, but subject, however, to the supervision of the department acting under
ss. 31.02,
31.12,
31.18,
31.19,
31.25,
31.26 and
196.665. The right created by the license shall follow the title to the milldam and a conveyance of the latter shall transfer the right to the grantee.
31.33(3)
(3) Interpretation. Whenever
ss. 31.02,
31.12,
31.18,
31.19,
31.25,
31.26 and
196.665 are applied to mills or milldams specified in
sub. (1) every reference in any of them to a "permit" or to a "grantee" of a permit shall be regarded as referring respectively to a license granted by this section and to the owner of such a mill or milldam.
31.33(4)
(4) Height. The height to which water may be raised by any such milldam and the length or period of time for which it may be kept up each year, may be restricted and regulated by the orders of the department.
31.33(5)
(5) Violation of orders, penalties. Every person, firm or corporation violating any of the orders respecting any such mill or milldam made by the department shall forfeit for each such violation a sum not exceeding $500 which may be recovered by civil action as provided by
ch. 778.
31.33 Annotation
See note to 30.10, citing 63 Atty. Gen. 493, concerning navigable ditches.
31.34
31.34
Flow of water regulated. Each person, firm or corporation maintaining a dam on any navigable stream shall pass at all times at least 25% of the natural low flow of water of such stream, except as otherwise provided by law. This section, however, shall not apply to a plant or dam where the water is discharged directly into a lake, mill pond, storage pond or cranberry marsh, nor shall it apply to cases where in the opinion of the department such minimum discharge is not necessary for the protection of fish life. Any person, firm or corporation violating this section shall be fined not less than $50 nor more than $1,000.
31.35
31.35
Dams in areas leased by county; restrictions; control by circuit judge; when. 31.35(1)
(1) Dams controlling the water elevations in areas covered by leases made under
s. 59.01 shall be operated in such manner as not to divert waters or withhold from any cranberry reservoir to the damage of any cranberry marsh now served or dependent upon such water supply or to any crops or works therein.
31.35(2)
(2) The circuit court for the county where the leased lands are located shall, upon petition and proof that any cranberry marsh or crops or works thereon are endangered or likely to be damaged by the operation of any dam or water control, make a summary order for the release, impounding or control of the waters affected by the dam or dams, to be and remain in force until dissolved by due notice and hearing.
31.35 History
History: 1977 c. 449.
31.36
31.36
Levee commissioners. 31.36(1)(1) The right-of-way for such levees, if any additional are found necessary, shall be furnished by the municipalities in which they are located, and no construction work shall be begun until such rights-of-way are provided.
31.36(2)
(2) Whenever levee commissioners under either general or special act are charged with the expenditure of money appropriated by the state or by any municipality for the construction, extension, improvement or repair of any levee or breakwater along the shore or bank of a river, stream or lake,
s. 31.38 shall apply for the purpose of acquisition and condemnation of lands for such purposes and such commissioners have all the powers conferred by
s. 31.38 for these purposes. Condemnations shall comply with
s. 66.60, so far as applicable. Commissioners may procure by condemnation lands for right-of-way, earth material, borrow pits, quarry, timber and brush privileges as they may, in their judgment, deem necessary for such purposes.
31.36(3)
(3) Whenever said levee commissioners are not vested with power to buy rights-of-way, earth material, borrow pits, quarry, timber and brush privileges from money appropriated by the state they may receive from any person or municipality donations of land and moneys to pay for lands and privileges condemned hereunder and for the expenses of such condemnation proceedings.
31.36 History
History: 1993 a. 490;
1995 a. 27.
31.38
31.38
Municipal authority to construct and maintain dams. 31.38(1)(1) Every municipality may, subject to this chapter, authorize the acquisition, construction, maintenance or repair of dams across any lake or stream adjoining or within the limits of such municipality, and may locate such dam within or without such limits.
31.38(2)
(2) Whenever it is deemed necessary to acquire, construct, maintain or repair any such dam, a plan therefor, with specifications and cost estimates, shall be prepared and presented to the governing body of the municipality for adoption. Cost estimates may include the estimated cost of maintenance for a period of years. When adopted by the governing body, the plan shall, where required, be submitted to the department or proper officer of the United States for approval. No work shall be done in pursuance of such plan until it has been so approved.
31.38(3)
(3) For the purpose of this section, a municipality may purchase or condemn lands within and, when necessary, without its limits in order to protect any property situated within such limits.
31.38(4)
(4) The municipality shall proceed in accordance with
s. 66.60 to make special assessments to property on account of benefits resulting to the property from the improvement mentioned in
sub. (2) or from the acquisition and maintenance of a dam. If the excess of benefits over damages accruing to property within the assessment district is not sufficient to pay the cost of the improvement, the municipality may pay the balance, either out of its general fund or out of any special fund created for that purpose. The municipality may issue its negotiable bonds, as provided in
ch. 67, to pay for such improvement. The department upon request of a municipality shall assist in engineering, surveying and determination of charges necessary in establishing special assessment districts under this section, cost of which shall be advanced by the requesting municipality and later charged against the various parcels of the special assessment district in direct proportion to the assessed benefits of each parcel in the district.
31.38(5)
(5) Whenever 2 or more municipalities propose to cooperate in acquiring, constructing, maintaining or repairing a dam, their governing bodies shall first meet and adopt a method of proceeding and a plan of apportioning to each its share of the entire cost. Such method of proceeding and plan of apportionment shall be embodied in a resolution adopted by the governing bodies of the cooperating municipalities acting jointly and later such resolution shall be adopted by each of the governing bodies acting separately.
31.38(6)
(6) Whenever a county or town acts under this section, the references in
s. 66.60 to a city or village or clerk thereof mean the county or town or clerk thereof, as the case may be.
31.385
31.385
Dam maintenance, repair, modification, abandonment and removal; aid program. 31.385(1)
(1) The department shall promulgate the rules necessary to administer a financial assistance program for municipalities and public inland lake protection and rehabilitation districts for dam maintenance, repair, modification, abandonment and removal.
31.385(2)
(2) The following standards shall apply to financial assistance under this section for dam maintenance, repair, modification, abandonment and removal:
31.385(2)(a)
(a) State financial assistance is limited to no more than 50% of the cost of a particular project involving dam maintenance, repair, modification, abandonment or removal and no more than $200,000 of state financial assistance for a particular project.
31.385(2)(b)
(b) The department shall determine which projects shall receive funding priority.
31.385(2)(c)
(c) No financial assistance may be provided under this section for the maintenance, repair, modification, abandonment or removal of a dam unless at least one of the following applies:
31.385(2)(c)1.
1. The department conducts an investigation or inspection of the dam under this chapter and the owner of the dam requests financial assistance under this section within 6 months after having received department directives, based on the department's investigation or inspection of the dam, for the repair, modification or abandonment and removal of the dam.
31.385(2)(c)2.
2. The municipality or public inland lake protection and rehabilitation district has received directives from the department or is under order by the department to maintain, repair, modify, abandon or remove a dam on August 9, 1989.
31.385(2)(e)
(e) No financial assistance may be provided under this section before January 1, 1990.
31.385(3)
(3) The department shall provide municipalities and public inland lake protection and rehabilitation districts with technical assistance in conducting dam maintenance, repair, modification, abandonment and removal. The department shall coordinate the financial assistance program under this section with other related state and federal programs.
31.39
31.39
Fees for permits, approvals and hearings. 31.39(1)(1)
Fees required. The department shall charge a permit or approval fee for carrying out its duties and responsibilities under
ss. 31.02 to
31.185 and
31.33 to
31.38. The permit or approval fee shall accompany the permit application or request for approval.
31.39(2)(a)(a) For fees charged for permits and approvals under
ss. 31.02 to
31.185 and
31.33 to
31.38, the department shall classify the types of permits and approvals based on the estimated time spent by the department in reviewing, investigating and making determinations whether to grant the permits or approvals. The department shall then set the fees as follows:
31.39(2)(a)1.
1. For a permit or approval with an estimated time of less than 3 hours, the fee shall be $30.
31.39(2)(a)2.
2. For a permit or approval with an estimated time of more than 3 hours but less than 9 hours, the fee shall be $100.
31.39(2)(a)3.
3. For a permit or approval with an estimated time of more than 9 hours, the fee shall be $300.
31.39(2)(b)
(b) For conducting a hearing on an application for which notice is provided under
s. 31.06 (1), the person requesting the hearing for the permit or approval shall pay a fee of $25.
