30.10 Annotation
The DNR has the authority, as well as the obligation, to determine whether the waters of the state are navigable in fact, and subject to regulation under ch. 30, another agency's prior ancillary finding to the contrary notwithstanding. Turkow v. DNR,
216 Wis. 2d 272,
576 N.W.2d 288 (Ct. App. 1998).
30.10 Annotation
This chapter applies to navigable ditches that were originally navigable streams. If a navigable ditch was originally nonnavigable or had no previous stream history, the DNR's jurisdiction depends upon the facts of the situation. 63 Atty. Gen. 493.
30.10 Annotation
Erroneously meandered lakeshore - the status of the law as it affects title and distribution. 61 MLR 515.
30.10 Annotation
The Muench case: A better test of navigability. Edwards, 1957 WLR 486.
30.103
30.103
Identification of ordinary high-water mark by town sanitary district. A town sanitary district may identify the ordinary high-water mark of a lake that lies wholly within unincorporated territory and wholly within the town sanitary district. The department may not identify an ordinary high-water mark of a lake that is different than the ordinary high-water mark identified by a town sanitary district under this section.
30.103 History
History: 1997 a. 237.
30.105
30.105
Determining footage of shoreline. In determining footage of shoreline for purposes of
s. 30.50 (4q),
30.77 (3) (ac),
(ae) and
(am) and
60.782 (2), towns, villages, cities, public inland lake protection and rehabilitation districts and town sanitary districts shall measure by use of a map wheel on the U.S. geological survey 7 1/2 minute series map.
30.105 History
History: 1995 a. 152 s.
9;
1995 a. 349 s.
11.
NAVIGABLE WATERS AND NAVIGATION IN GENERAL
30.11
30.11
Establishment of bulkhead lines. 30.11(1)
(1)
Who may establish. Any municipality may, subject to the approval of the department, by ordinance establish a bulkhead line and from time to time reestablish the same along any section of the shore of any navigable waters within its boundaries.
30.11(2)
(2) Standards for establishing. Bulkhead lines shall be established in the public interest and shall conform as nearly as practicable to the existing shores, except that in the case of leases under
sub. (5) and
s. 24.39 (4) bulkhead lines may be approved farther from the existing shoreline if they are consistent with and a part of any lease executed by the board of commissioners of public lands.
30.11(3)
(3) How established. Whenever any municipality proposes to establish 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 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 register of deeds.
30.11(4)
(4) Riparian rights preserved. Establishment of a bulkhead line shall not abridge the riparian rights of riparian proprietors. Riparian proprietors may place solid structures or fill up to such line.
30.11(5)
(5) Finding of public interest. 30.11(5)(a)(a) Prior to the execution of any lease by the board of commissioners of public lands concerning rights to submerged lands or rights to fill in submerged lands held in trust for the public under
s. 24.39, the department shall determine whether the proposed physical changes in the area as a result of the execution of the lease are consistent with the public interest. Thirty days before making its determination, the department shall notify, in writing, the clerk of the county and clerk of the city, village or town in which the changes are proposed and the U.S. Army Corps of Engineers of the application for the lease. In making its finding the department shall give consideration to all reports submitted to it. The department shall not approve a lease applied for under
s. 24.39 (4) (a) 2. if the department determines that the lease may threaten excessive destruction of wildlife habitat.
30.11(5)(b)
(b) When considering leases to allow certain initial improvements such as, but not restricted to, filling on submerged lands to create sites for further facilities, the department may determine whether such initial improvements are consistent with the public interest in the navigable waters involved even though the exact final use to which these improvements will be put is not known. The department, at the time it finds that a proposed lease would be consistent with the public interest in the navigable waters involved, may include in its findings such limitations upon the use of improvements as it considers necessary to confine their use to functions primarily related to water transportation or otherwise of public benefit. The board of commissioners of public lands shall include in the lease such limitations on final use as is determined by the department.
30.11(5)(c)
(c) Upon the complaint of any person to the department that current use made of rights leased under
s. 24.39 (4) is inconsistent with both its original findings and the public interest, the department shall hold a public hearing thereon after the publication of a class 2 notice, under
ch. 985. If the department finds that the present use conforms neither to its original finding nor to the present public interest, it shall submit its findings to the governor. The governor may cause the attorney general or the district attorney of the proper county to bring action in the name of the state in a court of competent jurisdiction to declare the lease terminated and to institute appropriate action for removal of structures or cessation of practices in violation of such lease.
30.11(6)
(6) Shoreline not invalidated. A shoreline lawfully established before January 1, 1960, is a lawfully established bulkhead line.
30.11 History
History: 1987 a. 374;
1991 a. 32.
30.11 Annotation
A bulkhead line is not merely the natural shoreline, but one legislatively established by a municipality. It may differ from the existing shoreline and is also distinguishable from the low- and high-water marks previously judicially defined. State v. McFarren,
62 Wis. 2d 492,
215 N.W.2d 459.
30.11 Annotation
The private right to fill lakebeds granted under this section does not preempt the zoning power of a county over shorelands under s. 59.971, 1991 stats., [now 59.692]. State v. Land Concepts, Ltd.
177 Wis. 2d 24,
501 N.W.2d 817 (Ct. App. 1993).
30.11 Annotation
When a bulkhead line has been established, a riparian owner must nonetheless obtain a permit or contract pursuant to s.30.20 prior to removing material from the bed of a navigable water landward of the bulkhead line, but within the original ordinary high water mark. 63 Atty. Gen. 445.
30.11 Annotation
A bulkhead line is not legally established until the filing requirements of sub. (3) are met. A bulkhead line established by a town on lands subsequently annexed to a municipality that has not established such line, remains in effect. 64 Atty. Gen. 112.
30.12
30.12
Structures and deposits in navigable waters prohibited; exceptions; penalty. 30.12(1)
(1)
General prohibition. Except as provided under
subs. (4) and
(4m), unless a permit has been granted by the department pursuant to statute or the legislature has otherwise authorized structures or deposits in navigable waters, it is unlawful:
30.12(1)(a)
(a) To deposit any material or to place any structure upon the bed of any navigable water where no bulkhead line has been established; or
30.12(1)(b)
(b) To deposit any material or to place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.
30.12(2)
(2) Permits to place structures or deposits in navigable waters; generally. The department, upon application and after proceeding in accordance with
s. 30.02 (3) and
(4), may grant to any riparian owner a permit to build or maintain for the owner's use a structure otherwise prohibited under
sub. (1), if the structure does not materially obstruct navigation or reduce the effective flood flow capacity of a stream and is not detrimental to the public interest. The procedures in this subsection do not apply to permits issued under
sub. (3).
30.12(3)
(3) Permits to place certain structures or deposits in navigable waters. 30.12(3)(a)(a) The department, upon application, may grant to a riparian owner a permit to:
30.12(3)(a)1.
1. Place a layer of sand or similar material on the bed of a lake adjacent to the owner's property for the purpose of improving recreational use.
30.12(3)(a)2.
2. Place a fish crib, spawning reef, wing deflector or similar device on the bed of navigable waters for the purpose of improving fish habitat.
30.12(3)(a)2m.
2m. Place a bird nesting platform, a wood duck house or similar structure on the bed of a navigable water for the purpose of improving wildlife habitat.
30.12(3)(a)3.
3. Place riprap or similar material on the bed and bank of navigable waters adjacent to an owner's property for the purpose of protecting the bank and adjacent land from erosion.
30.12(3)(a)4.
4. Place crushed rock or gravel, reinforced concrete planks, adequately secured treated timbers, cast in place concrete or similar material on the bed of a navigable stream for the purpose of developing a ford if an equal amount of material is removed from the stream bed.
30.12(3)(a)5.
5. Place crushed rock or gravel, reinforced concrete planks, cast in place concrete or similar material on the bed of navigable waters adjacent to the owner's property for the purpose of building a boat landing.
30.12(3)(a)6.
6. Place a permanent boat shelter adjacent to the owner's property for the purpose of storing or protecting watercraft and associated materials, except that no permit may be granted for a permanent boat shelter which is constructed after May 3, 1988, if the property on which the permanent boat shelter is to be located also contains a boathouse within 75 feet of the ordinary high-water mark of if there is a boathouse over navigable waters adjacent to the owner's property.
30.12(3)(a)7.
7. Place an intake structure and pipe on the bed of a navigable water for the purpose of constructing a dry fire hydrant to supply water for fire protection.
30.12(3)(a)8.
8. Drive a piling into the bed of a navigable water adjacent to the owner's property for the purpose of deflecting ice, protecting an existing or proposed structure, or providing a pivot point for turning watercraft.
30.12(3)(b)
(b) A person who seeks to place structures or deposits under
par. (a) shall apply to the department for a permit. The department may disapprove the application if it finds that the proposed structure or deposit will materially impair navigation or be detrimental to the public interest. The department shall issue the permit or notify the applicant in writing of the disposition of the application.
30.12(3)(bn)
(bn) A riparian owner is exempt from the permit requirements under
sub. (2) and this subsection for a structure specified under
par. (a) 2m. if the riparian owner places the structure in conformance with the standards established under
par. (d) and if the riparian owner notifies the department in writing of the location of the structure at least 10 working days before it is placed.
30.12(3)(c)
(c) The department may promulgate rules deemed necessary to carry out the purposes of
par. (a) 6., including rules to establish minimum standards to govern the architectural features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The rules may not govern the aesthetic features or color of boat shelters. The standards shall be designed to assure the structural soundness and durability of a boat shelter. A municipality may enact ordinances not inconsistent with this section or with rules promulgated under this section regulating the architectural features of boat shelters.
30.12(3)(d)
(d) For purposes of
par. (bn), the department shall promulgate rules to establish standards governing the placement of structures specified in
par. (a) 2m.
30.12(4)
(4) Department of transportation activities; exemption; interdepartmental coordination of environmental protection measures. 30.12(4)(a)(a) Activities affecting waters of the state as defined in
s. 281.01 (18) that are carried out under the direction and supervision of the department of transportation in connection with highway, bridge or other transportation project design, location, construction, reconstruction, maintenance and repair are not subject to the prohibitions or permit or approval requirements specified under this section or
s. 29.601,
30.11,
30.123,
30.19,
30.195,
30.20,
59.692,
61.351,
62.231 or
87.30 or
chs. 281 to
285 or
289 to
299, except
s. 281.48. However, at the earliest practical time prior to the commencement of these activities, the department of transportation shall notify the department of the location, nature and extent of the proposed work that may affect the waters of the state.
30.12(4)(b)
(b) The exemption under
par. (a) does not apply unless the activity is accomplished in accordance with interdepartmental liaison procedures established by the department and the department of transportation for the purpose of minimizing the adverse environmental impact, if any, of the activity.
30.12(4)(c)
(c) If the department determines that there is reasonable cause to believe that an activity being carried out under this subsection is not in compliance with the environmental protection requirements developed through interdepartmental liaison procedures, it shall notify the department of transportation. If the secretary and the secretary of transportation are unable to agree upon the methods or time schedules to be used to correct the alleged noncompliance, the secretary, notwithstanding the exemption provided in this subsection, may proceed with enforcement actions as the secretary deems appropriate.
30.12(4)(d)
(d) The department of transportation and the department shall exchange information and cooperate in the planning and carrying out of such activities in order to alleviate, to the extent practical under the circumstances, any potential detrimental encroachment on the waters of the state.
30.12(4)(e)
(e) Except as may be required otherwise under
s. 1.11, no public notice or hearing is required in connection with any interdepartmental consultation and cooperation under this subsection.
30.12(4)(f)
(f) This subsection does not apply to activities in the Lower Wisconsin State Riverway, as defined in
s. 30.40 (15).
30.12(4m)
(4m) Duck Creek Drainage District structures and deposits. Subsection (1) does not apply to 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 if either of the following applies:
30.12(4m)(a)
(a) The department of agriculture, trade and consumer protection, after consulting with the department of natural resources, specifically approves the structure or deposit.
30.12(4m)(b)
(b) The structure or deposit is required, under rules promulgated by the department of agriculture, trade and consumer protection, in order to conform the drain to specifications approved by the department of agriculture, trade and consumer protection after consulting with the department of natural resources.
30.12(5)
(5) Penalty. Any person violating this section or any term or condition of a permit issued pursuant thereto shall be fined not more than $1,000 or imprisoned not more than 6 months or both.
30.12 Annotation
In a state proceeding to enforce a DNR order requiring an owner of land abutting a navigable lake to remove a quantity of fill, the burden of proof is on the state to establish the nonexistence of a bulkhead line. State v. McFarren,
62 Wis. 2d 492,
215 N.W.2d 459.
30.12 Annotation
Sub. (1) (a) was not intended to apply to conduct that only indirectly and unintentionally results in deposits on lake beds. State v. Deetz,
66 Wis. 2d 1,
224 N.W.2d 407.
30.12 Annotation
When a DNR decision prohibited a structure under this section and the riparian owner did not seek review under s. 227.20, 1983 stats., [now 227.57], the trial court had no jurisdiction to hear an action by the owner seeking a declaration that the structure was a "pier" permitted under s. 30.13. Kosmatka v. DNR,
77 Wis. 2d 558,
253 N.W.2d 887.
30.12 Annotation
"Navigable waters" under this section are waters that are navigable in fact. A ski jump was a "structure" under this section. The public trust doctrine is discussed. State v. Bleck,
114 Wis. 2d 454,
338 N.W.2d 492 (1983).
30.12 Annotation
Section 66.24 (5) (c) does not exempt sewerage districts from the requirements of s. 30.12. Cassidy v. Dept. of Natural Resources,
132 Wis. 2d 153,
390 N.W.2d 81 (Ct. App. 1986).
30.12 Annotation
An area need not be navigable to be a lakebed. The ordinary high water mark is determinative. State v. Trudeau,
139 Wis. 2d 91,
408 N.W.2d 337 (1987).
30.12 Annotation
The holder of an easement does not qualify as a riparian owner. De Nava v. DNR,
140 Wis. 2d 213,
409 N.W.2d 151 (Ct. App. 1987).
30.12 Annotation
In considering whether a proposed structure is detrimental to the public interest, the DNR is authorized to weigh relevant policy factors including the preservation of the natural beauty of the state's waters, the public's fullest use of the waters and the convenience of riparian owners. Sterlingworth Condominium Association v. DNR,
205 Wis. 2d 710,
556 N.W.2d 702 (Ct. App. 1996).
30.12 Annotation
The DNR may include consideration of local zoning ordinances in establishing the public interests at stake under sub. (2). Sea View Estates Beach Club, Inc. v. DNR,
223 Wis. 2d 138,
558 N.W.2d 667 (Ct. App. 1998).
30.12 Annotation
Review of local ordinances may be made in making a determination under sub. (2), but is not required. Issuance of a permit conditioned on compliance with a local ordinance was reasonable. Borsellino v. DNR, 2000 WI App 27,
232 Wis. 2d 430,
606 N.W.2d 255.
30.12 Annotation
Although in granting pier permits under s. 30.12 the DNR acts in furtherance of the public trust, a cause of action cannot be based only on a general allegation of a violation of the public trust doctrine. Borsellino v. DNR, 2000 WI App 27,
232 Wis. 2d 430,
606 N.W.2d 255.
30.121
30.121
Regulation of boathouses and houseboats. 30.121(2)(2)
Prohibitions. After December 16, 1979 no boathouse or fixed houseboat may be constructed or placed beyond the ordinary high-water mark of any navigable waterway.
30.121(3)
(3) Maintenance. The riparian owner of any boathouse or fixed houseboat extending beyond the ordinary high-water mark of any navigable waterway may repair and maintain the boathouse or fixed houseboat if the cost of the repair or maintenance does not exceed 50% of the equalized assessed value of the boathouse or fixed houseboat. If the boathouse or fixed houseboat is not subject to assessment, the owner may make repairs if the cost of the repair or maintenance does not exceed 50% of the current fair market value of the boathouse or fixed houseboat.
30.121(3m)
(3m) Exception; certain single-story boathouses. Notwithstanding
subs. (2) and
(3), a person may construct, repair or maintain a single-story boathouse over an authorized waterway enlargement if:
30.121(3m)(a)
(a) The boathouse does not extend beyond the ordinary high-water mark as it existed prior to the creation of the enlargement;
30.121(3m)(b)
(b) The boathouse covers the entire enlargement; and
30.121(3m)(c)
(c) Living quarters or plumbing fixtures are not constructed in the boathouse.
30.121(3r)
(3r) Exception; damages after January 1, 1984. Subsections (2) and
(3) do not apply to the repair or reconstruction of a damaged boathouse if the boathouse was damaged by violent wind, vandalism or fire and if the damage occurs after January 1, 1984.
30.121(4)
(4) Major repair, abandoned structures and obstructions to navigation. The owner of a boathouse or a fixed houseboat which extends beyond the ordinary high-water mark of any navigable waterway and which is in a major state of disrepair or is a material obstruction to navigation may be ordered by the department to remove the structure from the waterway. The department shall follow the procedures set forth in
s. 30.03 (4) (a) for ordering removal of a structure. If such a structure is abandoned and the department, after due diligence, cannot locate the owner, the department shall utilize the procedures set forth in
s. 31.187 (1) for removing the abandoned structure.
30.121(5)
(5) Applicability. Boathouses or fixed houseboats owned by the state or by local units of government shall comply with this section. This section does not apply to any structure listed on the national register of historic places in Wisconsin or the state register of historic places.
30.121(6)
(6) Rules. The department may promulgate rules deemed necessary to carry out the purposes of this section. The rules may not govern the aesthetic features or color of boathouses.
30.121(7)
(7) Penalties. Any person who constructs, owns or maintains a boathouse or fixed houseboat in violation of this section or in violation of any order issued under this section shall forfeit not less than $10 nor more than $50 for each offense. Each day a structure exists in violation of this section constitutes a separate offense.
30.121 Annotation
A boathouse on a, navigable, artificially created waterway maintained over private property with waters from a natural waterway is subject to regulation. Klingeisen v. DNR,
163 Wis. 2d 921,
472 N.W.2d 603 (Ct. App. 1991).
30.121 Annotation
An administrative rule permitting repairs not authorized by this section was invalid. Oneida County v. Converse,
180 Wis. 2d 120,
508 N.W.2d 416 (1993).
30.121 Annotation
The legislation creating sub. (3r) was not an unconstitutional private bill. Sub. (3r) preempts contrary local zoning ordinances. Pace v. Oneida County,
212 Wis. 2d 448,
569 N.W.2d 311 (Ct. App. 1997).
30.122
30.122
Unauthorized structures. All permanent alterations, deposits or structures affecting navigable waters, other than boathouses, which were constructed before December 9, 1977 and which did not require a permit at the time of construction, shall be presumed in conformity with the law, unless a written complaint is filed within 180 days of December 9, 1977. Upon the filing of a complaint, the department shall proceed with an action to enforce the applicable statutes.
30.122 History
History: 1977 c. 189.
30.123
30.123
Bridge construction and maintenance; permit. 30.123(1)(1) Municipalities which construct or reconstruct highway bridges shall not be required to obtain permits under this section or
s. 30.10 or
30.12 for such construction or reconstruction. All municipal highway bridges shall be constructed or reconstructed in accordance with standards developed under
s. 84.01 (23).
30.123(2)
(2) Except as provided in
sub. (1) and
s. 30.12 (4), no person may construct or maintain a bridge in, on or over navigable waters unless a permit has been issued by the department under this section. The application for a permit shall contain the applicant's name and address, the proposed location of the bridge, a cross section and plan view of the navigable waters and adjacent uplands, a description of materials to be used in construction of the bridge, plans for the proposed bridge, evidence of permission to construct the bridge from the riparian owners and any other information required by the department.
