30.06
30.06
Waiver of certain provisions of this chapter. The department, by rule, may waive the applicability to specified navigable waters of the United States of all or part of those provisions of this chapter which relate to the establishment of bulkhead or pierhead lines or the placing of structures or deposits in navigable waters or the removal of materials from the beds of navigable waters. The department may promulgate such rule only after it has entered into an agreement with the appropriate federal agency wherein it is agreed that the comparable federal law will be enforced on the waters in question in lieu of the state law which is being waived. The objective of such agreement shall be to avoid duplication of administration with respect to navigable waters over which this state and the U.S. government have concurrent jurisdiction, in those situations wherein administration by a single governmental agency will tend to avoid confusion and the necessity of obtaining permits from both the state and federal governments by those who are subject to the law and at the same time will adequately protect the public interest. The agreement may contain such further provisions as are designed to achieve this objective.
30.06 History
History: 1981 c. 390 s.
252;
1985 a. 332 s.
251 (1).
30.07
30.07
Limits and conditions for permits and contracts. 30.07(1)(a)(a) Except as provided in
par. (b), every permit or contract issued under
ss. 30.01 to
30.29 for which a time limit is not provided by
s. 30.20 (2) is void unless the project is completed within 3 years after the permit or contract was issued.
30.07(1)(b)
(b) The department may specify a time limit of less than 3 years for a permit or contract issued under
ss. 30.01 to
30.29. For good cause, the department may extend the time limit for a permit or contract issued under
ss. 30.01 to
30.29 for no longer than 2 years if the grantee requests an extension prior to expiration of the initial time limit.
30.07(2)
(2) For good cause, the department may modify or rescind any permit or contract issued under
ss. 30.01 to
30.29 before its expiration.
30.07 History
History: 1987 a. 374.
30.10
30.10
Declarations of navigability. 30.10(1)
(1)
Lakes. All lakes wholly or partly within this state which are navigable in fact are declared to be navigable and public waters, and all persons have the same rights therein and thereto as they have in and to any other navigable or public waters.
30.10(2)
(2) Streams. Except as provided under
sub. (4) (c) and
(d), all streams, sloughs, bayous and marsh outlets, which are navigable in fact for any purpose whatsoever, are declared navigable to the extent that no dam, bridge or other obstruction shall be made in or over the same without the permission of the state.
30.10(3)
(3) Enlargements or improvements in navigable waters. All inner harbors, turning basins, waterways, slips and canals created by any municipality to be used by the public for purposes of navigation, and all outer harbors connecting interior navigation with lake navigation, are declared navigable waters and are subject to the same control and regulation that navigable streams are subjected to as regards improvement, use and bridging.
30.10(4)(a)(a) This section does not impair the powers granted by law under
s. 30.123 or by other law to municipalities to construct highway bridges, arches or culverts over streams.
30.10(4)(b)
(b) The boundaries of lands adjoining waters and the rights of the state and of individuals with respect to all such lands and waters shall be determined in conformity to the common law so far as applicable, but in the case of a lake or stream erroneously meandered in the original U.S. government survey, the owner of title to lands adjoining the meandered lake or stream, as shown on such original survey, is conclusively presumed to own to the actual shorelines unless it is first established in a suit in equity, brought by the U.S. government for that purpose, that the government was in fact defrauded by such survey. If the proper claims of adjacent owners of riparian lots of lands between meander and actual shorelines conflict, each shall have his or her proportion of such shorelands.
30.10(4)(c)
(c) Notwithstanding any other provision of law, farm drainage ditches are not navigable within the meaning of this section unless it is shown that the ditches were navigable streams before ditching. For purposes of this paragraph, "farm drainage ditch" means any artificial channel which drains water from lands which are used for agricultural purposes.
30.10(4)(d)
(d) A drainage district drain located in the Duck Creek Drainage District and operated by the board for that district is not navigable unless it is shown, by means of a U.S. geological survey map or other similarly reliable scientific evidence, that the drain was a navigable stream before it became a drainage district drain.
30.10 Cross-reference
Cross Reference: See also chs.
NR 305 and
320, Wis. adm. code.
30.10 Annotation
When there are 2 owners of land adjacent to a disputed parcel erroneously meandered under sub. (4), the judge is to divide the parcel proportionately on an equitable, but not necessarily equal, basis. Kind v. Vilas County,
56 Wis. 2d 269,
201 N.W.2d 881 (1972).
30.10 Annotation
The DNR properly considered the existence of beaver dams and ponds and the periods of high water caused by spring runoffs in determining the navigability of a creek. The dams and ponds were normal and natural to the stream, and the periods of high water were of a regularly recurring, annual nature. DeGayner & Co. v. DNR,
70 Wis. 2d 936,
236 N.W.2d 217 (1975).
30.10 Annotation
An owner of land on a meandered lake takes only to the actual shoreline. An owner does not have a "proper claim" to an isolated parcel separated from the remainder of the lot by the lake, making sub. (4) (b) inapplicable as parcels separated by a lake are not "adjacent." State Commissioners of Board of Public Lands v. Thiel,
82 Wis. 2d 276,
262 N.W.2d 522 (1978).
30.10 Annotation
A DNR declaration of navigability subjecting private property to sub. (1) was a taking. Zinn v. State,
112 Wis. 2d 417,
334 N.W.2d 67 (1983).
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 (1974).
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 [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)(bt)
(bt) A riparian owner is exempt from the permit requirements under
sub. (2) and this subsection for a structure that is placed on the bed of a navigable water in the Wolf River and Fox River basin area, as described in
s. 30.207 (1), and that extends beyond the ordinary high-water mark, if the following conditions apply:
30.12(3)(bt)1.
1. The structure is a vertical wall designed to prevent land from eroding into a navigable water.
30.12(3)(bt)2.
2. The structure is not a replacement for an existing structure and is placed on the bed of an artificial enlargement of a navigable water, or the structure is a replacement for an existing structure placed on the bed of a navigable water, including the bed of an artificial enlargement of a navigable water.
30.12(3)(bt)3.
3. If the structure is a replacement for an existing structure placed on the bed of a navigable water, including the bed of an artificial enlargement of a navigable water, it is placed not more than 2 feet waterward of the structure that it is replacing.
30.12(3)(bt)4.
4. The structure incorporates adequate bracing and anchors to ensure structural stability.
30.12(3)(bt)5.
5. A filter fabric lining containing a layer of gravel extends from the landward side of the structure to facilitate drainage.
30.12(3)(bt)6.
6. The base of the structure extends to a sufficient depth into the bed of the navigable water to ensure the structure's stability and to prevent the structure from failing.
30.12(3)(bt)7.
7. The structure is secured into the bank of the navigable water in a manner that prevents erosion or scouring.
30.12(3)(bt)8.
8. The riparian owner places riprap at the base of the waterward side of the structure up to the waterline or, if the structure is placed in a location where watercraft are moored, the riparian owner places riprap at the base of the waterward side of the structure up to a point that allows adequate space for the mooring of watercraft.
30.12(3)(bt)9.
9. The structure is constructed of treated wood and built so that the top of the structure meets the lower of the following:
30.12(3)(bt)9.b.
b. A point that is 4 feet above the ordinary high-water mark of the navigable water.
30.12(3)(bt)9.c.
c. The minimum height required to prevent overtopping by wave action.
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:
