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 (1974).
30.12 Annotation
Sub. (1) (a) does not 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 (1974).
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 [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 (1977).
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. DNR,
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
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(3g)
(3g) Exception; historical or cultural value. Subsection (3) does not apply to the repair or maintenance of a boathouse or a fixed houseboat if the boathouse or fixed houseboat has a historic or cultural value, as determined by the state historical society or a local or county historical society established under
s. 44.03.
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(3w)
(3w) Exception; commercial boathouses. Notwithstanding
subs. (2) and
(3), a person may construct, repair, or maintain a boathouse if all of the following apply:
30.121(3w)(a)
(a) The boathouse is used exclusively for commercial purposes.
30.121(3w)(b)
(b) The boathouse is located on land zoned exclusively for commercial or industrial purposes or the boathouse is located on a brownfield, as defined in
s. 560.13 (1) (a), or in a blighted area, as defined in
s. 66.1331 (3) (a).
30.121(3w)(c)
(c) The boathouse is located within a harbor that is being operated as a commercial enterprise or is located on a river that is a tributary of Lake Michigan or Lake Superior.
30.121(3w)(d)
(d) The person has been issued any applicable individual permits under this subchapter and is in compliance with any applicable general permitting requirements under this subchapter.
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 Cross-reference
Cross Reference: See also ch.
NR 325, Wis. adm. code.
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
Bridges and culverts. 30.123(2)
(2)
Permits required. Unless an individual or a general permit has been issued under this section or authorization has been granted by the legislature, no person may construct or maintain a bridge or construct, place, or maintain a culvert in, on, or over navigable waters.
30.123(5)
(5) Any person who is issued a permit under this section respecting a bridge that may be used by the public shall construct and maintain the bridge in a safe condition at all times.
30.123(6)
(6) Exemptions. Subsection (2) does not apply to any of the following:
30.123(6)(a)
(a) The construction and maintenance of highway bridges to which
s. 30.1235 applies.
30.123(6)(b)
(b) The construction and maintenance of bridges by the department of transportation in accordance with
s. 30.2022.
30.123(6)(d)
(d) The construction or placement and the maintenance of a culvert to replace a culvert that is authorized under a permit issued under
s. 30.12 or
30.123, if the construction, placement, and maintenance will comply with the same conditions of the permit.
30.123(6)(e)
(e) The construction or placement and the maintenance of a culvert to replace a culvert that has an inside diameter that does not exceed 24 inches.
30.123(6m)
(6m) Permits in lieu of exemptions. The department may decide to require that a person engaged in an activity that is exempt under
sub. (6) (d) or
(e) apply for an individual permit or seek authorization under a general permit if the department has conducted an investigation and visited the site of the activity and has determined that conditions specific to the site require restrictions on the activity in order to prevent any of the following:
30.123(6m)(a)
(a) Significant adverse impacts to the public rights and interests.
30.123(6m)(c)
(c) Material injury to the riparian rights of any riparian owner.
30.123(6r)(a)(a) A person may submit to the department a written statement requesting that the department determine whether a proposed activity is exempt under
sub. (6) (d) or
(e). The statement shall contain a description of the proposed activity and site and shall give the department consent to enter and inspect the site.
30.123(6r)(b)
(b) The department shall do all of the following within 15 days after receipt of a statement under
par. (a):
30.123(6r)(b)1.
1. Enter and inspect the site on which the activity is located, subject to
s. 30.291, if the department determines such an inspection is necessary.
30.123(6r)(b)2.
2. Make a determination as to whether the activity is exempt.
30.123(6r)(b)3.
3. Notify in writing the person submitting the statement which general or individual permit will be required for the activity, if the department determines that the activity is not exempt.
30.123(6r)(c)
(c) If the department does not take action under
par. (b), the department may not require at any time that the person proposing to engage in the activity apply for an individual permit or seek authorization under a general permit unless required to do so by a court or hearing examiner.
30.123(6r)(d)
(d) If a statement under
par. (a) is not given or if the statement does not give consent to inspect, the 15-day time limit under
par. (b) does not apply.
30.123(6s)(a)(a) The department may promulgate rules concerning the exempt activities under
sub. (6) that only do any of the following:
30.123(6s)(a)1.
1. Establish reasonable installation practices for culverts to minimize environmental impacts.
30.123(6s)(a)2.
2. Establish reasonable construction and design requirements for culverts that are consistent with the purpose of the activity.
30.123(6s)(a)3.
3. Establish reasonable limitations on the location of culverts at the site affected by the activity.
30.123(6s)(b)
(b) Notwithstanding
par. (a), the rules under
par. (a) 1. and
2. may not establish practices or requirements that prohibit the construction of culverts or that render the placement of culverts economically cost-prohibitive.
30.123(7)(a)(a) The department shall issue statewide general permits under
s. 30.206 that authorize any person to do all of the following:
30.123(7)(a)1.
1. Construct and maintain a clear-span bridge over a navigable water that provides access to a principal structure, as defined by rule by the department.
30.123(7)(a)2.
2. Construct and maintain a culvert that replaces a culvert that is not exempt under
sub. (6) (d) or
(e) and that is in a navigable water that is less than 35 feet wide.
30.123(7)(a)3.
3. Construct and maintain a bridge that is supported only by culverts in a navigable water that is less than 35 feet wide.
30.123(7)(b)
(b) The department may promulgate rules that specify bridges or culverts, in addition to those listed in
par. (a), that may be authorized by statewide general permits.
30.123(8)(a)(a) For the construction and maintenance of a bridge or culvert that is not exempt under
sub. (6) and that is not subject to a general permit under
sub. (7), a person may apply to the department for the individual permit that is required under
sub. (2) in order to construct or maintain a bridge or culvert.
30.123(8)(c)
(c) The department shall issue an individual permit pursuant to an application under
par. (a) if the department finds that the bridge or culvert will not materially obstruct navigation, will not materially reduce the effective flood flow capacity of a stream, and will not be detrimental to the public interest.
30.123 History
History: 1977 c. 190; Stats. 1977 s. 30.122;
1977 c. 272; Stats. 1977 s. 30.123;
1987 a. 374;
2003 a. 118.
30.1235
30.1235
Municipal bridge construction. Municipalities which construct or reconstruct highway bridges shall not be required to obtain permits under
s. 30.12 or
30.123 for that construction or reconstruction. All municipal highway bridges shall be constructed or reconstructed in accordance with standards developed under
s. 84.01 (23).
30.1235 History
History: 2003 a. 118 s.
58.
30.124
30.124
Waterfowl habitat management. 30.124(1)
(1) Notwithstanding
ss. 30.12,
30.20,
30.44, and
30.45, and if the department finds that the activity will not adversely affect public or private rights or interests in fish and wildlife populations, navigation, or waterway flood flow capacity and will not result in environmental pollution, as defined in
s. 299.01 (4), the department may do all of the following on public lands or waters:
30.124(1)(a)
(a) Cut aquatic plants, as defined in
s. 30.715 (1) (a), without removing them from the water, for the purpose of improving waterfowl nesting, brood, and migration habitat.
30.124(1)(b)
(b) Develop nesting islands for the purpose of increasing waterfowl production.
30.124 Cross-reference
Cross Reference: See also ch.
NR 353, Wis. adm. code.
30.1255
30.1255
Report on control of aquatic nuisance species. 30.1255(1)(1)
Definition. In this section, "aquatic nuisance species" means a nonindigenous species that threatens the diversity or abundance of native species or the ecological stability of infested waters or that threatens a commercial, agricultural, aquacultural or recreational activity dependent on infested waters.
30.1255(3)(a)(a) The department shall submit to the legislature biennial reports describing all of the following:
30.1255(3)(a)1.
1. The current and potential economic and environmental impact of aquatic nuisance species on the waters of the state.
30.1255(3)(a)2.
2. Potential strategies to control aquatic nuisance species.
