30.126 Cross-reference
Cross Reference: See also ch.
NR 324, Wis. adm. code.
30.13
30.13
Regulation of wharves, piers and swimming rafts; establishment of pierhead lines. 30.13(1)
(1)
Construction allowed without permit under certain circumstances. A riparian proprietor may construct a wharf or pier in a navigable waterway extending beyond the ordinary high-water mark or an established bulkhead line in aid of navigation without obtaining a permit under
s. 30.12 if all of the following conditions are met:
30.13(1)(a)
(a) The wharf or pier does not interfere with public rights in navigable waters.
30.13(1)(b)
(b) The wharf or pier does not interfere with rights of other riparian proprietors.
30.13(1)(c)
(c) The wharf or pier does not extend beyond any pierhead line which is established under
sub. (3).
30.13(1)(d)
(d) The wharf or pier does not violate any ordinances enacted under
sub. (2).
30.13(1)(e)
(e) The wharf or pier is constructed to allow the free movement of water underneath and in a manner which will not cause the formation of land upon the bed of the waterway.
30.13(1m)
(1m) Swimming rafts allowed without permit under certain circumstances. A riparian owner may place a swimming raft in a navigable waterway for swimming and diving purposes without obtaining a permit under
s. 30.12 if all of the following conditions are met:
30.13(1m)(a)
(a) The swimming raft does not interfere with public rights in navigable waters.
30.13(1m)(b)
(b) The swimming raft does not interfere with rights of other riparian owners.
30.13(1m)(c)
(c) The swimming raft is placed within 200 feet of shore.
30.13(2)
(2) Wharves, piers and swimming rafts regulated. A municipality may enact ordinances not inconsistent with this section regulating the construction and location of wharves, piers and swimming rafts located within or attached to land within that municipality.
30.13(3)
(3) Establishment of pierhead lines. 30.13(3)(a)(a) Any municipality authorized by
s. 30.11 to establish a bulkhead line may also establish a pierhead line in the same manner as it is authorized to establish a bulkhead line, except that a metes and bounds legal description is not required nor is the map required to be prepared by a registered land surveyor and except that if the municipality has created a board of harbor commissioners the municipality must obtain the approval of the board concerning the establishment of the pierhead line in addition to obtaining the approval of the department.
30.13(3)(b)
(b) Any pierhead line established by a municipality shall be established in the interest of the preservation and protection of its harbor or of public rights in navigable waters.
30.13(4)(a)(a)
Interferes with public rights. A wharf or pier which interferes with public rights in navigable waters constitutes an unlawful obstruction of navigable waters unless the wharf or pier is authorized under a permit issued under
s. 30.12 or unless other authorization for the wharf or pier is expressly provided.
30.13(4)(b)
(b)
Interferes with riparian rights. A wharf or pier which interferes with rights of other riparian owners constitutes an unlawful obstruction of navigable waters unless the wharf or pier is authorized under a permit issued under
s. 30.12 or unless other authorization for the wharf or pier is expressly provided.
30.13(4)(c)
(c)
Extends beyond pierhead line; exception. A wharf or pier which extends into navigable waters beyond any pierhead line established under
sub. (3) constitutes an unlawful obstruction of navigable waters unless a valid permit, license or authorization for the wharf or pier is granted or unless it is a permissible preexisting wharf or pier. A wharf or pier is a permissible preexisting wharf or pier if it existed prior to the establishment of the pierhead line, if it is not extended or expanded after that date and if the ownership of the land to which it is attached did not change after that date except that a wharf or pier continues its status as a permissible preexisting wharf or pier for one year after the date the change of ownership is recorded. The seasonal removal of a wharf or pier does not affect its status as a permissible preexisting wharf or pier if it is reestablished in substantially the same form. Status as a permissible preexisting wharf or pier does not imply that authorization for the wharf or pier is provided for the purposes of
par. (a) or
(b). The owner of a wharf or pier may submit evidence to the municipality that it is a permissible preexisting wharf or pier at any time after the municipality establishes the pierhead line.
30.13(4)(d)
(d)
Violates regulations. A wharf or pier which violates the regulations contained in
sub. (2) or in any ordinance enacted under
sub. (2) constitutes an unlawful obstruction of navigable waters.
30.13(5m)
(5m) Removal of wharves and piers in navigable waters. 30.13(5m)(a)1.1. The governing body of a city, village or town or a designated officer may order the owner of a wharf or pier which constitutes an unlawful obstruction of navigable waters under
sub. (4) to remove that portion of the wharf or pier which constitutes an unlawful obstruction.
30.13(5m)(a)2.
2. The governing body of a city, village or town or a designated officer may order the owner of a wharf or pier in navigable waters which in its judgment is so old, dilapidated or in need of repair that it is dangerous, unsafe or unfit for use to repair or remove the wharf or pier. If the governing body of a city, village or town or a designated officer determines that the cost of repair is likely to exceed 50% of the equalized assessed value of the wharf or pier or, if the wharf or pier is not subject to assessment, if the cost of repair is likely to exceed 50% of the current fair market value, then repair is presumed unreasonable and the wharf or pier is presumed to be a public nuisance.
30.13(5m)(a)3.
3. An order under this paragraph shall be served upon the owner or person responsible in the manner provided for the service of a summons in circuit court. If the owner or person responsible cannot be found, the order may be served by posting it on the wharf or pier and by publishing it as a class 3 notice under
ch. 985. The order shall specify the action to be taken and the time within which it shall be complied with. At least 50 days must be allowed for compliance.
30.13(5m)(b)1.1. If the owner or person responsible fails to comply with an order issued under
par. (a), the governing body of a city, village or town or a designated officer may cause the wharf or pier to be removed through any available public agency or by a contract or arrangement by a private person. The cost of the removal may be charged against the real estate on which or adjacent to which the wharf or pier is located, constitutes a lien against that real estate and may be assessed and collected as a special tax. The governing body of the city, village or town or the designated officer may sell any salvage or valuable material resulting from the removal at the highest price obtainable. The governing body of the city, village or town or the designated officer shall remit the net proceeds of any sale, after deducting the expense of the removal, to the circuit court for use of the person entitled to the proceeds subject to the order of the court. The governing body of the city, village or town or the designated officer shall submit a report on any sale to the circuit court which shall include items of expense and the amount deducted. If there are no net proceeds, the report shall state that fact.
30.13(5m)(b)2.
2. If the owner or person responsible fails to comply with an order issued under
par. (a), the governing body of a city, village or town or a designated officer may commence an action in circuit court for a court order requiring the person to comply with the order issued under
par. (a). The court shall give the hearing on this action precedence over other matters on the court's calendar and may assess costs.
30.13(5m)(c)
(c) A person affected by an order issued under
par. (a) may apply to circuit court within 30 days after service of the order for a restraining order prohibiting the governing body of the city, village or town or the designated officer from removing the wharf or pier. The court shall conduct a hearing on the action within 20 days after application. The court shall give this hearing precedence over other matters on the court's calendar. The court shall determine whether the order issued under
par. (a) is reasonable. If the court finds that the order issued under
par. (a) is unreasonable, it shall issue a restraining order or modify it as the circumstances require and the governing body of the city, village or town or the designated officer may not issue another order under
par. (a) with respect to the wharf or pier unless its condition is substantially changed. The court may assess costs. The remedy provided under this paragraph is exclusive and no person affected by an order issued under
par. (a) may recover damages for the removal of a wharf or pier under this section.
30.13(6)
(6) Dock line not invalidated. A dock line lawfully established before January 1, 1960, is a lawfully established pierhead line.
30.13 Cross-reference
Cross Reference: See also ch.
NR 326, Wis. adm. code.
30.13 Annotation
When a DNR decision prohibited a structure under s. 30.13 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).
30.13 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),
95-3526.
30.13 Annotation
The permitting criteria under DNR rules are supplemental to the criteria under sub. (1). To escape the requirement of obtaining a permit, the requirements of both the statute and rules must be met. Sea View Estates Beach Club, Inc. v. DNR,
223 Wis. 2d 138,
588 N.W.2d 667 (Ct. App. 1998),
97-3418.
30.131
30.131
Wharves and piers placed and maintained by persons other than riparian owners. 30.131(1)
(1) Notwithstanding
s. 30.133, a wharf or pier of the type which does not require a permit under
ss. 30.12 (1) and
30.13 that abuts riparian land and that is placed in a navigable water by a person other than the owner of the riparian land may not be considered to be an unlawful structure on the grounds that it is not placed and maintained by the owner if all of the following requirements are met:
30.131(1)(a)
(a) The owner of the riparian land or the owner's predecessor in interest entered into a written easement that was recorded before December 31, 1986, and that authorizes access to the shore to a person who is not an owner of the riparian land.
30.131(1)(b)
(b) The person to whom the easement was granted or that person's successor in interest is the person who places and maintains the wharf or pier.
30.131(1)(c)
(c) The placement and maintenance of the wharf or pier is not prohibited by and is not inconsistent with the terms of the written easement.
30.131(1)(d)
(d) The wharf or pier has been placed seasonally in the same location at least once every 4 years since the written easement described in
par. (a) was recorded.
30.131(1)(e)
(e) The wharf or pier is substantially the same size and configuration as it was on April 28, 1990, or during its last placement before April 28, 1990, whichever is later.
30.131(1)(f)
(f) The placement of the wharf or pier complies with the provisions of this chapter, with any rules promulgated under this chapter and with any applicable municipal regulations or ordinances.
30.131(2)
(2) Notwithstanding
s. 30.133, an easement under
sub. (1) may be conveyed if it is conveyed at the same time, and to the same person, that the land to which the easement is appurtenant is conveyed.
30.131 History
History: 1989 a. 217;
1993 a. 167.
30.131 Annotation
This section does not grant rights to a nonriparian owner vis a vis a riparian owner. The statute speaks only to the lawfulness of a pier maintained under a nonriparian access easement. The terms and purpose of the easement may include the right to use and maintain the pier. Wendt v. Blazek, 2001 WI App 91,
242 Wis. 2d 722,
626 N.W.2d 78,
00-2448.
30.131 Annotation
Riparian rights are qualified by reasonable use and are subordinate to public rights. The common law requires reasonable use by riparian owners to be determined by the extent and capacity of the lake, the uses to which it has been put, and the rights that other riparian owners on the same lake also have. The inquiry is highly fact-specific, and determinations are made on a case-by-case basis. Hilton v. Department of Natural Resources, 2006 WI 84, ___ Wis. 2d ___, ___ N.W.2d ___,
03-3353.
30.131 Annotation
Historical use, however it is determined, is one of the factors that an administrative law judge may weigh in balancing the private rights and public interests at stake in riparian rights/public trust doctrine cases. The cases do not establish any set definition of historical use or any hard and fast methodology for determining it. That historic use must be based on something like passage of an ordinance or DNR contact is not required by public policy considerations. An ALJ may review local ordinances in making a permit determination but is not required to do so. Hilton v. Department of Natural Resources, 2006 WI 84, ___ Wis. 2d ___, ___ N.W.2d ___,
03-3353.
30.133
30.133
Prohibition against conveyance of riparian rights. 30.133(1)(1) Beginning on April 9, 1994, no owner of riparian land that abuts a navigable water may convey, by easement or by a similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water. This right to cross the land may not include the right to place any structure or material in the navigable water.
30.133(2)
(2) This section does not apply to riparian land located within the boundary of any hydroelectric project licensed or exempted by the federal government, if the conveyance is authorized under any license, rule or order issued by the federal agency having jurisdiction over the project.
30.133 History
History: 1993 a. 167.
30.133 Annotation
Small lock boxes were not "intended for any type of independent use" within the meaning of a condominium "unit" under s. 703.02 (15) and were not valid condominium units. Without a valid condominium unit, the transfer of riparian rights purportedly attached to the condominium lock boxes was in violation of this section. ABKA Limited Partnership v. DNR, 2002 WI 106,
255 Wis. 2d 486,
648 N.W.2d 854,
99-2306.
30.134
30.134
Use of exposed shore areas along streams. 30.134(1)(a)
(a) "Artificial ditch" means a ditch, channel, canal or other stream of water that has no prior history as a stream.
30.134(1)(b)
(b) "Exposed shore area" means the area of the bed of a navigable body of water that is between the ordinary high-water mark and the water's edge.
30.134(1)(d)
(d) "Riparian" means the owner, lessee or occupant of land that abuts a navigable body of water.
30.134(2)
(2) Authorization. Members of the public may use any exposed shore area of a stream without the permission of the riparian only if it is necessary to exit the body of water to bypass an obstruction.
30.134(3)
(3) Restrictions; members of public. 30.134(3)(a)(a) In using an exposed shore area of a stream, as authorized under
sub. (2), a member of the public may not enter the exposed shore area except from the water, from a point of public access on the stream, or with the permission of the riparian.
30.134(3)(c)
(c) Use of an exposed shore area of a stream by members of the public does not grant an easement or other right to the exposed shore area that is greater than the right granted to the public under this section.
30.134(4)
(4) Restrictions; riparians; others. 30.134(4)(a)(a) No riparian may prohibit a member of the public from using, as authorized under this section, an exposed shore area of a stream.
30.134(4)(b)
(b) No riparian may charge a fee for the use, as authorized under this section, of an exposed shore area of a stream.
30.134(4)(c)
(c) No person may obstruct a highway with the intention to impede or prohibit access by the public to an exposed shore area of a stream.
30.134(5)
(5) Exceptions. The right granted to the public under this section to use an exposed shore area of a stream does not apply to any of the following:
30.134(5)(a)
(a) An exposed shore area of an impoundment on a stream.
30.134(5)(c)
(c) Any location on a stream where there is no surface water flowing in the stream.
30.134 History
History: 1999 a. 9;
2001 a. 16.
30.135
30.135
Regulation of water ski platforms and jumps. 30.135(1)(1) A riparian owner placing a water ski platform or water ski jump in a navigable waterway is exempt from the permit requirements under this chapter if all of the following requirements are met:
30.135(1)(a)
(a) The platform or jump does not interfere with public rights in navigable waters.
30.135(1)(b)
(b) The platform or jump does not interfere with rights of other riparian owners.
30.135(1)(c)
(c) The platform or jump is located at a site that ensures adequate water depth and clearance for safe water skiing.
30.135(2)
(2) If the department determines that any of the requirements under
sub. (1) are not met, the riparian owner shall submit an application for an individual permit to the department. The notice and hearing provisions under
s. 30.208 (3) to
(5) apply to the application.
30.135 History
History: 1997 a. 27;
2003 a. 118.
30.14
30.14
Reports of and hearings on violations. 30.14(1)(1)
Municipalities to report violations. The governing body of each municipality shall promptly report to the department every violation of
s. 30.12 or
30.13 which occurs or which it has reason to believe is likely to occur within the municipal boundaries.
30.14(2)
(2) Hearings by department. Upon complaint by any person to the department that any wharf, pier or other structure exists in navigable water in violation of
s. 30.12 or
30.13 or
30.207 or that any wharf, pier or other structure proposed to be built in navigable water will violate
s. 30.12 or
30.13 or
30.207, the department shall investigate and may hold a hearing to determine whether the wharf, pier, or other structure is or would be in violation of those sections. If no hearing is held, the complainant shall be informed of the results of the investigation.
30.14 History
History: 1987 a. 374;
1997 a. 174.
30.15
30.15
Penalty for unlawful obstruction of navigable waters. 30.15(1)(1)
Obstructions penalized. Any person who does any of the following shall forfeit not less than $10 nor more than $500 for each offense:
30.15(1)(a)
(a) Unlawfully obstructs any navigable waters and thereby impairs the free navigation thereof.
30.15(1)(b)
(b) Unlawfully places in navigable waters or in any tributary thereof any substance that may float into and obstruct any such waters or impede their free navigation.
