Chapter 30

30.15 History History: 1987 a. 374.

30.15 Annotation Municipalities have the power to construct bridges but are not authorized to construct or maintain bridges that constitute an unnecessary obstruction or hazard to the free use of navigable waters. The bridge undoubtedly is an obstruction. The question becomes, is the obstruction unnecessary or unreasonable under the circumstances. When a bridge was necessary, reasonable, and existing before the plaintiff moved into the area, the defendant city was not required to abate the obstruction. Capt. Soma Boat Line v. Wisconsin Dells, 79 Wis. 2d 10, 255 N.W.2d 441 (1977).

30.15 Annotation If an unattended and anchored boat is left on navigable water for an unreasonable length of time, it constitutes a violation. 63 Atty. Gen. 601.

30.16 30.16 Removal of obstructions to navigation.

30.16(1) (1) Watercraft and floats.

30.16(1)(a) (a) Removal. The governing body of any municipality in this state may cause to be removed to a convenient and safe place any watercraft or float obstructing or interfering with the free navigation of any river, canal, water channel or slip within its harbor after having given reasonable notice to the master or owner or the agent of the master or owner, if known and a resident of this state, or to the person in charge thereof, to so remove such watercraft or float. The governing body of the municipality by ordinance or resolution may authorize any harbor master or other public officer over whom it has jurisdiction to remove the obstruction, and may prescribe the officer’s duties with respect thereto and the mode of carrying them into effect and may prescribe penalties for violation of such ordinance or resolution.

30.16(1)(b) (b) Costs of removal. All costs, charges and expenses of such removal are a first lien on such watercraft or float, which lien may be enforced in the manner provided by law. The owner of any such watercraft or float is also personally liable for such costs, charges and expenses, to be recovered by the municipality by a personal action.

30.16(2) (2) Removal of obstructions to navigation; wharves and piers; alternative. As an alternative to the procedure specified under sub. (1), the governing body of a city, village or town may remove that portion of a wharf or pier which constitutes an unlawful obstruction to navigation as provided under s. 30.13 (5m).

30.16 History History: 1981 c. 252; 1991 a. 316; 1993 a. 246; 1997 a. 35; 1999 a. 150 ss. 4, 672; 2001 a. 30 s. 96.

30.18 30.18 Withdrawal of water from lakes and streams.

30.18(2) (2) Permit required.

30.18(2)(a) (a) Streams. No person may withdraw water from a stream in this state without an individual permit under this section if the withdrawal meets either of the following conditions:

30.18(2)(a)1. 1. The withdrawal is for the purpose of maintaining or restoring the normal level of a navigable lake or the normal flow of a navigable stream, regardless of whether the navigable lake or navigable stream is located within the watershed of the stream from which the water is withdrawn.

30.18(2)(a)2. 2. The withdrawal is for the purpose of agriculture or irrigation.

30.18(2)(b) (b) Streams or lakes. No person, except a person required to obtain an approval under s. 281.41, may withdraw water from any lake or stream in this state without an individual permit under this section if the withdrawal will result in a water loss averaging 2,000,000 gallons per day in any 30-day period above the person’s authorized base level of water loss.

30.18(3) (3) Application for permit.

30.18(3)(a) (a) Application; streams.

30.18(3)(a)1. 1. Except as provided in par. (b), an applicant for a permit required under sub. (2) (a) shall file the application with the department setting forth the name and post-office address of the applicant, the name of the stream from which the water will be withdrawn, the point in the stream from which it is proposed to withdraw the water, the name of the lake or stream or the location and riparian status of the land to which the water is to be transferred, the location and description of the canal, tunnel or pipes and other works through which the water is to be withdrawn and transferred, the amount of water to be withdrawn, the periods of time when it is proposed to withdraw such water, the time required for the completion of the canal and other structures necessary for the completed project and, if required by the department, 4 copies of plans showing cross sections and profiles for any canal, tunnel, pipes or other works for withdrawing and transferring the water and any dam and control works at the point of withdrawal and at the point of discharge.

30.18(3)(a)2. 2. For a withdrawal under sub. (2) (a) 1., a map or maps shall accompany the application with a scale of not less than one inch per 2,000 feet, showing the land topography and the probable course of the proposed canal and other works, and the ownership of all lands upon which will be located the canal, tunnel, pipes and all other works for the completed project.

30.18(3)(a)3. 3. For a withdrawal under sub. (2) (a) 2., the application shall include written statements of consent to the withdrawal from all riparian owners who are making beneficial use of the water proposed to be withdrawn.

30.18(3)(a)4. 4. The department may require such additional information as may be pertinent.

30.18(3)(b) (b) Application; streams or lakes. An application for a permit required under sub. (2) (b) shall be submitted in the form required under s. 281.35 (5) (a). If the withdrawal also meets either condition specified under sub. (2) (a), the application shall also comply with par. (a).

30.18(4) (4) Notice of hearing on application.

30.18(4)(a) (a) The notice and hearing provisions of s. 30.208 (3) to (5) shall apply to an application under sub. (3). In addition to providing notice as required under s. 30.208 (3) to (5), the department shall mail a copy of the notice to every person upon whose land any part of the canal or any other structure will be located, to the clerk of the next town downstream, to the clerk of any village or city in which the lake or stream is located and which is adjacent to any municipality in which the withdrawal will take place and to each person specified in s. 281.35 (5) (b) or (6) (f), if applicable.

30.18(4)(b) (b) If a hearing on the application for a permit is conducted as a part of a hearing under s. 293.43, the notice and hearing provisions in that section supersede the notice and hearing provisions of par. (a).

30.18(5) (5) Approval of application.

30.18(5)(a) (a) Streams. The department shall approve an application for a permit required under sub. (2) (a) if the department determines both of the following:

30.18(5)(a)1. 1. That the proposed withdrawal will not injure any public rights in navigable waters.

30.18(5)(a)2. 2. That the water to be withdrawn is surplus water, or if it is not surplus water, that all riparians who may be adversely affected by the withdrawal have consented to the proposed withdrawal.

30.18(5)(b) (b) Streams or lakes. The department shall approve an application for a permit required under sub. (2) (b) if the grounds for approval specified under s. 281.35 (5) (d) are met and, if the permit is also required under sub. (2) (a), if the department makes the determinations specified under par. (a).

30.18(6) (6) Permits; use of water; reporting; review.

30.18(6)(a) (a) Contents of permit. The department shall specify on each permit issued under this section the quantity of water that may be withdrawn and the times during which water may be withdrawn. In addition, if the permit is one which is required under sub. (2) (b), the permit shall comply with s. 281.35 (6).

30.18(6)(b) (b) Use of water. A person issued a permit under this section for the purpose of irrigation or agriculture may use the water on any land contiguous to the permittee’s riparian land, but may not withdraw more water than it did before August 1, 1957, without applying to the department for a modification of the permit.

30.18(6)(c) (c) Reporting required. The department shall require each permittee under this section to report its volume and rate of withdrawal and its volume and rate of water loss, if any, in the form and at the times specified by the department.

30.18(6)(d) (d) Review of permits. If the permit is one that is required under sub. (2) (a), but not under sub. (2) (b), and the permit was issued on or after August 1, 1957, the department shall review the permit at least once every 5 years. If the permit is one that is required under sub. (2) (b), the department shall review the permit as required under s. 281.35 (6) (b).

30.18(6m) (6m) Revocation.

30.18(6m)(a) (a) The department shall revoke a permit issued under sub. (5) (a), which is not subject to sub. (2) (b), if it finds any of the following:

30.18(6m)(a)1. 1. That the water being withdrawn is no longer surplus water, except that the department may allow the withdrawal to continue if all riparians adversely affected by the withdrawal continue to consent to it.

30.18(6m)(a)2. 2. If the withdrawal is from a stream designated by the department as a trout stream, that the revocation is desirable for conservation purposes.

30.18(6m)(b) (b) The department may revoke any permit issued under sub. (5) (a), which is not subject to sub. (2) (b), if it finds that the withdrawal is detrimental to the stream from which the water is withdrawn.

30.18(6m)(c) (c) The department may revoke a permit issued under sub. (5) (b) only as provided under s. 281.35 (6).

30.18(7) (7) Prerequisites to project construction. After an application under this section has been filed with the department, the applicant may enter any land through which it is proposed to withdraw or transfer the water for the purposes of making any surveys required for drafting the plans for the project, but no work shall be commenced on the canal, headworks or other structures necessary for the project until the plans for the same have been approved by the department. Any person having received a permit required under sub. (2) (a) may construct upon the land of another the canal and other works authorized by the permit after the damage which will be sustained by the owner or owners of such land has been satisfied, or has been determined as provided for in ch. 32, and after the final sum so determined and all costs have been paid to the persons entitled thereto or to the clerk of the circuit court on their account.

30.18(8) (8) Department may raise water elevations. If after examination and investigation the department determines that it is necessary to raise water elevations in any navigable stream or lake for conservation purposes, the department may, if funds are available from any source other than license fees, determine and establish the elevations to which the water may be raised or maintained, but the water elevation may not be established below the normal elevation. If any lands are damaged by raising the water levels above normal and the department cannot acquire the right to flow the lands by agreement with the owner, the department may acquire the lands or the right to flow the lands by condemnation under ch. 32.

30.18(9) (9) Judicial review. Any order or determination made by the department is subject to judicial review as prescribed in ch. 227.

30.18 History History: 1979 c. 221; 1985 a. 60; 1987 a. 374; 1995 a. 227; 2003 a. 118; 2007 a. 227; 2011 a. 167.

30.18 Cross-reference Cross-reference: See also chs. NR 142 and 300, Wis. adm. code.

30.18 Annotation This section is to be strictly construed. Any diversion of water lawful at common law is permitted without a permit unless it is for irrigation, agriculture, or to maintain normal water levels. State ex rel. Chain O’Lakes Protective Association v. Moses, 53 Wis. 2d 579, 193 N.W.2d 708.

30.18 Annotation This section applies to diversions from nonnavigable, as well as from navigable, streams. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734 (1974).

30.18 Annotation The legislature abrogated the common law riparian right of irrigation and substituted the permit procedure under sub. (3). Omernick v. Department of Natural Resources, 71 Wis. 2d 370, 238 N.W.2d 114 (1974).

30.18 Annotation Section 94.26 exempts cranberry growers from permit requirements of this section. State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980).

30.19 30.19 Enlargement and protection of waterways.

30.19(1b) (1b) Definition. In this section:

30.19(1b)(a) (a) “Artificial water body” means a body of water that does not have a history of being a lake or stream or of being part of a lake or stream.

30.19(1b)(b) (b) “Bank” means either of the following:

30.19(1b)(b)1. 1. Land area that is, in size, the greater of the following:

30.19(1b)(b)1.a. a. The portion of land surface that extends 75 feet landward from the ordinary high-water mark of any navigable waterway.

30.19(1b)(b)1.b. b. The portion of land surface extending landward from the ordinary high-water mark of any navigable waterway to the point where the slope is less than 12 percent.

30.19(1b)(b)2. 2. A bank as determined by the department by rule under sub. (1d).

30.19(1b)(c) (c) “Priority navigable waterway” means any of the following:

30.19(1b)(c)1. 1. A navigable waterway, or a portion of a navigable waterway, that is identified as an outstanding or exceptional resource water under s. 281.15.

30.19(1b)(c)2. 2. A navigable waterway, or a portion of a navigable waterway, identified as a trout stream.

30.19(1b)(c)3. 3. A lake that is less than 50 acres in size.

30.19(1b)(c)4. 4. Any other navigable waterway, or portion of a navigable waterway, that the department has determined, by rule, contains sensitive fish and aquatic habitat and that the department has specifically identified by rule.

30.19(1c) (1c) Definition; applicability. The definition of “bank” under sub. (1b) does not apply after the 90th day after the day the rule under sub. (1d) is submitted to legislative council staff under s. 227.15 (1) or the day that the rule promulgated under sub. (1d) goes into effect, whichever is earlier.

30.19(1d) (1d) Rules; banks of navigable waterways.

30.19(1d)(a) (a) The department shall promulgate a rule to determine what constitutes a bank for purposes of this section in accordance with all of the following:

30.19(1d)(a)1. 1. For priority navigable waterways, the department shall promulgate a rule stating that a bank is, in size, the greater of the following:

30.19(1d)(a)1.a. a. The portion of land surface that extends a certain distance landward from the ordinary high-water mark of the navigable waterway, but the distance under the rule may not exceed 300 feet.

30.19(1d)(a)1.b. b. The portion of land surface that extends landward from the ordinary high-water mark of the navigable waterway to the point where the slope is measured to be a certain percentage, but the percentage under the rule may not be less than 10 percent.

30.19(1d)(a)1m. 1m. The rule promulgated under subd. 1. may apply to specific priority navigable waterways or to classes of priority navigable waterways.

30.19(1d)(a)2. 2. For navigable waterways that are not priority navigable waterways, the department shall promulgate a rule stating that a bank is, in size, the greater of the following:

30.19(1d)(a)2.a. a. The portion of the land surface that extends a certain distance landward from the ordinary high-water mark of the navigable waterway, but the distance under the rule may not exceed 75 feet.

30.19(1d)(a)2.b. b. The portion of land surface that extends landward from the ordinary high-water mark of the navigable waterway to the point where the slope is measured to be a certain percentage, but the percentage under the rule may not be less than 12 percent.

30.19(1d)(a)2m. 2m. The rule promulgated under subd. 2. may apply to specific navigable waterways or to classes of navigable waterways.

30.19(1d)(am) (am) The rule under this subsection may not require or allow the department to deviate from, or create an exemption from, the requirements of the rules promulgated under this section in determining what constitutes a bank at an individual, specific site.

30.19(1d)(b) (b) In promulgating the rule under this subsection, the determination under this subsection of what constitutes a bank may not include any land where the slope or drainage of the land into the navigable waterway is completely interrupted.

30.19(1d)(c) (c) To the extent practicable, the rule under this subsection shall be consistent with rules promulgated by the department that relate to shorelands, as defined in s. 59.692 (1) (b), and floodplains, and rules promulgated under s. 281.16 (2) that relate to protective areas for wetlands and waterways.

30.19(1d)(d) (d) In promulgating the rule under this subsection, the department shall consider public rights and interests for the purpose of furthering the public trust in navigable waters.

30.19(1g) (1g) 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 do any of the following:

30.19(1g)(a) (a) Construct, dredge, or enlarge any artificial water body that connects with an existing navigable waterway.

30.19(1g)(am) (am) Construct or enlarge any part of an artificial water body that is or will be located within 500 feet of the ordinary high-water mark of, but that does not or will not connect with, an existing navigable waterway. An artificial water body that meets the requirements of this paragraph includes a stormwater management pond that does not discharge into a navigable waterway except as a result of storm events.

30.19(1g)(c) (c) Grade or remove topsoil from the bank of any navigable waterway where the area exposed by the grading or removal will exceed 10,000 square feet.

30.19(1m) (1m) Exemptions. A person is exempt from the permit requirements under this section for any of the following:

30.19(1m)(a) (a) The construction or repair of any public highway.

30.19(1m)(b) (b) Any agricultural use of land.

30.19(1m)(bm) (bm) The maintenance or repair of an artificial water body or fish farm that is registered with the department of agriculture, trade and consumer protection, except that this exemption does not apply to the requirement under sub. (1g) (c).

30.19(1m)(c) (c) An activity that affects a navigable inland lake that is located wholly or partly in any county having a population of 750,000 or more.

30.19(1m)(cm) (cm) Any activity that affects a portion of Lake Michigan or of Lake Superior that is located within a county having a population of 750,000 or more.

30.19(1m)(d) (d) Any activity that affects a portion of a navigable stream that is located within a county having a population of 750,000 or more.