In a state proceeding to enforce a department of natural resources 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
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
When a department of natural resources decision prohibited a structure under this section and the riparian owner did not seek review under s. 227.20 [now s. 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. Department of Natural Resources, 77 Wis. 2d 558
, 253 N.W.2d 887
“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
Section 66.24 (5) (c) [now s. 200.11 (5) (c)] does not exempt sewerage districts from the requirements of s. 30.12. Cassidy v. Department of Natural Resources, 132 Wis. 2d 153
, 390 N.W.2d 81
(Ct. App. 1986).
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
The holder of an easement does not qualify as a riparian owner. De Nava v. Department of Natural Resources, 140 Wis. 2d 213
, 409 N.W.2d 151
(Ct. App. 1987).
In considering whether a proposed structure is detrimental to the public interest, the department of natural resources 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. Department of Natural Resources, 205 Wis. 2d 710
, 556 N.W.2d 702
(Ct. App. 1996), 95-3526
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. Department of Natural Resources, 2000 WI App 27
, 232 Wis. 2d 430
, 606 N.W.2d 255
Although in granting pier permits under s. 30.12 the department of natural resources 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. Department of Natural Resources, 2000 WI App 27
, 232 Wis. 2d 430
, 606 N.W.2d 255
A permit under this section is akin to a building permit. There is no ongoing requirement to satisfy the criteria in sub. (3m) (c) 1. to 3. Myers v. DNR, 2019 WI 5
, 985 Wis. 2d 176
, 922 N.W.2d 47
Municipal regulations enacted under s. 30.13 (2) cannot be applied to a pier that qualifies for a permit exemption under sub. (1g) (f). Oneida County v. Sunflower Prop II, LLC, 2020 WI App 22
, 392 Wis. 2d 293
, 944 N.W.2d 52
New Law Eases Requirements: Navigable Waterway Permits. Wheeler. Wis. Law. Aug. 2012.
Regulation of boathouses and houseboats. 30.121(1)(1)
In this section, the terms “maintain" and “repair" include replacing structural elements, including roofs, doors, walls, windows, beams, porches, floors, and foundations.
After December 16, 1979 no boathouse or fixed houseboat may be constructed or placed beyond the ordinary high-water mark of any navigable waterway.
(3) Maintenance and repair.
The riparian owner of any boathouse or fixed houseboat extending beyond the ordinary high-water mark of any navigable waterway may repair or maintain the boathouse or fixed houseboat if the cost to repair or maintain the boathouse or fixed houseboat does not exceed 50 percent of the equalized assessed value of the boathouse or fixed houseboat and the repair or maintenance does not involve the placement of a floor over a wet bay on or after September 1, 2016. If the boathouse or fixed houseboat is not subject to assessment, the owner may repair or maintain the boathouse or the fixed houseboat if the cost of the repair or maintenance does not exceed 50 percent of the current fair market value of the boathouse or fixed houseboat and the repair or maintenance does not involve the placement of a floor over a wet bay on or after September 1, 2016.
(3c) Exception; certain boathouses.
does not apply to repairing or maintaining a boathouse if the boathouse was in existence on December 16, 1979, and if all of the following apply to the repair or maintenance:
It does not affect the size or location of the boathouse.
It does not result in the boathouse being converted into living quarters.
It does not involve the placement of a floor over a wet bay in the boathouse on or after September 1, 2016.
(3g) Exception; historical or cultural value.
does not apply to repairing or maintaining 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
(3m) Exception; certain single-story boathouses.
Notwithstanding subs. (2)
, a person may construct, repair or maintain a single-story boathouse over an authorized waterway enlargement if:
The boathouse does not extend beyond the ordinary high-water mark as it existed prior to the creation of the enlargement;
The boathouse covers the entire enlargement; and
Living quarters or plumbing fixtures are not constructed in the boathouse.
(3r) Exception; damages after January 1, 1984.
do not apply to repairing or reconstructing a damaged boathouse if the boathouse was damaged by violent wind, vandalism or fire and if the damage occurs after January 1, 1984.
(3w) Exception; commercial boathouses.
Notwithstanding subs. (2)
, a person may construct, repair, or maintain a boathouse if all of the following apply:
The boathouse is used exclusively for commercial purposes.
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. 238.13 (1) (a)
, or in a blighted area, as defined in s. 66.1331 (3) (a)
The boathouse is in any of the following locations:
Within a harbor that is being operated as a commercial enterprise.
On a river that is a tributary of Lake Michigan or Lake Superior.
On an outlying water and the work is limited to the expansion, repair, or maintenance of an existing boathouse.
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.
(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.
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.
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.
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.
See also ch. NR 325
, Wis. adm. code.
A boathouse on a navigable, artificially created waterway maintained over private property with waters from a natural waterway is subject to regulation. Klingeisen v. Department of Natural Resources, 163 Wis. 2d 921
, 472 N.W.2d 603
(Ct. App. 1991).
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
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), 96-3514
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.
History: 1977 c. 189
Bridges and culverts. 30.123(2)(2)
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.
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.
does not apply to any of the following:
The construction and maintenance of bridges by the department of transportation in accordance with s. 30.2022
The construction or placement and the maintenance of a replacement culvert that is placed in substantially the same location as the culvert being replaced if the replacement culvert is constructed or placed using best management practices to comply with water quality standards under subch. II of ch. 281
The construction or maintenance of bridges and the construction or placement and maintenance of culverts that are related to the construction, access, or operation of a new manufacturing facility and that affect a portion of a navigable stream within an electronics and information technology manufacturing zone designated under s. 238.396 (1m)
(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)
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:
Significant adverse impacts to the public rights and interests.
Material injury to the riparian rights of any riparian owner.
If the department requires a person who replaces a culvert to apply for an individual permit or seek authorization under a general permit under sub. (6m)
, notwithstanding the exemptions under sub. (6) (d)
, and if the department includes conditions in the individual permit or under the general permit that are different than the conditions in the permit issued for the culvert being replaced, the department may not impose a fee for the individual permit or for authorization under the general permit and shall reimburse that person, from the appropriation under s. 20.370 (8) (ma)
, for his or her reasonable costs incurred in complying with the different conditions in the permit.
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)
. The statement shall contain a description of the proposed activity and site and shall give the department consent to enter and inspect the site.
The department shall do all of the following within 15 days after receipt of a statement under par. (a)
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.
Make a determination as to whether the activity is exempt.
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.
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.
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.
The department may promulgate rules concerning the exempt activities under sub. (6)
that only do any of the following:
Establish reasonable installation practices for culverts to minimize environmental impacts.
Establish reasonable construction and design requirements for culverts that are consistent with the purpose of the activity.
Establish reasonable limitations on the location of culverts at the site affected by the activity.
Notwithstanding par. (a)
, the rules under par. (a) 1.
may not establish practices or requirements that prohibit the construction of culverts or that render the placement of culverts economically cost-prohibitive.
(7) General permits.
The department shall issue statewide general permits under s. 30.206
that authorize any person to do all of the following:
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.
Construct and maintain a culvert that replaces a culvert that is not exempt under sub. (6) (d)
and that is in a navigable water that is less than 35 feet wide.
Construct and maintain a bridge that is supported only by culverts in a navigable water that is less than 35 feet wide.
Construct, reconstruct, and maintain bridges and culverts that are part of a transportation project that is carried out under the direction and supervision of a municipality.
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.
The department shall issue an individual permit pursuant to an application under par. (a)
if the department finds that all of the following requirements are met:
The bridge or culvert will not materially obstruct navigation.
The bridge or culvert will not materially reduce the effective flood flow capacity of a stream.
The bridge or culvert will not be detrimental to the public interest.
A city, village, town, or county that replaces a culvert and that is exempt from the permitting requirements under sub. (6)
shall make and retain a record of the replacement of the culvert. The record shall include all of the following information:
The date on which the replacement culvert was constructed or placed.