2015 - 2016 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 459
January 22, 2016 - Offered by Senator Lasee.
1An Act to repeal
30.01 (1am) (c) and 30.12 (3) (a) 6. a., b. and c.; to renumber
281.16 (2) (am) 1. a.; to renumber and amend
30.12 (3) (a) 6. (intro.), 30.121 3
(3c), 30.121 (3w) (c) and 281.36 (3n) (a); to amend
30.01 (1am) (a), 30.01 (1am) 4
(b), 30.01 (1d), 30.025 (5), 30.12 (1k) (f), 30.12 (3) (a) 3c., 30.12 (3) (a) 3g., 30.12 5
(3) (a) 3r., 30.12 (3) (a) 13., 30.12 (3) (c), 30.121 (1), 30.133 (1), 30.19 (1b) (a), 6
30.19 (1g) (a), 30.19 (1g) (am), 30.206 (1) (a), 30.29 (3) (d), 31.02 (1), 31.185 (5), 7
281.36 (3m) (b) and 281.36 (4) (d); and to create
23.24 (4) (b) 4., 30.01 (1am) (d), 8
(e), (f) and (g), 30.01 (5p), 30.01 (6b), 30.053, 30.106, 30.115, 30.12 (1g) (am), 9
30.12 (3m) (cr), 30.121 (3b), 30.121 (3c) (c), 30.121 (3w) (c) 3., 30.125, 30.19 (1m) 10
(dm), 30.19 (4) (d), 30.20 (1g) (b) 3., 30.20 (1t) (b), 30.20 (1t) (c), 30.20 (2) (cn), 11
281.16 (1) (bg), 281.16 (2) (c), 281.36 (3n) (a) 2. and 3., 281.36 (3n) (am) and
281.36 (4) (f) of the statutes;
relating to: the regulation of navigable waters
Analysis by the Legislative Reference Bureau
This substitute amendment makes various changes to the regulation of
navigable waters, artificial water bodies, wetlands, and nonpoint source pollution.
Title to the bed of certain filled navigable waters
Under current statutory and common law, this state holds title to navigable
waters in trust for public purposes. This body of law, commonly referred to as the
public trust doctrine, is encompassed in article IX, section 1, of the Wisconsin
Constitution. Under the public trust doctrine, the state has traditionally been the
owner of lake beds up to the ordinary high-water mark (OHWM).
This substitute amendment provides that any area of a navigable water that
was filled before January 1, 1975, and that has remained continuously filled since
January 1, 1975, is owned by the riparian owner in whose riparian zone the filled
area is located. The substitute amendment defines the riparian zone as the area that
extends from the riparian land waterward to the line of navigation, the depth which
is generally needed to operate a boat on the water, as determined by a method that
establishes riparian zone lines between adjacent riparian owners in a manner that
equitably apportions access to the line of navigation. The substitute amendment
establishes that, if by January 1, 2016, there has been public use of the filled area
that is visible, open, and notorious and of which a reasonable riparian owner would
be aware, then the riparian owner's ownership of the filled area is subject to a public
easement for that public use. The substitute amendment prohibits the Department
of Natural Resources from requiring the riparian owner of the filled area to remove
the fill and requires DNR to furnish a quitclaim deed to the riparian owner of the
filled area upon request.
Applicability of navigable water law to artificial water bodies
Under this substitute amendment, unless specifically provided otherwise, the
statutes that regulate navigable waters, harbors, and boating do not apply to an
artificial water body that is not hydrologically connected to a natural navigable
waterway and that does not discharge into a natural navigable waterway except as
a result of storm events. An artificial water body is 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.
The level and flow of water
Under the substitute amendment, DNR may regulate and control the level and
flow of water in all navigable waters in the interest of public rights in navigable
waters; to promote safety; and to protect life, health, property, property values, and
Navigable water permits
Under current law, a person must obtain one or more permits from DNR in
order to conduct certain activities that occur in or near navigable waterways,
including placement of structures or deposits in navigable waters; construction or
maintenance of bridges and culverts; enlarging or connecting waterways; altering
the courses of streams and rivers; removing material from the bed of a navigable
waterway; and constructing, dredging, or enlarging an artificial water body that
connects with a navigable waterway or that is located within 500 feet of the OHWM
of an existing navigable waterway. The bed of a navigable water includes the area
between the water's edge and the OHWM (shoreline area).
Under current law, some activities are exempt from these permitting
requirements, some activities require that the person be issued an individual permit
for the activity, and some activities are authorized under statewide general permits.
If a general permit covers an activity, the person proposing to conduct the activity
must notify DNR that the person wishes to proceed with the activity. If DNR does
not request additional information or notify the person that an individual permit will
be required within 30 days after receipt of the notification, the person may proceed
with the activity.
This substitute amendment does the following with respect to general permits
and individual permits to conduct activities in navigable waters:
1. Requires DNR to issue a general permit that authorizes a riparian owner to
remove up to 30 cubic yards of material from the bed of an inland lake in the riparian
owner's riparian zone and up to 100 cubic yards of material from the bed of outlying
waters in the riparian owner's riparian zone.
2. Prohibits DNR from requiring a person to collect a sediment sample as part
of an application for an individual permit or prior to proceeding under a general
permit, unless DNR has specific information that indicates the potential that
contaminants may be present in the material proposed to be dredged.
3. Exempts from the permit requirements certain shoreline maintenance
activities that are conducted in certain shoreline areas.
4. Exempts from the permit requirements the dredging of an artificial water
body that does not connect with a navigable waterway.
5. Establishes that a permit is required to construct or enlarge an artificial
water body that is within 500 feet of the OHWM of an existing navigable waterway
but that does not or will not connect with the existing navigable waterway.
6. Limits the types of areas that DNR may identify as areas of special natural
resource interest (ASNRI) and requires the Joint Committee for Review of
Administrative Rules to approve any new types identified by DNR. Under current
law, a riparian owner is exempt from the permit requirement for depositing material
or placing a structure on the bed of certain navigable waters if the structure or
material is located in an area other than an ASNRI, does not interfere with riparian
rights of other riparian owners, and is a certain type of structure or material.
7. Provides that, in issuing general permits for the replacement or repair of
existing riprap or the replacement of seawalls, DNR may not impose conditions that
prohibit the replacement or repair of riprap or the replacement of seawalls located
in areas designated as ASNRI.
Structures in navigable waters
Under this substitute amendment, a DNR decision that a riparian owner does
not fall under an exemption to the prohibition against placing a pier or wharf on the
bed of a navigable water may only be challenged through a declaratory judgment
proceeding in the circuit court for the county in which the riparian property is located
and is not subject to a contested case hearing or judicial review under the statutory
administrative review procedures. Under current law, a DNR decision against the
riparian owner is subject to a new trial.
Under this substitute amendment, an owner of riparian land abutting a
navigable water who owns a boat docking facility that is lawfully placed in that water
is not prohibited from entering into an agreement with another owner of riparian
land abutting the same navigable water to use a shared boat docking facility
provided that the agreement does not result in more slips than are authorized.
This substitute amendment changes the definition of a boathouse to specify
that a boathouse is a structure used for one or more years for the storage of watercraft
and associated materials regardless of its current use. The substitute amendment
also makes various changes to the regulation of boathouses, including:
1. Allows a boathouse located beyond the OHWM of a navigable waterway to
be expanded, and provides that the expansion does not require a permit, if the
boathouse is listed in the national register of historic places in Wisconsin or the state
register of historic places, the boathouse is not expanded beyond its listed historical
boundaries, and the expansion does not involve the placement of any new structure
on the bed of a navigable water.
2. Adds foundations to the list of structural elements of a boathouse that may
be replaced within the current cost limit on repairing and maintaining a boathouse.
3. Allows the repair or maintenance of a boathouse in existence on December
16, 1979, to affect the configuration of the boathouse and still fall under the exception
to the cost limit on repairing and maintaining such a boathouse, but adds a condition
that the repair or maintenance may not involve the placement of a floor over a wet
bay in the boathouse.
Under current law, a boat shelter is a structure used for the storage of
watercraft and associated materials that has no walls or sides. This substitute
amendment eliminates the conditions that DNR may place on a general permit
authorizing a riparian owner to place a boat shelter relating to the location of the
shelter and other existing structures. Under the substitute amendment, DNR may
impose conditions on the general permit governing the architectural features of boat
shelters and the number of boat shelters that may be placed adjacent to a parcel of
land, but those conditions may not govern the distance that a boat shelter will extend
from the shore and may not be based on the degree to which adjacent land is
developed. Also under the substitute amendment, in determining whether to issue
an individual permit to the owner of a proposed permanent boat shelter, DNR may
not deny the permit on the basis of the distance at which a boat shelter will extend
from the shore or the degree to which adjacent land is developed.
This substitute amendment requires DNR, in the general permit authorizing
a riparian owner to replace an existing seawall for which DNR has issued a permit,
to authorize a seawall for which DNR granted an exemption from a permit
requirement or for which no permit was required when the seawall was built.
This substitute amendment requires DNR, in the general permit authorizing
a riparian owner to place riprap on the bed or bank of a navigable water adjacent to
the owner's property in certain amounts, to authorize the riprap to extend to the top
of the bank of the navigable water or four feet above the OHWM, whichever is lower.
Operation of a vehicle in navigable water
This substitute amendment exempts from the general prohibition on operating
a utility terrain vehicle or all-terrain vehicle on any navigable water or the exposed
bed of a navigable water a person engaged in activities landward of a lawfully
established bulkhead line for which no general or individual permit and no contract
is required under navigable water law.
Current law requires DNR to issue certain wetland general permits for
discharges to wetlands that are necessary for the treatment or disposal of hazardous
waste or toxic pollutants if not more than two acres of wetlands are affected, and
discharges for commercial, residential, or agricultural purposes if not more than
10,000 square feet of wetland are affected. Current law allows DNR to establish
different requirements, conditions, and exceptions in general permits to ensure that
the discharges will cause only minimal adverse environmental effects. Current law
establishes a procedure for obtaining authorization to proceed under a wetland
general permit that is similar to the procedure for obtaining authorization under
general permits that authorize structures and other activities in or near navigable
waters. Current law also authorizes DNR to require a person to apply for and obtain
a wetland individual permit if DNR determines that conditions specific to the site
require additional restrictions on the discharge in order to provide reasonable
assurance that no significant adverse impacts to wetland functional values will
This substitute amendment exempts from the permitting requirement any
discharge that is the result of maintaining a sedimentation or stormwater detention
basin and associated conveyance features. Current law exempts from the permitting
requirement any discharge that is the result of maintaining a drainage ditch, and
this substitute amendment adds to this exemption a discharge that is the result of
a roadside ditch. However, the substitute amendment removes from these
exemptions any drainage or roadside ditch that serves as fish spawning habitat or
a passage to fish spawning habitat in Brown or Oconto County.
Practicable alternatives review