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
Under current law, DNR reviews the practicable alternatives presented in an
application for a individual permit, and must find that the project complies with
wetland quality standards if it determines that the proposed project represents the
least environmentally damaging practicable alternative, all practicable measures to
minimize the adverse impact to wetland functional values will be taken, and the
discharge will not result in significant adverse impacts to wetland functional values
or to water quality or result in any other significant adverse environmental
consequences. Upon making such a finding, DNR is authorized, but is not required,
to issue a wetland individual permit.
Current law requires DNR to limit its review of practicable alternatives to those
that are located at the site of the discharge or adjacent to that site if the applicant
has demonstrated that the proposed project causing the discharge will result in a
demonstrable economic public benefit, that the proposed project is necessary for the
expansion of an existing industrial, commercial, or agricultural facility that is in
existence at the time the application is submitted, or that the proposed project will
occur in an industrial park that is in existence at the time the application is
submitted. This substitute amendment also requires DNR to limit its review of
practicable alternatives to those located on the property owned by the applicant for
projects involving fewer than two acres of wetland if the project is limited to either
the construction or expansion of a single-family home and attendant features, the
construction or expansion of a barn or farm buildings, or the expansion of a business
project. However, the substitute amendment provides that a project that is part of
a common plan of development initiated after July 1, 2012, is not eligible for this
limited review unless wetland boundaries on the project site as shown in an onsite
delineation have changed since commencement of the development project.
The substitute amendment requires DNR to limit its review of practicable
alternatives to those that are consistent with the overall purpose and scope of the
project. The substitute amendment also requires DNR to impose a level of scrutiny
and to require an applicant to provide an amount of information that is
commensurate with the severity of the environmental impact of the project, as
determined by DNR.
Utility permit procedure
Under current law, with certain exceptions, a public utility may not begin
construction on a utility project, and no person, including a public utility, may
construct a large electric generating facility or a high-voltage transmission line,
unless the Public Service Commission (PSC) has issued a certificate for the project.
A public utility is a company or municipality that produces or delivers heat, light,
water, or power to or for the public.
Generally, under current law, a person must submit an application to DNR for
each required permit, including an individual permit to conduct an activity in a
navigable water or a discharge in a wetland. If the applicant is a utility that is
required to obtain a certificate from the PSC, however, the utility must submit a
single application to DNR requesting all of the DNR permits that the utility is
required to obtain for a given project affecting navigable waters and wetlands and
must follow a different procedure for obtaining these DNR permits (utility
This substitute amendment removes the exemption in current law that
provides that the permit application procedures that would normally apply to an
application for an individual permit do not apply to an application for an individual
permit submitted under the utility application procedure. This substitute
amendment also removes the exemption in current law that provides that the
procedures that would normally apply to administrative and judicial review of a
DNR decision on an individual permit do not apply to decisions on an individual
permit submitted under the utility application procedure. Instead, the substitute
amendment specifies that the utility permit procedures are exclusive and apply in
lieu of any other procedures that would otherwise apply to permits applied for under
the utility permit procedure.
Also under this substitute amendment, there is no opportunity to object to, and
request a stay of, a DNR decision related to a wetland individual permit applied for
under the utility application procedure.
Nonpoint water pollution
This substitute amendment provides that, if a covered municipality has
obtained all permits required for the construction of a stormwater management pond
in an artificial water body, whether navigable or nonnavigable, DNR may not
prohibit the construction of the stormwater management pond as a method by which
the covered municipality may achieve compliance with DNR's prescribed
performance standards for sources of nonpoint water pollution, which is water
pollution from diffuse sources, or with an approved total maximum daily load
(TMDL) requirement. A covered municipality is a municipality that has been issued
an individual municipal separate storm sewer permit or that is covered by a general
municipal separate storm sewer permit. A TMDL is the maximum amount of a
pollutant that a body of water can receive and still meet water quality standards.
DNR's current rules provide that, for the purpose of determining compliance
with performance standards, DNR may give credit for the use of practices, measures,
or techniques (best management practices) that minimize pollutants carried in
runoff. The rules prohibit DNR from giving credit for a best management practice
that is located in a navigable water. The substitute amendment provides that DNR
must give credit for any pollutant reduction achieved by a pond constructed by a
covered municipality in determining compliance with performance standards
specified in a stormwater discharge permit or with an approved TMDL requirement.
The substitute amendment also provides that, if a covered municipality applies
for an individual permit for the construction of a stormwater management pond in
an artificial water body, whether navigable or nonnavigable, for the purpose of
achieving compliance with performance standards specified in a stormwater
discharge permit or with an approved TMDL requirement, in making its
determination DNR is required to take into consideration the sediment control in
and water quality improvements to the watershed as a whole that result from the
stormwater management pond.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows: