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Register March 2019 No. 759
Chapter NR 323
FISH AND WILDLIFE HABITAT STRUCTURES IN NAVIGABLE WATERWAYS
NR 323.01   Purpose.
NR 323.02   Applicability.
NR 323.03   Definitions.
NR 323.04   Fish habitat structures.
NR 323.05   Wildlife habitat structures.
NR 323.06   Enforcement.
Ch. NR 323 Note Note: Chapter NR 323 was repealed and recreated by emergency rule effective April 19, 2004; chapter NR 323 as it existed on April 30, 2005, was repealed and a new chapter NR 323 was created, Register April 2005 No. 592, effective May 1, 2005.
NR 323.01 NR 323.01Purpose. The purpose of this chapter is to establish reasonable procedures and limitations for exempt activities, general permits and individual permits for placement of fish and wildlife habitat structures in navigable waterways as regulated under s. 30.12 (1), (1g) (a), (c) and (d), (2m) and (3m) and 30.20 (1g) (b) 1. and 2., Stats., in order to protect the public rights and interest in the navigable, public waters of the state as defined in s. 30.10, Stats.
NR 323.01 History History: CR 04-064: cr. Register April 2005 No. 592, eff. 5-1-05.
NR 323.02 NR 323.02Applicability. This chapter applies to construction, placement and maintenance of fish and wildlife habitat structures regulated under ss. 30.12 (1), (1g) (a), (c) and (d), (2m) and (3m) and 30.20 (1g) (b) 1. and 2., Stats. Any person that intends to construct, place or maintain a fish or wildlife habitat structure in any navigable waterway shall comply with all applicable provisions of this chapter and any permit issued under this chapter.
NR 323.02 History History: CR 04-064: cr. Register April 2005 No. 592, eff. 5-1-05.
NR 323.03 NR 323.03Definitions. The following definitions apply to this chapter:
NR 323.03(1) (1)“Area of special natural resource interest" has the meaning in s. 30.01 (1am), Stats., and as identified by the department in s. NR 1.05.
NR 323.03(2) (2)“Bank cover" means a man-made structure composed of biological or inert materials designed to provide overhanging cover habitat for fish in streams.
NR 323.03(3) (3)“Biological materials" means living or organic materials that are biodegradable such as native grasses, sedges, forbs, shrubs and trees; live stakes and posts; non-treated wood; jute netting; fiber rolls and mats; logs; and branches.
NR 323.03(4) (4)“Department" means the department of natural resources.
NR 323.03(5) (5)“Fish crib" means a man-made 3-dimensional habitat structure composed of biological or inert materials designed specifically to attract and concentrate fish.
NR 323.03(6) (6)“Half-log" means a man-made structure composed of a log sawed lengthwise and anchored flat side down to the bottom of a lake or stream using steel rods for the purpose of providing habitat for fish.
NR 323.03(7) (7)“Inert materials" means those materials that slowly degrade, such as chemically treated wood, stone, stainless and galvanized steel, plastics and synthetic polymers.
NR 323.03(8) (8)“Navigable waterway" means any body of water with a defined bed and bank, which is navigable under the laws of the state. In Wisconsin, a navigable body of water is capable of floating the lightest boat or skiff used for recreation or any other purpose on a regularly recurring basis.
NR 323.03 Note Note: This incorporates the definition at s. 30.01 (4m) Stats., and current case law, which requires a watercourse to have a bed and banks, Hoyt v. City of Hudson, 27 Wis. 656 (1871), and requires a navigable waterway to float on a regularly recurring basis the lightest boat or skiff, DeGayner & Co., Inc. v. DNR, 70 Wis. 2d 936 (1975); Village of Menomonee Falls v. DNR, 140 Wis.2d 579 (Ct. App. 1987).
NR 323.03(9) (9)“Nesting structure" or “wildlife habitat structure" means any structure or device constructed for the purpose of improving nesting habitat for wildlife, including birds, mammals, amphibians and reptiles. Nesting structures include but are not limited to wood duck houses and nesting platforms.
NR 323.03(10) (10)“Ordinary high water mark" means the point on the bank or shore up to which the presence and action of water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognizable characteristic.
NR 323.03(11) (11)“Riparian" means an owner of land abutting a navigable waterway.
NR 323.03(12) (12)“Similar device" under s. 30.12 (1g) (c), Stats., means a man-made structure composed of biological or inert materials designed specifically for the purpose of providing habitat for fish, including but not limited to tree drops, half-logs and brush bundles.
NR 323.03(13) (13)“Spawning reef" means an expanse of rock below the surface of the water used by fish for spawning.
NR 323.03(14) (14)“Tree drop" means a man-made structure created by a tree placed into the water for the purpose of providing habitat for fish.
NR 323.03(15) (15)“Wing deflector" means a man-made structure composed of biological or inert materials placed in streams to deflect stream flow and modify stream channels for the purpose of providing habitat for fish.
NR 323.03 History History: CR 04-064: cr. Register April 2005 No. 592, eff. 5-1-05.
NR 323.04 NR 323.04Fish habitat structures.
NR 323.04(1)(1)Exemptions.
NR 323.04(1)(a)(a) Procedures. Exemptions shall be processed according to the procedures in ch. NR 310.
NR 323.04(1)(b) (b) Applicable activities. A fish habitat structure that meets the standards in par. (c) and one of pars. (d) to (h) shall be exempt under s. 30.12 (1g) (c), Stats.
NR 323.04 Note Note: Eligibility for an exemption or general permit does not automatically result in a federal permit or state water quality certification for fill in wetlands. Some projects involving minimal wetland fill may be eligible for authorization under a U.S. Army Corps of Engineers general permit which has already been granted state water quality certification or a general permit under s. 281.36 (3g) (b), Stats. (under development) All other projects affecting wetlands will require individual water quality certification including public notice as required by s. 401, Federal Clean Water Act, and s. 281.36 (3b) (b), Stats., and carried out under chs. NR 103 and 299. For further instructions, see the department's website at http://dnr.wi.gov under the topic “Waterway and Wetland Permits."
NR 323.04(1)(c) (c) General standards.
NR 323.04(1)(c)1.1. The fish habitat structure may not be located in an area of special natural resource interest, or within a public rights feature as described in s. NR 1.06.
NR 323.04(1)(c)2. 2. The fish habitat structure may be placed and maintained only by a riparian.
NR 323.04(1)(c)3. 3. The fish habitat structure shall be placed entirely within the riparian's zone of interest, as determined by one of the methods outlined in ch. NR 326. Certain habitat structures may be placed beyond the line of navigation where allowed by rule.
NR 323.04(1)(c)4. 4. The fish habitat structure shall be placed solely for the purpose of improving fish habitat.
NR 323.04(1)(c)5. 5. The riparian shall report the placement of the structure to the local department fisheries biologist within 30 days after placement. The report shall contain a description of the project and its purpose, the name of the waterway and a map showing where the structure was placed.
NR 323.04 Note Note: A list of the local department fisheries biologists is available at department service centers and on the department's website at http://dnr.wi.gov under the program “Fisheries Management and Habitat Protection."
NR 323.04(1)(c)6. 6. A deposit of sand, gravel or stone under s. 30.12 (1g) (a), Stats., may be associated with the placement of a fish habitat structure provided the deposit is limited to the area immediately underneath or within one foot of the structure and is less than 2 cubic yards.
NR 323.04(1)(c)7. 7. Dredging under s. 30.20 (1g) (b) 1., Stats., is not allowed for the placement of a fish habitat structure.
NR 323.04(1)(c)8. 8. Erosion control measures shall meet or exceed the technical standards for erosion control approved by the department under subch. V of ch. NR 151. Any area where topsoil is exposed during construction shall be immediately seeded and mulched or riprapped to stabilize disturbed areas and prevent soils from being eroded and washed into the waterway.
NR 323.04 Note Note: These standards can be found at the following website: http://dnr.wi.gov/topic/stormwater/standards/.
NR 323.04(1)(c)9. 9. Unless part of a permanent stormwater management system, all temporary erosion and sediment control practices shall be removed upon final site stabilization. Areas disturbed during construction or installation shall be restored.
NR 323.04(1)(c)10. 10. To protect fish habitat during spawning seasons, no exempt activity may take place during the following time periods:
NR 323.04(1)(c)10.a. a. For trout streams identified under s. NR 1.02 (7) and perennial tributaries to those trout streams, September 15 through May 15.
NR 323.04(1)(c)10.b. b. For all waters not identified under subd. 10. a. and located south of state highway 29, March 15 through May 15.
NR 323.04(1)(c)10.c. c. For all waters not identified under subd. 10. a. and located north of state highway 29, April 1 through June 1.
NR 323.04(1)(c)11. 11. To stop the spread of invasive species and viruses from one navigable waterway to another navigable waterway, all equipment or portions of equipment used for constructing, operating, or maintaining the project, including tracked vehicles, barges, boats, silt or turbidity curtains, hoses, sheet piles, and pumps, shall be decontaminated for invasive species and viruses before and after use or prior to use within another navigable waterway. Decontamination activities shall be performed by taking actions specified in subd. 11. a. to c. or h. Decontamination shall include either subd. 11. d., e., f., g., or h. for any equipment, or portions of equipment, that is used in non-frozen navigable waters when the air temperature is above 19 degrees Fahrenheit at the time the decontamination procedures take place.
NR 323.04(1)(c)11.a. a. Inspect all equipment used for constructing, operating, or maintaining the project and remove all plants and animals, and other mud, debris, etc.
NR 323.04(1)(c)11.b. b. Drain all water from equipment used in navigable waters.
NR 323.04 Note Note: This does not apply to water in closed engine cooling systems or water tanks, or containers of potable drinking water or other beverages meant for human consumption. If a tanker truck discharges water collected from navigable waters in upland areas, the tank does not require disinfection.
NR 323.04(1)(c)11.c. c. Dispose of plants and animals in the trash. An operator may not transfer plants or animals or water from one navigable waterway to another.
NR 323.04(1)(c)11.d. d. Wash equipment at a temperature of not less than 212 degrees Fahrenheit water (steam clean).
NR 323.04(1)(c)11.e. e. Wash equipment with soap and water or high pressure water of not less than 2000 pounds per square inch.
NR 323.04(1)(c)11.f. f. Allow equipment to dry thoroughly for not less than 5 days.
NR 323.04 Note Note: Additional drying techniques including drying through natural or mechanical means or changes in drying duration may be submitted to the department for review and approval.
NR 323.04(1)(c)11.g. g. Disinfect equipment with 200 parts per million (0.5 ounces per gallon) chlorine for not less than 10 minute contact time. Every effort should be made to keep the disinfection solution and rinse water out of surface waters.
NR 323.04 Note Note: Chlorine refers to either household bleach solution (5.25% chlorine) or granular chlorine (70% calcium hypochlorite).
NR 323.04(1)(c)11.h. h. Follow the most recent department approved disinfection protocols or department approved best management practices for infested waters. The department shall maintain on its website and make available at its offices a list of the most recent disinfection protocols or department approved best management practices for invasive species and viruses.
NR 323.04 Note Note: See the department's website at dnr.wi.gov under the topic “Waterway and Wetlands". Recommendations for additional disinfection or decontamination protocols or department approved best management practices may be submitted to the department for review and approval to be added to this list.
NR 323.04(1)(d) (d) Fish crib standards. In addition to the standards in par. (c), fish cribs shall meet the following requirements:
NR 323.04(1)(d)1. 1. Fish cribs shall have a minimum of 5 feet of water over the top of the structure. The depth and clearance of the fish cribs shall be based on the normal lowest water level condition during a calendar year.
NR 323.04(1)(d)2. 2. Fish cribs shall be constructed of biological materials, with the exception of fastening and anchoring devices.
NR 323.04(1)(d)3. 3. The dimensions of a fish crib shall be no larger than 8 feet tall by 8 feet long by 8 feet wide.
NR 323.04(1)(d)4. 4. Fish cribs may not be placed within 100 feet of swimming beaches or swim rafts.
NR 323.04(1)(d)5. 5. Fish cribs may not be located in soft sediment or muck that is greater than 12 inches in depth.
NR 323.04(1)(d)6. 6. Fish cribs may not be placed where the bottom contour of the waterway exceeds a slope of 4-foot horizontal to one-foot vertical.
NR 323.04(1)(d)7. 7. Fish cribs shall be adequately anchored to prevent movement.
NR 323.04(1)(e) (e) Spawning reef standards . In addition to the standards in par. (c), spawning reefs shall meet the following requirements:
NR 323.04(1)(e)1. 1. Spawning reefs shall be constructed of an aggregate of clean, uncrushed gravel and rock from 2 to 8 inches in diameter, in a ratio of approximately 30% ranging from 2 to 4 inches in diameter and approximately 70% ranging from 4.1 to 8 inches in diameter.
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.