Chapter NR 1

NR 1.91(6)(b)3. 3. Appropriate levels and types of public access based on a consideration of the issues in subds. 1. and 2.

NR 1.91(6)(b)4. 4. Ability of the municipality to effectively implement the plan.

NR 1.91(6)(c) (c) The department shall approve proposed plans and implementing ordinances if it determines that the plans and implementing ordinances are consistent with protection of public health, safety and welfare, the objectives of s. NR 1.90 and include an accurate analysis of the issues in par. (b). Department decisions related to plan approval may be appealed under ch. 227, Stats. The department shall withhold enhancement services until an approved plan is fully implemented. Public boating access site development shall comply with any approved plan. The department may not approve grants and permits if the decision would conflict with an approved plan.

NR 1.91(6)(d) (d) The sponsor of an approved plan shall publish a summary of the plan as a class I legal notice.

NR 1.91(6)(e) (e) The department may waive the minimum reasonable access standards or the need for an alternative plan where it finds that this would not serve to protect the public rights and interest in the waterway.

NR 1.91(7) (7) Private providers. Privately owned public boating access shall be included in any determination of access availability for purposes of compliance with ss. NR 1.91 to 1.93 and provision of resource enhancement services if:

NR 1.91(7)(a) (a) It is provided free or for a reasonable fee, as defined in sub. (11),

NR 1.91(7)(b) (b) The owner furnishes an irrevocable contract with the state, agreeing to provide specified public boating access facilities for not less than 5 years, and

NR 1.91(7)(c) (c) Facilities meet the public boating access site development standards under sub. (8).

NR 1.91(8) (8) Public boating access site development standards. In addition to other state and federal requirements, including but not limited to the uniform federal accessibility standards (UFAS) published by the architectural and transportation barriers compliance board (ATBCB), the Americans with disabilities act (P.L. 101-336) accessibility guidelines (ADAAG) and the state of Wisconsin building codes (chs. SPS 361 to 365), the following standards shall apply to acquisition, development and maintenance of boating access sites for the purpose of determining compliance with ss. NR 1.90 to 1.93:

NR 1.91(8)(a) (a) Natural shoreline beauty shall be protected by preserving or creating adequate vegetative screening for facilities and parking.

NR 1.91(8)(b) (b) The sum of all public boating access sites on a water body shall accommodate multiple types of use appropriate for the waterway. Individual access sites shall be designed to minimize conflicts between uses at the site and on the water body.

NR 1.91(8)(c) (c) The site and support facilities shall be designed and located so as to avoid damage to critical habitat and other environmentally sensitive areas.

NR 1.91(8)(d) (d) Each site shall be designed to provide barrier-free public boating access for persons with disabilities.

NR 1.91(8)(e) (e) Each site shall be clearly marked at public roadways. Fees and hours of operation shall be clearly posted.

NR 1.91(9) (9) Financial assistance programs. Providing public boating access is a partnership program between state and local units of government. The department may only provide financial assistance for projects which comply with ss. NR 1.90 to 1.93 and other applicable state and federal requirements. The department shall assist municipalities in applying for state financial assistance for renovation, operation or maintenance expenses if the maximum allowable launch fees do not provide enough revenue to pay for these access site expenses.

NR 1.91(10) (10) Maintenance agreements. When in the best interests of the state, the department may engage the services of others, by written agreement, with or without compensation, for maintenance of state-owned or funded public boating access sites.

NR 1.91(11) (11) Boat launching fees. The department encourages free boat launching. A reasonable launch fee may be charged under authority of s. 30.77, Stats., for the purpose of operating and maintaining a boat access site owned or operated by municipalities, lake management districts and other access providers meeting the provisions of sub. (7). Charging excessive, unjustified or unreasonable boat launching fees restricts or prohibits public boating access and use of navigable waters in the state. A reasonable launch fee for the purposes of s. 30.77, Stats., is one that does not exceed the maximum allowable amount under the following criteria:

NR 1.91(11)(a) (a) Base fee. A base is that fee that is charged a state resident vehicle for entrance to the state parks.

NR 1.91(11)(b) (b) Public boating access surcharges. Municipalities, lake management districts and other public boating access providers that maintain any of the following services may add to the base fee not more than the following surcharges for vehicles with trailers. No more than the base fee may be charged for non-motorized or non-trailered boats.

NR 1.91(11)(b)1. 1. Attendant when on duty   .20 X Base

NR 1.91(11)(b)2. 2. On-site toilet facilities   .20 X Base

NR 1.91(11)(b)3. 3. Great Lakes sites   .30 X Base

NR 1.91(11)(b)4. 4. Boats 20 ft. in length or more but
  less than 26 ft.   .30 X Base

NR 1.91(11)(b)5. 5. Boats 26 ft. or greater in length   .60 X Base

NR 1.91(11)(c) (c) Daily launch fee. The total of base fee and all applicable surcharges, rounded to the nearest quarter of a dollar, shall constitute the daily launch fee. A daily launch fee that is paid shall be valid for all boat access facilities provided by the issuing authority for that day. If different fees are charged by the issuing authority for different access sites, the higher fee shall be allowed for use of all the sites.

NR 1.91(11)(d) (d) Season pass. If a launch fee is charged, a season pass at a fee not to exceed 10 times the daily launch fee shall be provided for both residents and non- residents. A mechanism to obtain a season pass shall be provided by the public access provider at the launch site.

NR 1.91(11)(e) (e) Prior approval required. Each public boating access provider charging a launch fee in excess of the resident state park daily entrance fee shall provide its fee schedule to the department for approval prior to its adoption. The fee schedule shall be submitted on department forms available from [the] department’s central office. Department approval shall be based solely on demonstration that the provider maintains the facilities or services described in par. (b) that justify charges in excess of the resident state park daily entrance fee and that a season pass is available.

NR 1.91 Note Note: A missing word is shown in brackets.

NR 1.91 Note Note: The department’s mailing address is: Department of Natural Resources, P.O. Box 7921, Madison, WI 53707.

NR 1.91(11)(f) (f) Existing approved fee structures. Reasonable fees under pars. (a) to (e), do not apply to access sites which the department has determined in a written decision to have a reasonable fee prior to the effective date of this rule.

NR 1.91(11)(g) (g) Differential fee based on residency. Local units of government, including lake management districts, which maintain and operate public boating access sites, may charge differential fees on the basis of residency within the unit of government maintaining or operating the access. If a fee is charged, the fees for a nonresident may not exceed 150% of the fee charged a resident and nonresident fees may not exceed the maximum allowable amounts except when par. (b) 4. or 5. are applicable.

NR 1.91 Note Note: For example, with a daily resident entrance fee of $4.00 for state parks, at an access site on an inland lake with an attendant on duty and toilet facilities, a launch fee for an 18 foot boat may be as high as $5.50 (4 + 0.2 (4) + 0.2 (4), rounded to nearest 0.25) for both residents and non-residents, and for a 26 foot boat as high as $8.00 (4 + 0.2 (4) + 0.2 (4) + 0.6 (4), rounded to nearest 0.25) for residents and $12.00 (8 x 1.5, rounded to nearest 0.25) for non-residents.

NR 1.91 History History: Cr. Register, October, 1977, No. 262, eff. 11-1-77; r. and recr. Register, March, 1994, No. 459, eff. 4-1-94; am. (2) (d), Register, June, 1995, eff. 7-1-95; correction in (6) (a) and (8) (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1999, No. 525; correction in (8) made under s. 13.93 (2m) (b) 7., Stats., Register September 2004 No. 585; correction in (8) made under s. 13.92 (4) (b) 7., Stats., Register February 2012 No. 674; CR 19-078: am. (2) (d) Register May 2020 No. 773, eff. 6-1-20.

NR 1.92 NR 1.92 Abandonment of access.

NR 1.92(1) (1) Notice of intent to abandon an access.

NR 1.92(1)(a) (a) Any municipality subject to s. 66.1006, Stats., which proposes to abandon or discontinue any highway, street, alley or right-of-way, which provides public access to a navigable waterway, shall provide a copy of the resolution or ordinance and notify the department at least 10 working days prior to acting on a resolution or ordinance to abandon or discontinue. Within 10 working days of enacting an ordinance or resolution subject to approval under s. 66.1006, Stats., the municipality shall submit a copy of the ordinance or resolution to the department. Upon receipt of the ordinance or resolution, the department shall publish a notice of the proposed abandonment pursuant to the procedures in s. 31.06, Stats. If no hearing is requested, the department shall proceed under sub. (2) to grant or deny the petition.

NR 1.92(1)(b) (b) If a hearing is requested, the department shall hold the hearing as a class 1 contested case in the county in which the public access is proposed to be abandoned. The department shall make its decision based on the standards in sub. (2).

NR 1.92(2) (2) Findings for granting. The department may grant the petition to abandon or discontinue the public access only if:

NR 1.92(2)(a) (a) Any access sites or part thereof proposed to be abandoned or discontinued is replaced prior to granting the petition; or

NR 1.92(2)(b) (b) The department finds that the access proposed to be abandoned does not contribute to the quality or quantity of public access on the body of water.

NR 1.92(3) (3) Approval conditions. The department may order conditions of approval including, but not limited to, a showing of financial capability of the petitioner to provide and maintain an equivalent or superior replacement public access site, and other conditions related to assurance of protection of the interest of the public in the body of water.

NR 1.92(4) (4) Environmental degradation. Access sites may also be abandoned where environmental degradation is occurring at the site as a result of existing use, and abandonment of the access will reduce or eliminate the degradation without reducing public interests in access to that body of water.

NR 1.92 History History: Cr. Register, April, 1975, No. 232, eff. 5-1-75; renum. from NR 1.32, Register, October, 1977, No. 262, eff. 11-1-77; r. and recr. Register, March, 1994, No. 459, eff. 4-1-94; corrections in (1) (a) made under s. 13.93 (2m) (b) 7., Stats., Register April 2005 No. 592.

NR 1.93 NR 1.93 Access in platted subdivisions. Under s. 236.16 (3), Stats., the department has authority to recommend wider access at less frequent intervals than are prescribed in the statutes. The department shall consider waiver of the 60-foot access requirement only where the department determines:

NR 1.93(1) (1) It will be advantageous to public interests in navigable water;

NR 1.93(2) (2) Adequate space for access users and adequate buffering for private property is assured by access wider than 60 feet where possible; and

NR 1.93(3) (3) The access that would result provides an equal or greater opportunity for public access than would be provided by dedication at statutorily prescribed intervals and the 60-foot width.

NR 1.93 History History: Cr. Register, January, 1980, No. 289, eff. 2-1-80; am. (2) (a) and (2) (b) 7., r. and recr. (3), r. (4) (a) 3., Register, October, 1982, No. 322, eff. 11-1-82; r. and recr. Register, March, 1994, No. 459, eff. 4-1-94.

NR 1.95 NR 1.95 Wetlands preservation, protection, restoration and management.

NR 1.95(1) (1) Purpose. It is the intent of the natural resources board to establish rules policy for the preservation, protection, restoration and management of wetlands in the state of Wisconsin. The administrative rules regarding wetlands shall be applied in such a manner as to avoid or minimize the adverse effects on wetlands due to actions over which the department has regulatory or management authority and to maintain, enhance and restore wetland functions and values. Proposals for administrative rules and for legislation shall include appropriate provisions, consistent with this section, except as otherwise provided by law.

NR 1.95(2) (2) Authority. The department, under existing law, has the responsibility of making and enforcing regulatory and management decisions which, directly or indirectly, affect the quantity and quality of many Wisconsin wetlands.

NR 1.95(2)(a) (a) Wisconsin has a history of active water resource protection under the public trust doctrine which originated in the northwest ordinance of 1787, the enabling act under which Wisconsin became a state, and the Wisconsin constitution.

NR 1.95(2)(b) (b) The department is designated under s. 281.11, Stats., as the central unit of state government responsible for protecting, maintaining and improving the quality of the waters of the state. Department actions must be consistent with the goal of maintaining, protecting and improving water quality.

NR 1.95(2)(c) (c) Under the Wisconsin environmental policy act, s. 1.11, Stats., the department is required to study, develop and describe appropriate alternatives to recommended courses of action for proposals which involve unresolved conflicts concerning alternative uses of available resources and to make decisions with the knowledge of their effects on the quality of the human environment.

NR 1.95(2)(d) (d) The department, pursuant to ss. 23.09 and 29.011, Stats., and s. NR 1.015, must provide for the protection, development and use of forests, fish and game, lakes, streams, plant life, flowers and other outdoor resources of the state. The department is obliged to develop and implement appropriate scientific management practices to achieve these objectives.

NR 1.95(3) (3) Natural resources board findings.

NR 1.95(3)(a) (a) Introduction. The presence of wetlands signifies physical characteristics which are limiting factors in the human activities which may occur in and adjacent to them. What may be limitations for one use of a wetland may also be the principal values supporting a different use. The state’s policy as articulated in its trusteeship of navigable waters and the statutes enacted to further the protection and enhancement of the quality of its waters, creates a presumption against activities which adversely affect those wetlands under department jurisdiction or control.

NR 1.95(3)(b) (b) Wetland values. Wetlands are known to possess a wide range of natural and human values, some or all of which may apply to a particular wetland under review. Assessing the value of a wetland is a complex procedure requiring thoughtful analysis of all possible wetland values and functions.

NR 1.95(3)(b)1. 1. ‘Biological functions.’ Wetlands are environments in which a variety of biological functions occur. In many cases, wetlands are very productive ecosystems which support a wide diversity of aquatic and terrestrial organisms. Many wetland areas are vital spawning, breeding, nursery or feeding grounds for a variety of indigenous species. Some wetlands are the habitats for state or federally designated rare, threatened or endangered species.

NR 1.95(3)(b)2. 2. ‘Watershed functions.’ In addition to their biological functions, wetlands may serve important physical and chemical functions with respect to other wetlands and waters of the state. A specific wetland, or set of wetlands, may play a critical role in maintaining the stability of the ecosystem to which it is physically and functionally related. This functional role may include the maintenance of both the hydrologic patterns and the physical and chemical processes of related wetlands and other related waters of the state.

NR 1.95(3)(b)2.a. a. A particular wetland may function to maintain the hydrologic characteristics, and thereby the physical and chemical integrity of an entire aquatic ecosystem.

NR 1.95(3)(b)2.b. b. Groundwater may discharge to a wetland, recharge from a wetland to another area, evaporate from and/or flow through a wetland.

NR 1.95(3)(b)2.c. c. Some wetlands may be important for storing water and retarding flow during periods of flood or storm discharge. Even wetlands without surface water connections to other water bodies may serve this function. Such wetlands can reduce or at least modify the potentially damaging effects of floods by intercepting and retaining water which might otherwise be channeled through open flow systems. The importance of a given wetland for storm and flood water storage may be modified by the cumulative effects of the proposed activities and previous activities within the watershed.

NR 1.95(3)(b)2.d. d. Wetlands also function to dissipate the energy of wave motion and runoff surges from storms and snowmelt, and thus lessen the effects of shoreline erosion. Wave action shielding by wetlands is not only important in preserving shorelines and channels, but also in protecting valuable residential, commercial and industrial acreage located adjacent to the aquatic ecosystems.

NR 1.95(3)(b)2.e. e. A wetland may perform a variety of other important functions within a watershed. Wetlands may degrade, inactivate or store materials such as heavy metals, sediments, nutrients, and organic compounds that would otherwise drain into waterways.

NR 1.95(3)(b)3. 3. ‘Recreational, cultural and economic value.’ Some wetlands are particularly valuable in meeting the demand for recreational areas (for uses such as hunting, canoeing, hiking, snowshoeing, and nature study), directly or indirectly, by helping to maintain water quality and providing wildlife habitat. To some people and cultures certain wetlands provide an important part of their economic base and/or contribute to their cultural heritage.

NR 1.95(3)(b)4. 4. ‘Scarcity of wetland type.’ Certain wetland types, e.g., calcareous fens, wild rice lakes, which are statewide or regionally scarce possess special resource significance. Scarcity or rareness depends on the frequency of occurrence of the type, the area of the type in existence prior to settlement, the historical conversion of the type and its resultant degree of destruction, and the amount of similar habitat in the present landscape of the region.

NR 1.95(3)(b)5. 5. ‘Aquatic study areas, sanctuaries and refuges.’ Through various local, state and federal actions, large areas of the nation’s wetlands have been designated and preserved by public agencies for scientific study, and the protection of aquatic and terrestrial habitats. Many public and private groups have also established sanctuaries and refuges in wetlands.

NR 1.95(3)(b)6. 6. ‘The ecosystem concept in a regional context.’ Wetlands that are sustainable, diverse and interspersed with healthy aquatic and terrestrial communities contribute to the overall ecosystem health. The previous sections suggest that wetlands may not only have important functions within their boundaries, but may also interact with ecosystems of the surrounding region. The potential impact of wetland modification may influence distant wetlands if they are structurally and functionally related in the region. Similarly, the functions and values of any wetland may be affected by other existing and potential water resource activities in the region. Therefore, consideration should be given to those impacts which are shown to be of regional concern.

NR 1.95(4) (4) Statement of policy.

NR 1.95(4)(a) (a) The natural resources board is concerned with the continuing reduction in the quantity and quality of natural wetlands in this state and is committed to reversing the loss of our state’s wetlands. A large percentage of Wisconsin’s wetlands have been altered or destroyed in the years since settlement. It is the policy of the natural resources board that wetlands shall be preserved, protected, restored and managed to maintain, enhance or restore their values. The natural resources board promotes, protects, restores, enhances and preserves the quantity, quality and diversity of Wisconsin’s wetlands as a critical component of ecosystems essential to the health and quality of life of our state’s diverse citizenry, plants, animals and landscapes. It is in the public interest that department decisions which lead to alteration of or effects on wetlands under its jurisdiction or control are based on the intent to preserve, protect, restore and manage them for the maintenance or enhancement of their values.

NR 1.95(4)(b) (b) “Wetland”, as defined in s. 23.32 (1), Stats., means an area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions. It is the intention of the natural resources board that where the term “wetland” appears in a rule promulgated by the department and the rule does not contain a specific definition, the definition of “wetland” in this paragraph shall apply.

NR 1.95(4)(c) (c) The department shall strengthen relationships with stakeholders through outreach and technical assistance and stewardship incentive programs.

NR 1.95(4)(c)1. 1. ‘Outreach and technical assistance.’ The department shall encourage public and private owners of wetlands to make sound decisions to use their land in a way that sustains both wetland and socio-economic benefits.

NR 1.95(4)(c)2. 2. ‘Partnerships.’ The department shall cooperate with appropriate governmental units, private groups and the public to further the protection and enhancement of wetlands to provide opportunities for education on wetland values and ecology. The department shall work directly with local officials and developers to encourage them to avoid wetland destruction or incorporate the wetland into their project planning and reduce the need for a permit.

NR 1.95(4)(c)3. 3. ‘Stewardship incentives.’ The department shall, in cooperation with other state and federal agencies, provide incentives and conservation programs for wetland owners that encourage ecological restoration of altered and degraded wetlands and reward the perpetual preservation of wetlands and associated upland areas.

NR 1.95(4)(d) (d) The department shall preserve, protect, restore and manage the state’s wetland communities to be sustainable, diverse and interspersed with healthy aquatic and terrestrial communities.

NR 1.95(4)(d)1. 1. ‘Ecosystem health and integrity.’ The department shall protect, restore and manage the state’s wetlands to contribute to ecosystem health. The department shall work with stakeholders to identify high quality wetlands taking into consideration ecosystem needs, physical and biological watershed processes, as well as social values, uses and perceptions.

NR 1.95(4)(d)2. 2. ‘Department management actions.’ The department shall select resource management techniques which maintain or improve wetland functions and values with no significant or irreversible adverse effects. Actions shall be limited to those specifically required to meet the objectives enumerated in sub. (2) (d).

NR 1.95(4)(d)3. 3. ‘Land acquisition and easements.’ The department’s land acquisition and community financial assistance land acquisition programs shall place special emphasis on obtaining wetlands that provide quality fish and wildlife habitat, particularly for threatened or endangered species; that significantly affect the maintenance or improvement of water quality; that have special value as scientific or natural areas; or that are imminently threatened with extensive alteration or destruction. Unique, exceptionally high quality or scarce wetland community types and associated aquatic and terrestrial communities will be held in perpetuity through acquisition of land or easements by federal, state, tribal and local government or not-for-profit conservation organizations for future generations.

NR 1.95(4)(d)4. 4. ‘Restoration.’ The department shall consider the full range of ecological concerns and meet multiple purposes in wetland restoration and enhancement projects. These projects shall help recapture previously drained or filled wetlands and result in an increase in wetland acreage and function. The department, with assistance from stakeholders, shall identify restoration sites in each watershed based on the potential to successfully restore important wetland functions and values, and the opportunity to restore a watershed’s ecological integrity.

NR 1.95(4)(d)5. 5. ‘Enhancement for specific functions.’ The department shall develop statewide plans and programs that allow wetlands to be managed and enhanced for specific functions.

NR 1.95(4)(e) (e) The department shall administer a comprehensive regulatory and enforcement program for protecting wetlands.

NR 1.95(4)(e)1. 1. ‘Regulation.’ The department shall seek to administer a comprehensive state wetland regulatory program that is simple, straightforward and reasonable, and make decisions in a predictable, timely and fair manner. The department’s wetland regulatory decisions shall be made in accordance with standards in ch. NR 103.

NR 1.95(4)(e)2. 2. ‘Enforcement.’ The department shall have an effective wetland enforcement program that discourages permit violations and illegal wetland fill activities. The department’s enforcement activities shall include steps to assure, to the fullest extent practicable, the restoration of wetlands which were unlawfully altered.

NR 1.95(4)(e)3. 3. ‘Compensatory mitigation.’ The department shall administer an easy-to-understand compensatory mitigation program available to permit applicants. The full range of wetland impacts shall be considered when planning development projects. This program shall recognize the need to avoid and minimize adverse wetland effects, to replace wetland functions, and to enable fair, protective and common sense regulatory decisions. The department’s wetland compensatory mitigation decisions shall be made in accordance with the procedures in ch. NR 103 and the standards in ch. NR 350.

NR 1.95(4)(e)4. 4. ‘Liaison activities.’ In its liaison activities with federal, tribal, local and other state agencies and in the absence of regulatory authority, the department shall strongly recommend avoidance of wetland areas and concur with their use or alteration only when necessary to minimize the overall environmental impacts of a proposal. In those cases, the recommended amount of wetland use or alteration shall be held to the minimum. The department shall encourage applicants to consider the full range of wetland impacts when planning development projects.

NR 1.95(4)(f) (f) The department shall develop and maintain an up-to-date inventory of the state’s wetland resources and track management actions.