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.
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.
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.
The department, pursuant to ss. 23.09
, 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.
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.
(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.
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.
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.
A particular wetland may function to maintain the hydrologic characteristics, and thereby the physical and chemical integrity of an entire aquatic ecosystem.
Groundwater may discharge to a wetland, recharge from a wetland to another area, evaporate from and/or flow through a wetland.
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.
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.
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.
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.
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.
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.
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.
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.
“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.
The department shall strengthen relationships with stakeholders through outreach and technical assistance and stewardship incentive programs.
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.
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.
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.
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.
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.
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)
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.
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.
5. `Enhancement for specific functions'.
The department shall develop statewide plans and programs that allow wetlands to be managed and enhanced for specific functions.
The department shall administer a comprehensive regulatory and enforcement program for protecting wetlands.
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
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.
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
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.
The department shall develop and maintain an up-to-date inventory of the state's wetland resources and track management actions.
The department shall make use of technological advances to ensure that staff and the public have the most current wetland information that can be easily integrated with other environmental and geographical databases.
2. `Inventory and tracking'.
The department shall maintain an inventory of the state's wetland resources and make it readily available to the public and staff for a full range of planning, policy, management and regulatory applications. The department shall develop and maintain a unified system to track and monitor restoration, preservation, management and regulatory actions.
NR 1.95 History
Cr. Register, March, 1978, No. 267
, eff. 4-1-78; r. and recr. Register, January, 1980, No. 289
, eff. 2-1-80; am. (4) (c) and cr. (4) (d), Register, June, 1984, No. 342
, eff. 7-1-84; correction in (2) (b) and (d) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1999, No. 525
; CR 00-163
: am. (1), (2) (intro.), (3) (b) 2. (intro.), 2. c., 4., and 6., r. and recr. (4) and r. (5) and (6), Register July 2001, No. 547
Public and private source funding of research. NR 1.98(1)(a)(a)
It is the policy of the department of natural resources to seek the best, most current scientific information available on which to base its management and regulatory decisions. In keeping with this policy, the department operates a research program, through the bureau of research, which conducts and oversees research in natural resource management and environmental protection.
It is the policy and statutory obligation of the department to make management and regulatory decisions to protect and enhance the natural resources of Wisconsin and the public's interests in and rights to those natural resources.
It is the policy and statutory obligation of the department to conduct its actions in an open and publicly accessible manner to facilitate public involvement, understanding and acceptance, and in accordance with the public records and open meeting laws of Wisconsin.
It is the policy of the department to accept donations of land, money, time, equipment and human effort to support department programs under the authority provided in s. 23.09 (2) (o)
, Stats.,“to accept and administer gifts, grants, bequests, and devises."
To assure that the authority provided in s. 23.09 (2) (k)
, Stats., is exercised in a manner consistent with the department's mission and policies and with applicable statutory obligations and ethical requirements, the department finds it appropriate to adopt these guidelines for the receipt of such public or private source funding.
“Public or private source" means any organization, entity or individual outside of the department of natural resources, and includes public and private sector entities which are regulated, either directly or indirectly, by the department. This term does not include the department of natural resources, the Wisconsin state legislature, or the agencies of the federal government.
“Public or private source funds" or “public or private source funding" or “funds from public or private sources" means anything of value, including money, time, land, equipment or human effort, which is offered to the department to support, in whole or in part, research efforts.
“Anonymous funds" are those from an unidentified source. This term does not include funds from a private, non-profit foundation when the original source is unidentified.
Criteria for consideration of public or private source funding. NR 1.98(4)(a)
The natural resources board may accept funds from public or private sources to support research needs in the department. These public or private source funds may be specifically designated by the source to support a particular research project or subject area for research, or may be undesignated in which case the funds may be applied to research needs on a priority basis as determined by the department.
The decision to accept public or private source funding shall be made by the natural resources board in public session with opportunity for public scrutiny and input in the following manner:
Public or private source funds which have a value of $5000 or more shall be accepted only by the natural resources board.
Public or private source funds which have a value of less than $5000 may be accepted by the secretary without the approval of the natural resources board. The secretary may bring any proposal with a value of less than $5000 to the natural resources board for action if he or she deems it appropriate to do so. The provisions of pars. (c)
apply to any funds accepted by the secretary.
Before accepting an offer of public or private source funding, the natural resources board shall ensure that all of the following conditions have been met:
The resource project to be supported is a high priority for the department and merits the expenditure of department time and resources.
The department, not the public or private source, will control the design and conduct of the study, the interpretation of the data and the write-up of the results. The department will be fully responsible for any decisions as to how, if at all, the research results will be used by the department.
No assurance has been given by the department to the public or private source about the content of the research results nor the regulatory application of those results.
The public or private source has not imposed any conditions on the offer of funds which would control the department's conduct of the research project or the research program, or commit the department to any particular action, including any particular exercise of discretion in its regulatory or management decisions or programs.
All research shall be conducted in a manner consistent with the requirements of the public records law.
The department has not agreed to assume any liability on behalf of the public or private source which the department would not otherwise be responsible for in the conduct of the research.
The natural resources board may impose such other restrictions on the receipt of funds from a public or private source as it deems appropriate to comply with the intent of this policy. Such restrictions may include, but are not limited to, restrictions on the amount of funds which shall be accepted from a given public or private source in a given period of time.
Notwithstanding satisfaction of all the conditions in par. (c)
, the natural resources board may refuse the offer of public or private source funding for other reasons deemed pertinent by the board.
NR 1.98 Note
Note: For example, if the board believes that the fact of the public or private source funding will be so controversial as to render the research results challengeable it may refuse to accept the public or private source funding.
The department shall keep records of all such public or private source funds so that they are available for audit at any time by the natural resources board or the public. The department shall prepare an annual report of all such funds. The report shall specify, at a minimum, the source of the funds, the total project cost, the amount per source if multiple sources of funds, the entity which conducted the research, and a summary of the project. The department may include other information which it believes will facilitate full public disclosure.
The department shall, to the extent possible, seek the advice and opinions of qualified reviewers in the design and implementation of its research projects.
Solicitation of public or private source funds. NR 1.98(5)(a)
The department may solicit funds from public or private sources to lend support to research efforts in the department.
The secretary shall designate a person or persons to be responsible for such solicitation. Such person may not hold a position in any of the department's regulatory programs.
Any funds solicited from public or private sources are subject to the provisions of sub. (4)
Funds from anonymous sources.
Except for amounts deposited in gift boxes at state parks, the department may not accept anonymous funds.
NR 1.98 History
Cr. Register, March, 1990, No. 411
, eff. 4-1-90.
Donation of live fish or fish eggs from a private fish farm.
The department may accept gifts of live fish or fish eggs from a private fish farm located within Wisconsin if all of the following apply:
The fish or fish eggs will be stocked into waters of the state accessible to the public for which stocking needs have not been met.
The fish or fish eggs of the species to be stocked are of a compatible genetic strain to any existing native population of that species in the waters to be stocked.
The fish or fish eggs are covered under a valid fish health certificate issued under s. ATCP 10.65
NR 1.985 History
History: CR 19-007
: cr. Register January 2020 No. 769
, eff. 2-1-20.