Chapter NR 320
BRIDGES AND CULVERTS IN OR OVER NAVIGABLE WATERWAYS
NR 320.04 Bridge and culvert clearance over navigable waterway. NR 320.05 Bridge enforcement for municipal highway bridges. NR 320.06 Bridges and culverts. NR 320.07 Culvert area calculation, culvert sizing, and culvert length determination. Ch. NR 320 NoteNote: Chapter NR 320 was revised by emergency rule effective April 19, 2004; Chapter NR 320 was repealed and recreated by emergency rule effective August 24, 2004; Chapter NR 320 as it existed on April 30, 2005, was repealed and a new chapter NR 320 was created Register April 2005 No. 592, effective May 1, 2005. NR 320.01NR 320.01 Purpose. The purpose of this chapter is to establish reasonable procedures and limitations for exempt activities, general permits and individual permits for placement of bridges and culverts in or over navigable waterways as regulated under s. 30.123, 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 320.01 HistoryHistory: CR 04-084: cr. Register April 2005 No. 592, eff. 5-1-05. NR 320.02(1)(1) Bridges and culverts placement. This chapter applies to construction, placement and maintenance of bridges and culverts in or over navigable waterways as regulated under s. 30.123, Stats. Any person that intends to construct, place or maintain a bridge or culvert in or over any navigable waterway shall comply with all applicable provisions of this chapter and any permit issued under this chapter. NR 320.02 NoteNote: A permit that is granted under this chapter does not constitute review or authorization of floodplain effects. Where bridge or culvert activities occur in a mapped floodplain, permits will be required from the local municipality. The permittee shall assume all responsibility and liability for any direct or indirect damage caused or resulting from the presence of the bridge or culvert.
NR 320.02(2)(a)(a) Municipalities are not required to obtain a permit or approval pursuant to s. 30.10, 30.12 or 31.23, Stats., prior to constructing a municipal highway bridge. However, municipal highway bridges cannot obstruct navigation. All municipal highway bridges shall be constructed or reconstructed in accordance with standards developed under s. 84.01, Stats. NR 320.02 NoteNote: Municipal highway bridges must continue to meet local floodplain zoning requirements.
NR 320.02(3)(3) State highway bridges. Intrastate and interstate bridges constructed pursuant to ss. 84.11 and 84.12, Stats., are subject to the control and supervision over the navigable waters of the state conferred by law upon the department. State highway bridges constructed pursuant to ss. 84.11 and 84.12, Stats., will be reviewed and approved by the department in accordance with interdepartmental liaison procedures established by the department and the department of transportation for the purpose of minimizing adverse environmental impacts under the procedures established in s. 30.2022, Stats. NR 320.02 HistoryHistory: CR 04-084: cr. Register April 2005 No. 592, eff. 5-1-05. NR 320.03(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 320.03 NoteNote: “Area of special natural resource interest” means any of the following:
NR 320.03 Note(a) A state natural area designated or dedicated under ss. 23.27 to 23.29, Stats. NR 320.03 Note(b) A surface water identified as a trout stream by the department under s. NR 1.02(7). NR 320.03 Note(bm) A surface water identified as an outstanding or exceptional resource water under s. 281.15, Stats. NR 320.03 Note(c) An area that possesses significant scientific value, as identified by the department in s. NR 1.05. NR 320.03 NoteInformation and lists can be obtained by contacting the department, or found on the department’s website at http://dnr.wi.gov, under the topic “Waterway and Wetland Permits”. NR 320.03(2)(2) “Backwater” means the increase in the water surface elevation that results from a bridge and any associated road fills under average water flow conditions. NR 320.03(3)(3) “Bridge” means any private or public structure except municipal highway bridges constructed in or over a navigable waterway to provide a walkway or roadway for pedestrians, animals or vehicles, and includes pipe arches and culverts. NR 320.03(4)(4) “Channel” means a natural or artificial water course with defined bed and banks to confine and conduct the normal flow of water. NR 320.03(5)(5) “Clearance” means the vertical distance between the inside top of a culvert or the bottom of the lowest member of the bridge span and the ordinary high water mark of the waterway. NR 320.03(6)(6) “Clear span bridge” means a continuous span of which no portion of the bridge piling or other supporting structure may be located within the channel except for abutment protection. NR 320.03(7)(7) “Department” means the department of natural resources. NR 320.03(9)(9) “Maintain” means to repair, replace, own or possess all or a portion of a structure. NR 320.03(10)(10) “Municipal highway bridge” means any city, town, village or county owned structure built in or over a navigable waterway for public highway purposes. NR 320.03(11)(11) “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 320.03 NoteNote: 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 320.03(12)(12) “Ordinary high water mark” or “OHWM” 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 recognized characteristic. NR 320.03(13)(13) “Perched culvert” means a culvert where the inlet or outlet elevation is higher than the streambed elevation, thereby effectively reducing or eliminating fish migration and fish passage. NR 320.03(14)(14) “Professionally engineered” means designed by a person registered as a professional engineer under s. 443.04, Stats., and ch. A-E 4. NR 320.03(15)(15) “Replacement” means a degree of structural changes to a bridge or culvert by which some or all of the bridge or culvert is being removed or recreated. NR 320.03(16)(16) “Riprap” means a layer or layers of rock, including filter material, placed on the bed and bank of a navigable waterway to prevent erosion, scour or sloughing of the existing bank. NR 320.03(17)(17) “Temporary in-stream crossing” means any private or public structure placed within the channel of a navigable stream for 160 days or less to provide a walkway or roadway for pedestrians, animals or vehicles. NR 320.04NR 320.04 Bridge and culvert clearance over navigable waterway. NR 320.04(1)(1) New bridges or culverts or replacements of existing bridges and culverts spanning navigable waterways, shall, except as provided in this section, maintain a clearance of not less than 5 feet. NR 320.04(2)(2) The department may require clearance of more than 5 feet when the waterway has been or is likely to be navigated when it is above its ordinary high water mark elevation or if it is used by watercraft or snowmobiles requiring greater clearance. NR 320.04(3)(3) The department may allow less than 5 feet of navigation clearance when all of the following apply: NR 320.04(3)(a)(a) The waterway is known to have little or no navigation or snowmobile use. NR 320.04(3)(b)(b) The waterway is not anticipated to have navigational use by other than lightweight craft. NR 320.04(3)(c)(c) The owner provides a portage over or around the bridge or culvert. NR 320.04(3)(d)(d) The reduced clearance would not be detrimental to the public interest. NR 320.04 HistoryHistory: CR 04-084: cr. Register April 2005 No. 592, eff. 5-1-05; CR 06-038: r. (4) and (5) Register January 2007 No. 613, eff. 2-1-07. NR 320.05NR 320.05 Bridge enforcement for municipal highway bridges. Upon receipt of written complaint, the department shall investigate the construction or maintenance of any municipal highway bridge. In evaluating complaints, the department shall apply the principles in Capt. Soma Boat Line, Inc. v. City of Wisconsin Dells (56 Wis. 2d 838 NR 320.05(1973)(1973)) to determine what course of action it will follow in the case. The department shall apply the clearance standards in this chapter in determining whether a municipal highway bridge constitutes an obstruction to navigation. NR 320.05 HistoryHistory: CR 04-084: cr. Register April 2005 No. 592, eff. 5-1-05. NR 320.06(1)(b)(b) Applicable activities. A replacement of a culvert that meets all the standards in par. (c) shall be exempt under s. 30.123 (6) (e), Stats. A replacement of a previously permitted culvert that meets all the standards in par. (d) shall be exempt under s. 30.123 (6) (d), Stats. NR 320.06 NoteNote: Section 30.123 (6) (e), Stats., was repealed by 2015 Wis. Act 55. NR 320.06 NoteNote: 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 320.06(1)(c)(c) Standards to replace a culvert that does not exceed 24-inches in diameter. NR 320.06(1)(c)1.1. The culvert may not be located in an area of special natural resource interest, in a public rights feature as described in s. NR 1.06, or in navigable tributaries to surface waters identified as trout streams by the department in s. NR 1.02 (7). NR 320.06(1)(c)3.3. For a culvert replacement to be considered exempt, the culvert must be in place or documented to have been in place in the past 3 years. NR 320.06 NoteNote: The historical presence of a culvert that is no longer in place or was not in place in the past 3 years does not constitute a replacement.
NR 320.06(1)(c)4.4. The replacement culvert shall be an in-kind replacement of a single culvert of the same cross-sectional area and of equal or shorter length of culvert that is being replaced. NR 320.06(1)(c)5.5. The required culvert area may not exceed 3 square feet as calculated in s. NR 320.07 (1), to ensure that a 24-inch culvert adequately passes stream flow and is not likely to create a ponded condition upstream. NR 320.06(1)(c)6.6. Culvert replacement and installation shall mimic the natural streambed and gradient above and below the culvert channel. Perched culverts are not in compliance with this condition.
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