NR 328.03 Note
Note: The maximum toe protection structure elevation is equal to the ordinary high water mark plus one-half of the storm-wave height.
NR 328.03 Note
Note: The toe protection relies on materials such as stone, armor units, fiber rolls or wattles to protect the base of the bank. Above the toe protection, the remainder of the bank is revegetated by installing a shoreland buffer or with brush layering, brush mattresses, fiber rolls, live stakes, vegetated geogrid, rolled erosion control products or wattles. Plant materials may also be incorporated as part of the shore protection design below the ordinary high water mark as well.
NR 328.03(12)
(12) “Low energy site" means a site where the storm-wave height calculated under s.
NR 328.08 (1) is less than 1.0 foot, or where the erosion intensity score calculated under s.
NR 328.08 (2) has a score of 47 or less.
NR 328.03(14)
(14) “Maximum toe elevation" means the elevation of the bank toe mark plus the storm-wave height estimated under s.
NR 328.08 (1).
NR 328.03(15)
(15) “Moderate energy site" means a site where the storm-wave height calculated under s.
NR 328.08 (1) is greater than or equal to 1.0 foot but less than 2.3 feet, or where the erosion intensity score calculated under s.
NR 328.08 (2) has a score of 48 to 67.
NR 328.03 Note
Note: Common law doctrine of avulsion secures to waterfront property owners the ability to reclaim land suddenly lost to erosion (AG ex rel Becker v. Bay Boom Wild River and Fur Company, 172 Wis. 363 1920.)
NR 328.03(16)
(16) “Offshore" means located a minimum of 10 horizontal feet waterward from the ordinary high water mark.
NR 328.03(17)
(17) “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 328.03(18)
(18) “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 328.03 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 328.03(19)
(19) “Permanent breakwater" means a structure constructed of stone, rock, concrete or other non-degradable materials and located offshore for the purpose of diminishing the force of the waves and protecting the shoreline.
NR 328.03 Note
Note: These structures can be designed to provide fish and wildlife habitat in addition to erosion control by incorporating vegetation on the breakwater and in the nearshore zone. Examples of permanent breakwaters include stone dikes, barrier islands, stone islands and submerged offshore shoals.
NR 328.03(20)
(20) “Replacement" means a degree of structural changes to the shore erosion control structure by which some or all of the structure is being removed and recreated.
NR 328.03 Note
Note: For seawalls, any replacement of a portion of the seawall down to or at the footing of the structure is considered replacement. For riprap, replacement of filter fabric or replacement of the base substrate is considered replacement.
NR 328.03(21)
(21) “Riparian" means an owner of land abutting a navigable waterway.
NR 328.03(22)
(22) “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 328.03(23)
(23) “Seawall" means an upright structure that is steeper than 1.5 feet vertical to one foot horizontal and that is installed parallel to the shore to prevent the sliding or slumping of the land and to protect the adjacent upland from wave action.
NR 328.03 Note
Note: Seawalls are commonly constructed of timber, rock (including gabions), concrete, steel or aluminum sheet piling, and may incorporate biological components.
NR 328.03(24)
(24) “Shore erosion control structure" means a structure with defined shape, size, form and utility constructed and maintained for the purpose of protecting a shoreline from erosion. Shore erosion control structures include vegetated armoring and hard armoring.
NR 328.03(26)
(26) “Temporary breakwater" means an offshore structure consisting of biological components, such as jute, fiber rolls, willow stakes, branchbox breakwater or a structure consisting of inert components that will be removed after a set period of time.
NR 328.03 Note
Note: Temporary breakwaters are placed for the purpose of providing an area of quiescent water, when new erosion protection designs and shoreland plant installations are becoming established. Biological temporary breakwater designs degrade naturally and examples include branchbox breakwaters and fiber rolls.
NR 328.03(27)
(27) “Toe" means the most waterward edge of a shore erosion control structure.
NR 328.03(28)
(28) “Vegetated armoring" means a shore erosion control structure that combines biological and inert materials, and includes 3 types: integrated toe protection, vegetated-riprap and vegetated-geogrids.
NR 328.03(29)
(29) “Wave height" means the vertical distance between the wave crest and wave trough.
NR 328.03(30)
(30) “Wetland" 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.
NR 328.03 History
History: CR 02-099: cr.
Register April 2005 No. 592, eff. 5-1-05;
CR 09-123: am. (9) and (15)
Register July 2010 No. 655, eff. 8-1-10.
NR 328.04(1)(1)
Procedures. Exemptions shall be processed according to the procedures in ch.
NR 300.
NR 328.04(2)
(2)
Applicable activities. A biological shore erosion control structure that meets all the standards in subs.
(3) and
(4) shall be exempt under s.
30.12 (1g) (k), Stats. Riprap repair that meets all the standards in subs.
(3) and
(5) shall be exempt under s.
30.12 (1g) (j), Stats. Riprap replacement that meets all the standards in subs.
(3) and
(6) shall be exempt under s.
30.12 (1g) (i), Stats.
NR 328.04 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 328.04(3)(a)(a) The structure may not be located in an area of special natural resource interest.
NR 328.04(3)(b)
(b) The structure may be placed and maintained only by a riparian.
NR 328.04(3)(c)
(c) The project will not result in removal of greater than 20% of the aerial coverage of natural bank vegetation, emergent vegetation or floating vegetation, not including the area covered by the footprint of the riprap, or any access corridors necessary for the placement of the riprap.
NR 328.04(3)(d)
(d) Any grading, excavation and land disturbance shall be confined to the minimum area necessary for the construction and may not exceed 10,000 square feet.
NR 328.04(3)(e)
(e) 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 328.04(3)(f)
(f) 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 328.04(3)(g)
(g) All equipment used for the project shall be designed and properly sized to minimize the amount of sediment that can escape into the water.
NR 328.04(3)(h)
(h) No waterward extension of the property is permitted other than what is reasonably necessary to conduct the project and protect the existing bank. No soil or similar fill material may be placed in a wetland or below the ordinary high water mark of any navigable waterway.
NR 328.04(3)(i)
(i) Dredging under s.
30.20 (1g) (b) 1., Stats., is not allowed for the placement or maintenance of any shore erosion control structure under this section.
NR 328.04(3)(j)
(j) 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.
1. to
3. or
8. Decontamination shall include either subd.
4.,
5.,
6.,
7., or
8. 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 328.04(3)(j)1.
1. Inspect all equipment used for constructing, operating, or maintaining the project and remove all plants and animals, and other mud, debris, etc.
NR 328.04 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 328.04(3)(j)3.
3. 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 328.04(3)(j)4.
4. Wash equipment at a temperature of not less than 212 degrees Fahrenheit water (steam clean).
NR 328.04(3)(j)5.
5. Wash equipment with soap and water or high pressure water of not less than 2000 pounds per square inch.
NR 328.04 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 328.04(3)(j)7.
7. 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 328.04 Note
Note: Chlorine refers to either household bleach solution (5.25% chlorine) or granular chlorine (70% calcium hypochlorite).
NR 328.04(3)(j)8.
8. 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 328.04 Note
Note: See the department's website at
http://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 328.04(4)
(4)
Biological shore erosion control. Biological shore erosion control structures, including but not limited to native vegetation, fiber rolls, fiber mats, live stakes, brush mattresses, branchbox breakwaters, temporary breakwaters, may be placed subject to the requirements and limitations of sub.
(3) and this subsection:
NR 328.04(4)(a)
(a) Any wave breaks or wave barriers shall be completely removed within 2 years of the installation date. If wave barriers are used, they shall be located within the 3-foot water depth contour or less, marked with reflectors, and may not create an obstruction to navigation.
NR 328.04(4)(b)
(b) Willow wattles, willow posts, brush mattresses, brush layering, fiber roll breakwaters, plant carpets, root wads, and other natural materials shall be installed by hand.
NR 328.04(4)(c)
(c) Vegetation shall be plant species which are native to the area of Wisconsin where the project is located. Vegetative treatments shall be installed according to Natural Resources Conservation Service Conservation Practice Standard Code 580 (Streambank and Shoreline Protection) or the Natural Resources Conservation Service Engineering Field Handbook (chapter 16).
NR 328.04(4)(d)
(d) Fiber rolls shall be secured using can and duckbill anchors or hardwood stakes. Spacing between the duckbill anchors shall be 6 feet or less. Spacing between the hardwood stakes shall be 4 feet or less.
NR 328.04(4)(e)
(e) A deposit of sand, gravel or stone under s.
30.12 (1g) (a), Stats., may not be associated with the biological erosion control structure.
NR 328.04(5)
(5)
Riprap repair. Existing riprap may be repaired subject to the requirements and limitations of sub.
(3) and this subsection:
NR 328.04(5)(a)
(a) Riprap repair may not exceed 300 linear feet of shoreline located on an inland lake or flowage.
NR 328.04(5)(b)
(b) Riprap repair may only involve placement of additional rock or redistribution of existing rock within the footprint of the existing riprap.
NR 328.04(5)(c)
(c) Addition of rock may only occur no more than once every 5 years.
NR 328.04(5)(d)
(d) A deposit of sand, gravel or stone under s.
30.12 (1g) (a), Stats.,
other than the riprap itself, may be not associated with the riprap repair.
NR 328.04(5)(e)
(e) Except as provided in pars.
(a),
(b),
(c) and
(d), the riprap repair shall meet the conditions of the original permit.
NR 328.04(5)(f)
(f) Where riprap was not previously permitted, the riprap repair shall meet the following conditions in addition to the requirements of pars.
(a) to
(d):
NR 328.04(5)(f)2.
2. Repair shall be located along moderate or high energy shorelines, based on the calculation of storm wave height calculated in s.
NR 328.08 (1).
NR 328.04(5)(f)3.
3. Riprap may not be placed at an elevation higher than the ordinary high water mark plus the storm-wave height as calculated in s.
NR 328.08. For waters subject to subch.
II, riprap may not be placed at an elevation higher than the ordinary high water mark plus 1.5 times the storm-wave height calculated in s.
NR 328.08.
NR 328.04 Note
Note: The listed waters in subch. II are typified by following conditions – impounded; 2500 acres and larger; extensive water level fluctuation; high shoreline recession rates; historic loss of shoreline vegetation.
NR 328.04(5)(f)4.
4. The toe of the riprap may not extend more than 6 feet waterward of the ordinary high water mark.
NR 328.04(5)(f)5.
5. Riprap shall be clean fieldstone or quarry stone 6 to 24 inches in diameter.
NR 328.04(6)
(6)
Riprap replacement. Replacement of existing riprap is subject to the requirements and limitations of sub.
(3) and this subsection:
NR 328.04(6)(a)
(a) Riprap replacement may not exceed 100 linear feet of shoreline located on an inland lake or flowage.
NR 328.04(6)(b)
(b) Riprap replacement may occur no more than once every 5 years.
NR 328.04(6)(c)
(c) A deposit of sand, gravel or stone under s.
30.12 (1g) (a), Stats., may be associated with the riprap replacement provided the deposit is limited to the area immediately underneath the riprap and is less than 2 cubic yards,
not including the riprap itself or clean washed gravel provided under par.
(e) 7. NR 328.04(6)(d)
(d) Except as provided in pars.
(a),
(b) and
(c), the riprap replacement shall meet the conditions of the original permit.
NR 328.04(6)(e)
(e) Where the riprap was not previously permitted, the riprap replacement shall meet the following conditions in addition to the requirements of pars.
(a) to
(c):
NR 328.04(6)(e)2.
2. Replacement shall be located along moderate or high energy shorelines, based on the calculation of storm wave height calculated in s.
NR 328.08 (1).
NR 328.04(6)(e)3.
3. Riprap may not be placed at an elevation higher than the ordinary high water mark plus the storm-wave height as calculated in s.
NR 328.08 (1). For waters subject to subch.
II, riprap may not be placed at an elevation higher than the ordinary high water mark plus 1.5 times the storm-wave height calculated in s.
NR 328.08.
NR 328.04 Note
Note: The listed waters in subch. II are typified by following conditions – impounded; 2500 acres and larger; extensive water level fluctuation; high shoreline recession rates; historic loss of shoreline vegetation.
NR 328.04(6)(e)4.
4. The toe of the riprap may not extend more than 6 feet waterward of the ordinary high water mark.
NR 328.04(6)(e)5.
5. Riprap shall be clean fieldstone or quarry stone 6 to 24 inches in diameter.
NR 328.04(6)(e)6.
6. The final riprap slope may not exceed (be steeper than) 2 feet horizontal to one foot vertical.
NR 328.04(6)(e)7.
7. Filter cloth or clean-washed gravel shall be used as a filter layer under the riprap to extend the life of the structure, improve effectiveness and prevent soil erosion behind the riprap.
