NR 328.08 Note
Note: The citation for Young (1997) is as follows: Young, I.R. 1997. The growth rate of finite depth wind-generated waves. Coastal Engineering, Vol. 32, pp. 181-195. The citation for Young and Verhagen (1996) is as follows: Young, I.R. and L.A. Verhagen. 1996. The growth of fetch limited waves in finite water depth. Coastal Engineering, Vol. 29, pp. 47-78.
NR 328.08 Note
Note: Statewide storm wind speeds are estimated from Naber Knox, P. 1996. Wind Atlas of Wisconsin. Wisconsin Geological and Natural History Survey, Bulletin No. 94.
NR 328.08(2)
(2)
Calculation of erosion intensity. Where an applicant or the department believes that, as a result of site conditions, storm-wave height as calculated in sub.
(1) may inaccurately predict the degree of erosion, the erosion intensity score may be calculated to determine erosion. The department shall provide applicants with worksheets and internet-based computer software for the purpose of calculating erosion intensity. When the department or applicants assess erosion at the shore protection site, they shall apply methods outlined in Table 1 to calculate an erosion intensity score. Wherever EI and storm-wave height result in different energy categories, the site shall be placed in the category as determined by EI.
NR 328.08(3)
(3)
Bank edge recession measurements. Methods of measuring bank edge recession shall include all of the following: establishment of a physical measurement reference line between at least 2 headstakes; date-imbedded photographs showing the initial installation of the reference line and headstakes; reference distance measures to the bank lip shall be reported on department supplied forms; and time between separate measurements shall equal or exceed 3 months during the open-water season.
Table 1
Erosion Intensity (Ei) Score Worksheet
Applicants and department staff shall use this worksheet to calculate erosion intensity pursuant to s.
NR 328.08 (2). -
See PDF for table 
Note: Table 1 is adapted from Knutson, P. L., H. H. Allen, and J. W. Webb, 1990. “Guidelines for Vegetative Erosion Control on Wave-Impacted Coastal Dredged Material Sites, “Dredging Operations Technical Support Program Technical Report D-90-13,U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS 39180, 35 pp.
1 Average fetch: The following diagram describes the calculation of average fetch.
2 Bank height: The following diagram describes the features of the bank for the purpose of accurately measuring bank height
3 Aquatic vegetation: Dense or abundant means that on average 50-100% of the bottom is visually obstructed by plants during the growing season, defined by the dates June 1 through September 15. Scattered or patchy means that on average 1-49% of the bottom is visually obstructed by plants during the growing season, defined by the dates June 1 through September 15. Absent means that on average < 1% of the bottom is visually obstructed by plants during the growing season, defined by the dates June 1 through September 15.
4 Shoreline Orientation: The following lake map shows an example of accurately determining shoreline orientation
5Boating: A thoroughfare is identified as physical narrowing of the waterbody that by its nature intensifies boating activity near the shore. Thoroughfares which are 250 yards or wider are not scored 12 points, unless the depth contours of the thoroughfare constricts boating activity in close proximity to one shore, and the traffic is intensive. Intensive traffic is defined by a location where at least 50% of the public boating access available must pass through the thoroughfare to reach the open water of the lake, provided the waterway has a total of more than 60 car-trailer units. Limited traffic is defined by a location where at least 30% of the public boating access available must pass through the thoroughfare to reach the open water of the lake, provided the waterway has a total of more than 40 car-trailer units.
NR 328.08 History
History: CR 02-099: cr.
Register April 2005 No. 592, eff. 5-1-05.
NR 328.09(1)(1)
Noncompliance with the provisions of ss.
30.12,
30.20 and
30.206, Stats., this chapter, or any conditions of an exemption, general permit or individual permit issued by the department, constitutes a violation and may result in a forfeiture, fine or imprisonment. The department may seek abatement under s.
30.294, Stats., for any activity in violation of ss.
30.12,
30.20 and
30.206, Stats.
NR 328.09(2)
(2) If the activity may be authorized by a general permit under s.
30.206, Stats., failure of an applicant to follow the procedural requirements may not, by itself, result in abatement of the activity.
NR 328.09(3)
(3) When an after-the-fact permit application has been filed with the department, the department shall follow the procedures in ch.
NR 300 for violations.
NR 328.09(4)
(4) Any violation of these rules shall be treated as a violation of the statutes they interpret or are promulgated under.
NR 328.09(5)
(5) No person may place a shore erosion control structure in a navigable waterway if the activity is not eligible for an exemption, authorized by a general permit or individual permit issued under this chapter, or otherwise authorized under this chapter.
NR 328.09 History
History: CR 02-099: cr.
Register April 2005 No. 592, eff. 5-1-05;
CR 22-013: am. (3) Register June 2023 No. 810, eff. 7-1-23. NR 328.20
NR 328.20 Purpose. The purpose of this subchapter is to establish when deposits of material constitute structures for the purpose of controlling shore erosion and to set criteria for determining when structures will be authorized under s.
30.12, Stats.
NR 328.20 History
History: CR 01-103: cr.
Register June 2002 No. 558, eff. 7-1-02.
NR 328.21(1)(1)
Eligible waterways. Permits for breakwaters may be issued for placement in the following water bodies: Castle Rock and Petenwell flowages, Adams and Juneau counties; Lake Koshkonong, Dane, Jefferson, and Rock counties; Beaver Dam lake, Fox lake, and Lake Sinissippi, Dodge county; Lake Puckaway, Green Lake county; Lake Nokomis – Rice River reservoir, Lincoln and Oneida counties; Big Eau Pleine reservoir, Marathon county; Lake DuBay, Marathon and Portage counties; Rainbow and Willow flowages, Oneida county; Lake Poygan, Winnebago and Waushara counties; Lake Winneconne and Lake Buttes des Morts, Winnebago county; Lake Winnebago, Calumet, Fond du Lac, and Winnebago counties; and impoundments of the Mississippi river.
NR 328.21 Note
Note: The listed waters are generally typified by the following conditions – artificially impounded; 2500 acres and larger; extensive water level fluctuation; high rate of wetland/shoreline loss from erosion; and historic loss of shoreline vegetation.
NR 328.21(2)(a)(a) Permits for breakwaters may be issued to municipalities and similar public entities, including but not limited to, state and federal government, inland lake protection and rehabilitation districts or similar special purpose units of government and public utilities. Owners of riparian upland adjacent to, or flowed lands underlying, the structures shall be co-applicants if the municipality or public utility is not the riparian owner.
NR 328.21(2)(b)
(b) As part of the permit application, a public entity shall provide information to demonstrate to the satisfaction of the department that the public entity has all of the following:
NR 328.21(2)(b)1.
1. Statutorily assigned duties, authorities or requirements that may reasonably be construed to include control of shore erosion and protection of aquatic habitat.
NR 328.21(2)(b)2.
2. A system of governance that allows participation in decision making by a range of public interests.
NR 328.21(2)(b)3.
3. Institutional permanence of a duration similar to the life of the structure.
NR 328.21 History
History: CR 01-103: cr.
Register June 2002 No. 558, eff. 7-1-02.
NR 328.22
NR 328.22 Definitions. As used in this subchapter:
NR 328.22(1)
(1) “Breakwater" means the placement of stone, concrete or similar inert material 10 or more horizontal feet offshore, generally parallel to the shoreline for the purpose of controlling shore erosion and preserving or restoring aquatic habitat. Breakwater designs may include, but are not limited, to stone dikes, stone islands, barrier islands and submerged offshore shoals.
NR 328.22(2)
(2) “Comprehensive plan" means a plan that includes data on water resources, including public rights and interests in navigable waters; data on existing and potential uses of the water body and any use impairments; alternatives and recommended actions to protect or restore water resources or allocate uses of the water body.
NR 328.22(3)
(3) “Department" means the department of natural resources.
NR 328.22(4)
(4) “Municipality" means any town, village, city or county in this state.
NR 328.22(5)
(5) “Structure" means anything man-made, having shape, form and utility either permanently or temporarily attached to or extending above the ground or lakebed.
NR 328.22 History
History: CR 01-103: cr.
Register June 2002 No. 558, eff. 7-1-02.
NR 328.23
NR 328.23 Standards. Breakwaters may be authorized where all of the following apply:
NR 328.23(1)
(1) They are determined by the department to be the best management practice to control shore erosion and preserve or restore aquatic habitat.
NR 328.23(2)
(2) The structure be designed by a licensed professional engineer to be stable under stated maximum water level and wave conditions in order to avoid a failed structure that quickly becomes a hazard to users of the waters.
NR 328.23(3)
(3) The practice is specifically recommended for the purpose specified in sub.
(1) in a comprehensive plan approved by the department for management of a specific water body and its watershed.
NR 328.23(5)
(5) The department has complied with the notice and hearing procedures in s.
30.02 (3) and (4), Stats.
NR 328.23 History
History: CR 01-103: cr.
Register June 2002 No. 558, eff. 7-1-02.
NR 328.24
NR 328.24 Conditions of permits. In addition to any conditions deemed necessary to protect public rights and interests in navigable waters under s.
30.12, Stats., any authorization issued by the department under this subchapter shall contain the following conditions:
NR 328.24(1)
(1) The structure shall remain under public ownership or control. Public ownership and control shall be established by documentation of at least one of the following as part of the permit application:
NR 328.24(1)(a)
(a) Fee title ownership of the structure by a municipality or public entity.
NR 328.24(1)(b)
(b) Lease with a term of 25 years or more of the structure to a municipality or public entity.
NR 328.24(1)(c)
(c) Conservation easement on the structure held by a municipality or public entity that includes the rights to construct and maintain the structure, right of public access to the structure.
NR 328.24(1)(d)
(d) Title to, lease of, or conservation easement securing necessary rights to use and management of the structure and the area to be protected from wave energy.
NR 328.24(2)
(2) No ancillary structures or facilities, other than scientific measuring devices and navigational markers, shall be located on or attached to the breakwater.
NR 328.24 History
History: CR 01-103: cr.
Register June 2002 No. 558, eff. 7-1-02.
NR 328.31(1)(1)
The purpose of this subchapter is to establish reasonable procedures and limitations for general permits and individual permits for placement of shore erosion control structures in rivers and streams as regulated under s.
30.12, 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 328.31(2)
(2) The standards for general permits and individual permits in this chapter balance the reasonable right of riparians to control shore erosion under Wisconsin law with the public rights to navigation, recreation, fish and wildlife habitat, water quality and natural scenic beauty in navigable waters. (Doemel v. Jantz, 180 Wis. 225, 193 N.W., 393 (1923)).
NR 328.31(3)
(3) The standard for general permits recognizes that stream channels naturally move back and forth across their floodplains as the energy of water current is dissipated against the stream banks. Watershed land cover, reflecting rainfall infiltration and soil type, predicts the nature of in-stream habitat features as well as the extent of stream channel movement.
NR 328.31(4)
(4) This subchapter establishes differing choices of the types of general permits available based on ecoregion and land-use principles. Streams in predominantly forested watersheds have a high percent of natural shore vegetation, including wetlands and large woody cover. Streams of the Northern Lakes and Forests and the North Central Hardwood Ecoregions are environmentally healthy in comparison to other ecoregions that contain more agricultural and urban land use. Streams in predominantly forested watersheds also exhibit seasonally stable flows. Conversely, streams in agriculturally dominant watersheds exhibit more frequent and larger flooding events. These higher flows create severe bank erosion problems. Eroding banks deliver large amounts of sediment and impair instream habitat. Streams in predominantly urban watersheds are frequently confined by man-made structures, residences, and industries that cannot be moved. This subchapter establishes a broader array of general permits available for streams in agricultural or urban dominant watersheds.
NR 328.31(5)
(5) This subchapter authorizes bank erosion control treatments based on erosive potential at a site within the stream. Erosive potential is a reflection of habitat features at a site. Natural shoreline features provide natural erosion control in various ways. The force of current sorts out sand, gravel, cobbles, boulders and bedrock from beneath glacial till and other fine soils. These more energy resistant materials form energy-absorbing barriers that eliminate, or slow, erosion. Natural vegetation provides erosion control in several ways. Plant roots form a matrix that holds soil particles together to stabilize banks. Exposed stalks, stems, branches, foliage and fallen trees dampen waves, reduce local flow velocities, and dissipate energy against the plant rather than eroding the soil. Low-erosion potential sites are often typified by abundant natural vegetation, gradually sloped banks, gravel/rubble/boulder substrates at the toe of the bank, and no stratified soil layers. At low erosion potential and some moderate erosion potential sites, vegetation can effectively meet erosion control needs without infringement on habitat, navigation, natural scenic beauty or other public interests. Vegetation alone may be inadequate in some moderate erosion potential sites and many high erosion potential sites; therefore, methods that rely on technical structures or a combination of vegetation with technical structures may be necessary. Re-vegetated, topsoil-covered riprap and integrated bank protection are preferred structural bank protection methods in high-erosive potential settings.
NR 328.31(6)
(6) Standards for general permits are intended to ensure that cumulative adverse environmental impact of authorized activities is insignificant and that issuance of the general permit will not injure public rights or interests, cause environmental pollution as defined in s.
299.01 (4), Stats., or result in material injury to the rights of any riparian owner. To achieve this, general permit standards establish: construction and design requirements consistent with the purpose of the activity; location requirements that ensure that the activity will not have an adverse impact on fish and wildlife habitat, water quality and natural scenic beauty, or materially interfere with navigation or have an adverse impact on the riparian property rights of adjacent riparian owners.
NR 328.31(7)
(7) Factors for individual permits are intended to provide direction for detailed evaluation of permit applications, and to balance case-by-case review with consistent decision-making. Individual permits may only be granted where the department determines that the structure will not materially obstruct navigation, will not be detrimental to the public interest, and will not materially reduce the flood flow capacity of a stream.
NR 328.31 History
History: CR 06-126: cr.
Register July 2007 No. 619, eff. 8-1-07.
NR 328.32(1)(1)
Except as provided in s.
30.2023, Stats., this subchapter applies to construction, placement and maintenance of bank erosion control structures regulated under s.
30.12 (1),
(1g) (a), and
(k),
(2m),
(3) (a) 3r. and
13. and
(3m), Stats. Any person that intends to construct, place or maintain a bank erosion control structure in any river or stream shall comply with all applicable provisions of this chapter and any permit issued under this chapter.
NR 328.32(2)
(2) Erosion control measures such as grading to establish a stable slope, revegetation or other bioengineering methods that do not involve the placement of structures below the ordinary high water mark of a waterway or disturbance of more than 10,000 square feet on the bank are not regulated under s.
30.12 or
30.19, Stats., or this subchapter.
NR 328.32(3)
(3) Bank erosion control structures solely located above the ordinary high water mark are likely to migrate below the OHWM as the energy of water current is dissipated against the toe of the stream bank. When this migration occurs, the bank erosion control structure is considered subject to the provisions of this chapter.
NR 328.32 Note
Note: A permit is required if land disturbance or excavation exceeds 10,000 square feet on the bank of the navigable waterway (s.
30.19, Stats., and ch.
NR 341) or if the activity is conducted in a wetland (ss.
281.17 and
281.36, Stats.).
NR 328.32 Note
Note: Erosion control activities may be subject to county, city or village ordinances. Local zoning ordinances place restrictions on grading, buffers, and the cutting of vegetation in the shoreland zone. The riparian is required to comply with, and obtain all necessary permits under, local shoreland ordinances.
NR 328.32 History
History: CR 06-126: cr.
Register July 2007 No. 619, eff. 8-1-07.
NR 328.33
NR 328.33 Definitions. In this subchapter:
NR 328.33(1)
(1) “Bank erosion control structure" means a structure with defined shape, size, form and utility constructed and maintained for the purpose of protecting a streambank from erosion.
NR 328.33(2)
(2) “Biological materials" means living or organic materials that are 100% biodegradable such as native grasses, sedges, forbs, shrubs and trees; live stakes and posts; non-treated wood for staking; jute netting; fiber rolls and mats, erosion control blankets and turf reinforcement mats composed of natural fibers; logs; root wads; tree revetments; and branches.
NR 328.33 Note
Note: Temporary breakwaters, with non-biodegradable elements, are considered a permissible element during the plant establishment phase of a biological erosion control project.
NR 328.33(3)
(3) “Biostabilization" means a structure that relies solely on biological materials and may include bank reshaping. Biological bank erosion control structures include but are not limited to native vegetation, fiber rolls, fiber mats, live stakes, brush mattresses, fascines, branch packing, erosion control blankets, turf reinforcement mats, brush layering, encapsulated soil lifts, or revegetation by seeding.
NR 328.33(5)
(5) “Department" means the department of natural resources.
NR 328.33(6)
(6) “Grading" means the physical disturbance of the bank by the addition, removal or redistribution of soil.
NR 328.33(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 328.33(8)
(8) “Integrated bank treatment" means a structure that combines 2 separate treatments: structural treatment with inert materials for toe protection at the base of the bank and biostabilization on the upper portion of the bank.
NR 328.33(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 328.33(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 328.33 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).
