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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.
subch. III of ch. NR 328 Subchapter III — Shore Erosion Control Structures on Rivers and Streams
NR 328.31 NR 328.31Purpose.
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 NR 328.32Applicability.
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 328.33Definitions. 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(4) (4) “Commercial marina" has the meaning in ch. NR 326.
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(9) (9) “Municipal marina" has the meaning in ch. NR 326.
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).
NR 328.33(12) (12) “Replacement" means a degree of structural changes to the bank erosion control structure by which some or all of the structure is removed and recreated. 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 328.33(13) (13) “Riparian" means an owner of land abutting a navigable waterway.
NR 328.33(14) (14) “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 328.33(15) (15) “Seawall" means an upright structure that is steeper than 1.5 feet vertical to one foot horizontal and that is installed parallel to the bank to prevent the sliding or slumping of the land and to protect the adjacent upland from the action of surface water. Seawalls are commonly constructed of timber, rock (including gabions), concrete, steel or aluminum sheet piling, and may incorporate biological components. Biostabilization structures steeper than 1.5 feet vertical to one foot horizontal, such as encapsulated soil-lifts are not considered seawalls.
NR 328.33(16) (16) “Structural treatment" means a system of non-living materials with a specific configuration installed as a means of bank stabilization including, but not limited to, riprap, tree revetments, logs, rootwads, dormant post, jacks, coir logs, bulkheads, and stream barbs.
NR 328.33(17) (17) “Toe" means the break in slope at the foot of a bank where it meets the streambed.
NR 328.33(18) (18) “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 328.33 Note Note: Common law doctrine of avulsion secures to the waterfront property owner 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 328.33 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.
NR 328.34 NR 328.34Pre-existing structures. A streambank erosion control structure authorized by department permit prior to August 1, 2007, shall continue to be authorized, provided the structure is maintained in compliance with all the conditions of the original permit. Any modifications to the structure that do not comply with the original permit conditions shall require a new permit and shall comply with all standards in this section. Bank erosion control structures that were not authorized prior to August 1, 2007, require authorization prior to any repair, modification or replacement.
NR 328.34 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.
NR 328.35 NR 328.35General permits.
NR 328.35(1) (1)Procedures. General permits shall be processed according to the procedures in ch. NR 310.
NR 328.35(2) (2)Applicable activities. Projects that meet all the criteria in sub. (3) and either sub. (4), (5) or (6) are eligible for general permit coverage under ss. 30.12 (3) (d) and 30.206, Stats.
NR 328.35(3) (3)General standards.
NR 328.35(3)(a)(a) If the department determines that a proposal submitted under this section has the potential to impact an endangered or threatened species in accordance with s. 29.604, Stats., the application shall be deemed incomplete. The department may not consider the application complete or issue a general permit until the applicant submits documentation to demonstrate one of the following:
NR 328.35(3)(a)1. 1. The project avoids impacts to the endangered or threatened species in accordance with s. 29.604, Stats.
NR 328.35(3)(a)2. 2. The project has received an incidental take authorization under s. 29.604, Stats.
NR 328.35(3)(b) (b) If the applicant modifies the project plans to meet the requirements of par. (a), the modified plans shall be submitted before the department may consider the application complete or issue a general permit.
NR 328.35(3)(c) (c) The bank erosion control structure may not be placed in a wetland.
NR 328.35 Note Note: Eligibility for a 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 with 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 328.35(3)(d) (d) Bank erosion control structures may be placed only by a riparian.
NR 328.35(3)(e) (e) To minimize adverse impacts on fish movement, fish spawning, egg incubation periods and high stream flows, placement may not occur during any of the following time periods:
NR 328.35(3)(e)1. 1. For trout streams identified under s. NR 1.02 (7) and perennial tributaries to those trout streams, September 15 through May 15.
NR 328.35(3)(e)2. 2. For all waters not identified in subd. 1. and located south of state highway 29, March 15 through May 15.
NR 328.35(3)(e)3. 3. For all waters not identified in subd. 1. and located north of state highway 29, April 1 through June 1.
NR 328.35(3)(e)4. 4. The applicant may request that the requirement in subd. 1., 2. or 3. be waived by the department on a case-by-case basis, by submitting a written statement signed by the local department fisheries biologist, documenting consultation about the proposed shore erosion control project, and that the local department fisheries biologist has determined that the requirements of this paragraph are not necessary to protect fish spawning for the proposed project.
NR 328.35(3)(f) (f) Any grading, excavation and land disturbance shall be confined to the minimum necessary for the construction and may not exceed 10,000 square feet.
NR 328.35 Note Note: A permit is required under s. 30.19, Stats., and ch. NR 341 if land disturbance or excavation exceeds 10,000 square feet on the bank of the navigable waterway. Bank shaping activities necessary to protect stream and river shorelines from erosion on lands used entirely for agriculture are exempt from this subchapter.
NR 328.35(3)(g) (g) 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 sodded, seeded and mulched, covered with erosion mat or riprapped to stabilize disturbed areas and prevent soils from being eroded and washed into the waterway.
NR 328.35 Note Note: These standards can be found at the following website: http://dnr.wi.gov/topic/stormwater/standards/.
NR 328.35(3)(h) (h) 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 328.35(3)(i) (i) Vegetation, such as seeding, plant plugs, and dormant plantings shall be plant species native to the area of Wisconsin where the project is located. Non-invasive cool season species such as Virginia wild rye, Timothy, alfalfa, alsike clover, orchard grass, Smooth brome grass and red top, may be incorporated into native seed mixes for the purpose of rapid stabilization of critical sites adjacent to agricultural fields.
NR 328.35(3)(j) (j) 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 328.35(3)(k) (k) The stabilization method shall follow the natural contour of the shoreline. No waterward extension of the property is permitted other than what is reasonably necessary to conduct the project and protect the existing bank. Except as provided in sub. (4) (d), no soil or similar fill material may be placed in a wetland or below the ordinary high water mark of any navigable waterway.
NR 328.35(3)(L) (L) Erosion control structures shall begin and end at a stabilized or controlled point.
NR 328.35(3)(m) (m) Except as required for appropriate toe installation of the erosion control structure, dredging is not permitted under this section.
NR 328.35(3)(n) (n) The erosion control structure design and placement may not result in a net decrease in the density or size-structure of tree-falls or logs in the water or on the bed and banks of the stream.
NR 328.35(3)(o) (o) Except for the Driftless Area and Prairie Pothole Region, all trees greater than 4 DBH (diameter breast high) removed as part of the erosion control project within 35 feet of the ordinary high water mark shall be incorporated into the waterward portion of the erosion control design.
NR 328.35 Note Note: Driftless Area and Prairie Pothole Region can be found in s. NR 328.38, Figure 1.
NR 328.35(3)(p) (p) 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 all actions specified in either 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 328.35(3)(p)1. 1. Inspect all equipment used for constructing, operating, or maintaining the project and remove all plants and animals, and other mud, debris, and similar materials.
NR 328.35(3)(p)2. 2. Drain all water from equipment used in navigable waters.
NR 328.35 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 328.35(3)(p)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 328.35(3)(p)4. 4. Wash equipment at a temperature of not less than 212 degrees Fahrenheit water (steam clean).
NR 328.35(3)(p)5. 5. Wash equipment with soap and water or high pressure water of not less than 2000 pounds per square inch.
NR 328.35(3)(p)6. 6. Allow equipment to dry thoroughly for not less than 5 days.
NR 328.35 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 328.35(3)(p)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 328.35 Note Note: Chlorine refers to either household bleach solution (5.25% chlorine) or granular chlorine (70% calcium hypochlorite).
NR 328.35(3)(p)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 328.35 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 328.35(4) (4)Biostabilization. Biostabilization on the bed or bank of a navigable river or stream may be authorized under this general permit if it meets the requirements of sub. (3) and all of the following requirements:
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.