Chapter 30

30.12(2r) (2r) Exemption determinations.

30.12(2r)(a) (a) A person may submit to the department a written statement requesting that the department determine whether a proposed activity is exempt under sub. (1g). The statement shall contain a description of the proposed activity and site and shall give the department consent to enter and inspect the site.

30.12(2r)(b) (b) The department shall do all of the following within 15 days after receipt of a statement under par. (a):

30.12(2r)(b)1. 1. Enter and inspect the site on which the activity is located, subject to s. 30.291, if the department determines such an inspection is necessary.

30.12(2r)(b)2. 2. Make a determination as to whether the activity is exempt.

30.12(2r)(b)3. 3. Notify in writing the person submitting the statement which general or individual permit will be required for the activity, if the department determines that the activity is not exempt.

30.12(2r)(c) (c) If the department does not take action under par. (b), the department may not require at any time that the person proposing to engage in the activity apply for an individual permit or seek authorization under a general permit unless required to do so by a court or hearing examiner.

30.12(2r)(d) (d) If a statement under par. (a) is not given or if the statement does not give consent to inspect, the 15-day time limit under par. (b) does not apply.

30.12(3) (3) General permits.

30.12(3)(a) (a) The department shall issue statewide general permits under s. 30.206 that authorize riparian owners to do all of the following:

30.12(3)(a)1. 1. Place a layer of sand or similar material on the bed of a lake adjacent to the owner’s property for the purpose of improving recreational use.

30.12(3)(a)3c. 3c. Place riprap in order to replace or repair existing riprap, other than riprap that is exempt under sub. (1g) (i) or (j).

30.12(3)(a)3g. 3g. Place riprap on the bed or bank of a navigable water adjacent to an owner’s property in an amount up to and including 100 continuous feet in an inland lake of 300 acres or more.

30.12(3)(a)3r. 3r. Place riprap on the bed or bank of a navigable water adjacent to an owner’s property in an amount up to and including 300 continuous feet in a Great Lakes water body.

30.12(3)(a)4. 4. Place crushed rock or gravel, reinforced concrete planks, adequately secured treated timbers, cast in place concrete or similar material on the bed of a navigable stream for the purpose of developing a ford if an equal amount of material is removed from the stream bed.

30.12(3)(a)5. 5. Place crushed rock or gravel, reinforced concrete planks, cast in place concrete or similar material on the bed of navigable waters adjacent to the owner’s property for the purpose of building a boat landing.

30.12(3)(a)6. 6. Place a permanent boat shelter adjacent to the owner’s property for the purpose of storing or protecting watercraft and associated materials.

30.12(3)(a)13. 13. Place a seawall to replace an existing seawall for which a permit has been issued or an exemption granted under this chapter, or for which no permit was required at the time the seawall was built. The replacement may not exceed 100 continuous feet in an inland lake of 300 or more acres and may not exceed 300 continuous feet in a Great Lakes water body. In issuing the permit, the department may impose conditions on the replacement of a seawall located in an area of special natural resource interest only if those conditions do not prohibit the replacement of a seawall located in an area of special natural resource interest.

30.12(3)(a)14. 14. Place a pier or wharf on the bed of a navigable water that is in, or that would directly affect, an area of special natural resource interest and that is adjacent to the owner’s property if the pier or wharf does not interfere with the riparian rights of other riparian owners and it meets the requirements of sub. (1g) (f).

30.12(3)(b) (b)

30.12(3)(b)1. 1. The department shall issue a statewide general permit under s. 30.206 that authorizes a person to place a net pen in a Great Lakes water body or a tributary of a Great Lakes water body if all of the following apply:

30.12(3)(b)1.a. a. The net pen is placed for the purpose of holding or rearing fish for noncommercial purposes.

30.12(3)(b)1.b. b. The fish held or reared in the net pen are stocked by the department or by a person who is in compliance with s. 29.736.

30.12(3)(b)1.c. c. The fish held or reared in the net pen are released by the department or by a person who is in compliance with s. 29.736 into the same body of water in which the net pen is placed.

30.12(3)(b)2. 2. A general permit issued for the purpose described in this section shall authorize a person to place a net pen in a Great Lakes water body or a tributary of a Great Lakes water body for a period not to exceed 8 weeks. The general permit may not limit the number of times that a person may place a net pen in a Great Lakes water body or a tributary of a Great Lakes water body under the authority of that general permit.

30.12(3)(c) (c) The department may impose conditions on general permits issued under par. (a) 6. to govern the architectural features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The conditions may not govern the aesthetic features or color of boat shelters or the distance at which a boat shelter may extend from the shore, except to prohibit a boat shelter from extending beyond the line of navigation, and may not be based on the degree to which adjacent land is developed. The conditions shall be designed to ensure the structural soundness and durability of boat shelters. A municipality may enact ordinances that are consistent with this paragraph and with any conditions imposed on general permits issued to regulate the architectural features of boat shelters that are under the jurisdiction of the municipality.

30.12(3)(d) (d) The department may impose conditions relating to the location, design, construction, and installation of a pier or wharf placed under the authority of a general permit issued under par. (a) 14., but may not prohibit a riparian owner from placing a pier or wharf that meets the requirement of the general permit.

30.12(3m) (3m) Individual permits.

30.12(3m)(a) (a) For a structure or deposit that is not exempt under sub. (1g) and that is not subject to a general permit under sub. (3), and for a structure or deposit for which the department requires an individual permit under sub. (2m) or s. 30.206 (3r), a riparian owner may apply to the department for the individual permit that is required under sub. (1) in order to place the structure for the owner’s use or to deposit the material.

30.12(3m)(am) (am)

30.12(3m)(am)1. 1. Except as provided under subd. 2., the department may not refuse to allow a riparian owner to apply for an individual permit for the placement of a pier or wharf, including a solid pier, that exceeds the number of boat slips authorized under sub. (1g) (f) or (1j). The department shall evaluate permit applications under this paragraph on an individual basis and shall grant such applications if the department finds that the pier or wharf meets the requirements under par. (c) 1. to 3.

30.12(3m)(am)2. 2. The department may deny an individual permit to the riparian owner or owners of a property that is adjacent to a lake of 50 acres or more and on which there are 3 or more dwelling units if the riparian owner or owners apply for an individual permit for the placement of a pier or wharf with a number of boat slips that exceeds the number of boat slips specified in sub. (1j) (a) 2.

30.12(3m)(b) (b) The notice and hearing provisions of s. 30.208 (3) to (5) shall apply to an application under par. (a).

30.12(3m)(c) (c) The department shall issue an individual permit to a riparian owner for a structure or a deposit pursuant to an application under par. (a) if the department finds that all of the following requirements are met:

30.12(3m)(c)1. 1. The structure or deposit will not materially obstruct navigation.

30.12(3m)(c)2. 2. The structure or deposit will not be detrimental to the public interest.

30.12(3m)(c)3. 3. The structure or deposit will not materially reduce the flood flow capacity of a stream.

30.12(3m)(cm) (cm) In determining whether to issue an individual permit to the owner of a proposed pier or wharf, the department may not deny the permit unless the department considers all reasonable alternatives offered by the department and the owner of the pier or wharf relating to the location, design, construction, and installation of the pier or wharf.

30.12(3m)(cr) (cr) In determining whether to issue an individual permit to the owner of a proposed permanent boat shelter, the department may not deny the permit on the basis of any of the following:

30.12(3m)(cr)1. 1. The distance at which the shelter will extend from the shore, except that the department may deny the permit on the basis that the boat shelter will extend beyond the line of navigation.

30.12(3m)(cr)2. 2. The degree to which adjacent land is developed.

30.12(3m)(d) (d)

30.12(3m)(d)1. 1. In this paragraph, “solid pier” means a pier that does not allow for the free flow of water beneath the pier.

30.12(3m)(d)2. 2. The department may promulgate rules that limit the issuance of individual permits for solid piers to outlying waters, harbors connected to outlying waters, the Fox River from the dam at De Pere to Lake Winnebago, Lake Winnebago, and the Mississippi River. The rules may establish reasonable conditions to implement the criteria under par. (c) 1. to 3. The rules may not prohibit the issuance of individual permits for solid piers used for private or commercial purposes.

30.12(5) (5) Penalty. Any person violating this section or any term or condition of a permit issued pursuant thereto shall be fined not more than $1,000 or imprisoned not more than 6 months or both.

30.12 History History: 1975 c. 250, 421; 1977 c. 130, 447; 1981 c. 226, 330; 1981 c. 390 s. 252; 1987 a. 374; 1989 a. 31; 1993 a. 132, 151, 236, 491; 1995 a. 27, 201, 227; 1997 a. 35, 248; 1999 a. 9; 2001 a. 16; 2003 a. 118, 321, 326, 327; 2007 a. 204; 2011 a. 25, 153, 167; 2013 a. 1, 75; 2015 a. 387; 2017 a. 58, 59, 281.

30.12 Cross-reference Cross-reference: See also chs. NR 300, 320, 323, 326, 328, 329, and 353, Wis. adm. code.

30.12 Annotation In a state proceeding to enforce a department of natural resources order requiring an owner of land abutting a navigable lake to remove a quantity of fill, the burden of proof is on the state to establish the nonexistence of a bulkhead line. State v. McFarren, 62 Wis. 2d 492, 215 N.W.2d 459 (1974).

30.12 Annotation Sub. (1) (a) does not apply to conduct that only indirectly and unintentionally results in deposits on lake beds. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974).

30.12 Annotation When a department of natural resources decision prohibited a structure under this section and the riparian owner did not seek review under s. 227.20 [now s. 227.57], the trial court had no jurisdiction to hear an action by the owner seeking a declaration that the structure was a “pier” permitted under s. 30.13. Kosmatka v. Department of Natural Resources, 77 Wis. 2d 558, 253 N.W.2d 887 (1977).

30.12 Annotation “Navigable waters” under this section are waters that are navigable in fact. A ski jump was a “structure” under this section. The public trust doctrine is discussed. State v. Bleck, 114 Wis. 2d 454, 338 N.W.2d 492 (1983).

30.12 Annotation Section 66.24 (5) (c) [now s. 200.11 (5) (c)] does not exempt sewerage districts from the requirements of s. 30.12. Cassidy v. Department of Natural Resources, 132 Wis. 2d 153, 390 N.W.2d 81 (Ct. App. 1986).

30.12 Annotation An area need not be navigable to be a lakebed. The ordinary high water mark is determinative. State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337 (1987).

30.12 Annotation The holder of an easement does not qualify as a riparian owner. De Nava v. Department of Natural Resources, 140 Wis. 2d 213, 409 N.W.2d 151 (Ct. App. 1987).

30.12 Annotation In considering whether a proposed structure is detrimental to the public interest, the department of natural resources is authorized to weigh relevant policy factors including the preservation of the natural beauty of the state’s waters, the public’s fullest use of the waters, and the convenience of riparian owners. Sterlingworth Condominium Association v. Department of Natural Resources, 205 Wis. 2d 710, 556 N.W.2d 702 (Ct. App. 1996), 95-3526.

30.12 Annotation Review of local ordinances may be made in making a determination under sub. (2), but is not required. Issuance of a permit conditioned on compliance with a local ordinance was reasonable. Borsellino v. Department of Natural Resources, 2000 WI App 27, 232 Wis. 2d 430, 606 N.W.2d 255, 99-1220.

30.12 Annotation Although in granting pier permits under s. 30.12 the department of natural resources acts in furtherance of the public trust, a cause of action cannot be based only on a general allegation of a violation of the public trust doctrine. Borsellino v. Department of Natural Resources, 2000 WI App 27, 232 Wis. 2d 430, 606 N.W.2d 255, 99-1220.

30.12 Note NOTE: The above annotated materials cite to the pre- 2003 Wisconsin Act 118 version of s. 30.12.

30.12 Annotation A permit under this section is akin to a building permit. There is no ongoing requirement to satisfy the criteria in sub. (3m) (c) 1. to 3. Myers v. DNR, 2019 WI 5, 985 Wis. 2d 176, 922 N.W.2d 47, 16-1517.

30.12 Annotation Municipal regulations enacted under s. 30.13 (2) cannot be applied to a pier that qualifies for a permit exemption under sub. (1g) (f). Oneida County v. Sunflower Prop II, LLC, 2020 WI App 22, 392 Wis. 2d 293, 944 N.W.2d 52, 18-2366.

30.12 Annotation New Law Eases Requirements: Navigable Waterway Permits. Wheeler. Wis. Law. Aug. 2012.

30.121 30.121 Regulation of boathouses and houseboats.

30.121(1) (1) Definition. In this section, the terms “maintain” and “repair” include replacing structural elements, including roofs, doors, walls, windows, beams, porches, floors, and foundations.

30.121(2) (2) Prohibitions. After December 16, 1979 no boathouse or fixed houseboat may be constructed or placed beyond the ordinary high-water mark of any navigable waterway.

30.121(3) (3) Maintenance and repair. The riparian owner of any boathouse or fixed houseboat extending beyond the ordinary high-water mark of any navigable waterway may repair or maintain the boathouse or fixed houseboat if the cost to repair or maintain the boathouse or fixed houseboat does not exceed 50 percent of the equalized assessed value of the boathouse or fixed houseboat and the repair or maintenance does not involve the placement of a floor over a wet bay on or after September 1, 2016. If the boathouse or fixed houseboat is not subject to assessment, the owner may repair or maintain the boathouse or the fixed houseboat if the cost of the repair or maintenance does not exceed 50 percent of the current fair market value of the boathouse or fixed houseboat and the repair or maintenance does not involve the placement of a floor over a wet bay on or after September 1, 2016.

30.121(3c) (3c) Exception; certain boathouses. Subsection (3) does not apply to repairing or maintaining a boathouse if the boathouse was in existence on December 16, 1979, and if all of the following apply to the repair or maintenance:

30.121(3c)(a) (a) It does not affect the size or location of the boathouse.

30.121(3c)(b) (b) It does not result in the boathouse being converted into living quarters.

30.121(3c)(c) (c) It does not involve the placement of a floor over a wet bay in the boathouse on or after September 1, 2016.

30.121(3g) (3g) Exception; historical or cultural value. Subsection (3) does not apply to repairing or maintaining a boathouse or a fixed houseboat if the boathouse or fixed houseboat has a historic or cultural value, as determined by the state historical society or a local or county historical society established under s. 44.03.

30.121(3m) (3m) Exception; certain single-story boathouses. Notwithstanding subs. (2) and (3), a person may construct, repair or maintain a single-story boathouse over an authorized waterway enlargement if:

30.121(3m)(a) (a) The boathouse does not extend beyond the ordinary high-water mark as it existed prior to the creation of the enlargement;

30.121(3m)(b) (b) The boathouse covers the entire enlargement; and

30.121(3m)(c) (c) Living quarters or plumbing fixtures are not constructed in the boathouse.

30.121(3r) (3r) Exception; damages after January 1, 1984. Subsections (2) and (3) do not apply to repairing or reconstructing a damaged boathouse if the boathouse was damaged by violent wind, vandalism or fire and if the damage occurs after January 1, 1984.

30.121(3w) (3w) Exception; commercial boathouses. Notwithstanding subs. (2) and (3), a person may construct, repair, or maintain a boathouse if all of the following apply:

30.121(3w)(a) (a) The boathouse is used exclusively for commercial purposes.

30.121(3w)(b) (b) The boathouse is located on land zoned exclusively for commercial or industrial purposes or the boathouse is located on a brownfield, as defined in s. 238.13 (1) (a), or in a blighted area, as defined in s. 66.1331 (3) (a).

30.121(3w)(c) (c) The boathouse is in any of the following locations:

30.121(3w)(c)1. 1. Within a harbor that is being operated as a commercial enterprise.

30.121(3w)(c)2. 2. On a river that is a tributary of Lake Michigan or Lake Superior.

30.121(3w)(c)3. 3. On an outlying water and the work is limited to the expansion, repair, or maintenance of an existing boathouse.

30.121(3w)(d) (d) The person has been issued any applicable individual permits under this subchapter and is in compliance with any applicable general permitting requirements under this subchapter.

30.121(4) (4) Major repair, abandoned structures and obstructions to navigation. The owner of a boathouse or a fixed houseboat which extends beyond the ordinary high-water mark of any navigable waterway and which is in a major state of disrepair or is a material obstruction to navigation may be ordered by the department to remove the structure from the waterway. The department shall follow the procedures set forth in s. 30.03 (4) (a) for ordering removal of a structure. If such a structure is abandoned and the department, after due diligence, cannot locate the owner, the department shall utilize the procedures set forth in s. 31.187 (1) for removing the abandoned structure.

30.121(5) (5) Applicability. Boathouses or fixed houseboats owned by the state or by local units of government shall comply with this section. This section does not apply to any structure listed on the national register of historic places in Wisconsin or the state register of historic places.

30.121(6) (6) Rules. The department may promulgate rules deemed necessary to carry out the purposes of this section. The rules may not govern the aesthetic features or color of boathouses.

30.121(7) (7) Penalties. Any person who constructs, owns or maintains a boathouse or fixed houseboat in violation of this section or in violation of any order issued under this section shall forfeit not less than $10 nor more than $50 for each offense. Each day a structure exists in violation of this section constitutes a separate offense.

30.121 History History: 1979 c. 101; 1981 c. 117; 1983 a. 27 s. 2202 (38); 1987 a. 374, 395; 1995 a. 27; 2001 a. 16; 2003 a. 118; 2011 a. 32, 167; 2015 a. 387.

30.121 Cross-reference Cross-reference: See also ch. NR 325, Wis. adm. code.