Chapter 30

30.13 Annotation Riparian rights are qualified by reasonable use and are subordinate to public rights. The common law requires reasonable use by riparian owners to be determined by the extent and capacity of the lake, the uses to which it has been put, and the rights that other riparian owners on the same lake also have. The inquiry is highly fact-specific, and determinations are made on a case-by-case basis. Hilton v. Department of Natural Resources, 2006 WI 84, 293 Wis. 2d 1, 717 N.W.2d 166, 03-3353.

30.13 Annotation Historical use, however it is determined, is one of the factors that an administrative law judge may weigh in balancing the private rights and public interests at stake in riparian rights/public trust doctrine cases. The cases do not establish any set definition of historical use or any hard and fast methodology for determining it. That historic use must be based on something like passage of an ordinance or department of natural resources contact is not required by public policy considerations. An ALJ may review local ordinances in making a permit determination but is not required to do so. Hilton v. Department of Natural Resources, 2006 WI 84, 293 Wis. 2d 1, 717 N.W.2d 166, 03-3353.

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

30.131 30.131 Wharves and piers placed and maintained by persons other than riparian owners.

30.131(1) (1) Notwithstanding s. 30.133, a wharf or pier of the type which does not require a permit under ss. 30.12 (1) and 30.13 that abuts riparian land and that is placed in a navigable water by a person other than the owner of the riparian land may not be considered to be an unlawful structure on the grounds that it is not placed and maintained by the owner if all of the following requirements are met:

30.131(1)(a) (a) The owner of the riparian land or the owner’s predecessor in interest entered into a written easement that was recorded before December 31, 1986, and that authorizes access to the shore to a person who is not an owner of the riparian land.

30.131(1)(b) (b) The person to whom the easement was granted or that person’s successor in interest is the person who places and maintains the wharf or pier.

30.131(1)(c) (c) The placement and maintenance of the wharf or pier is not prohibited by and is not inconsistent with the terms of the written easement.

30.131(1)(d) (d) The wharf or pier has been placed seasonally in the same location at least once every 4 years since the written easement described in par. (a) was recorded.

30.131(1)(e) (e) The wharf or pier is substantially the same size and configuration as it was on April 28, 1990, or during its last placement before April 28, 1990, whichever is later.

30.131(1)(f) (f) The placement of the wharf or pier complies with the provisions of this chapter, with any rules promulgated under this chapter and with any applicable municipal regulations or ordinances.

30.131(2) (2) Notwithstanding s. 30.133, an easement under sub. (1) may be conveyed if it is conveyed at the same time, and to the same person, that the land to which the easement is appurtenant is conveyed.

30.131 History History: 1989 a. 217; 1993 a. 167.

30.131 Annotation The application of s. 30.131 is discussed. Godfrey Co. v. Lopardo, 164 Wis. 2d 352, 474 N.W.2d 786 (Ct. App. 1991).

30.131 Annotation This section does not grant rights to a nonriparian owner vis a vis a riparian owner. The statute speaks only to the lawfulness of a pier maintained under a nonriparian access easement. The terms and purpose of the easement may include the right to use and maintain the pier. Wendt v. Blazek, 2001 WI App 91, 242 Wis. 2d 722, 626 N.W.2d 78, 00-2448.

30.132 30.132 Riparian rights.

30.132(1) (1) Definitions. In this section:

30.132(1)(a) (a) “Commission” means the public service commission.

30.132(1)(b) (b) “Hydroelectric operator” means an operator of a project.

30.132(1)(c) (c) “Project” means a hydroelectric project regulated by the federal energy regulatory commission or the department.

30.132(1)(d) (d) “Project riparian” means an owner of land that abuts a navigable waterway, the abutting bed of which is owned by a hydroelectric operator.

30.132(2) (2) Presumption of riparian rights. An owner of land that abuts a navigable waterway is presumed to be a riparian owner and is entitled to exercise all rights afforded to a riparian owner, including the right to place a pier, other structures, or deposits, even if the bed of the waterway is owned in whole or in part by another, unless those rights are specifically prohibited by the deed to the land, written agreement, or other recorded instrument. The exercise of these riparian rights is subject to the requirements of this chapter and, if the waterway is within the boundaries of a project, the reasonable restrictions imposed by the hydroelectric operator necessary for the hydroelectric operator to comply with requirements imposed under state or federal law or a federal energy regulatory commission license.

30.132(3) (3) Project riparian rights.

30.132(3)(a) (a) Application to exercise riparian rights. A project riparian may make written application to the applicable hydroelectric operator for permission to exercise a riparian right in a waterway within the boundaries of a project, including the right to place a pier or other structures or deposits and the right to modify an existing structure authorized under par. (b), subject to the requirements of this chapter. The hydroelectric operator shall approve or deny an application under this paragraph no later than 60 days after receiving the application. The hydroelectric operator may deny an application under this paragraph only if necessary for the hydroelectric operator to comply with requirements imposed under state or federal law or a federal energy regulatory commission license but may approve the application subject to reasonable restrictions necessary for the hydroelectric operator to comply with requirements imposed under state or federal law or a federal energy regulatory commission license. The hydroelectric operator may charge an applicant a reasonable fee to cover the hydroelectric operator’s administrative costs related to a structure or deposit that is approved under this paragraph.

30.132(3)(b) (b) Existing structures. Notwithstanding par. (a), a project riparian may maintain a structure that was placed in a waterway within the boundaries of a project prior to June 20, 2021, subject to the requirements of this chapter and the reasonable restrictions imposed by the hydroelectric operator necessary for the hydroelectric operator to comply with requirements imposed under state or federal law or a federal energy regulatory commission license. A hydroelectric operator may not charge a fee related to a structure authorized under this paragraph unless a fee is provided for in an agreement between the hydroelectric operator and the project riparian that existed prior to June 20, 2021.

30.132(3)(c) (c) Appeal to the commission. A project riparian whose application is denied or approved with restrictions or who is charged an unreasonable fee under this subsection may appeal in writing to the commission. The commission may investigate the appeal and issue an order based on its investigation. The commission may not issue an order under this paragraph without a public hearing conducted in accordance with s. 196.26 (2).

30.132(3)(d) (d) Immunity from liability. A hydroelectric operator is not liable to any person for any injury or damage arising from a project riparian’s use of the hydroelectric operator’s property as provided in this section.

30.132(4) (4) Effect on enforceable interests. Nothing in this section invalidates any interest, whether designated as an easement, covenant, equitable servitude, restriction, or otherwise, which is otherwise enforceable under the laws of this state.

30.132 History History: 2021 a. 47.

30.133 30.133 Prohibition against conveyance of riparian rights.

30.133(1) (1) Beginning on April 9, 1994, and except as provided in s. 30.1335, no owner of riparian land that abuts a navigable water may grant by an easement or by a similar conveyance any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water. This right to cross the land may not include the right to place any structure or material, including a boat docking facility, as defined in s. 30.1335 (1) (a), in the navigable water.

30.133(2) (2) This section does not apply to riparian land located within the boundary of any hydroelectric project licensed or exempted by the federal government, if the conveyance is authorized under any license, rule or order issued by the federal agency having jurisdiction over the project. This section does not apply to riparian land that is associated with an approval required for bulk sampling or mining that is required under subch. III of ch. 295.

30.133 History History: 1993 a. 167; 2007 a. 20; 2009 a. 180, 352; 2013 a. 1.

30.133 Annotation Small lock boxes were not “intended for any type of independent use” within the meaning of a condominium “unit” under s. 703.02 (15) and were not valid condominium units. Without a valid condominium unit, the transfer of riparian rights purportedly attached to the condominium lock boxes was in violation of this section. ABKA Limited Partnership v. Department of Natural Resources, 2002 WI 106, 255 Wis. 2d 486, 648 N.W.2d 854, 99-2306.

30.133 Annotation This section prohibits the severing by easement or by a similar conveyance of riparian rights from the riparian lands to which they are attached, preventing the reservation of riparian rights apart from riparian land by an easement, as well as the granting of riparian rights to a nonriparian. Berkos v. Shipwreck Bay Condominium Association, 2008 WI App 122, 313 Wis. 2d 609, 758 N.W.2d 215, 06-2747.

30.133 Note NOTE: The above annotated cases cite to the pre-2007 Wisconsin Act 20 version of s. 30.133. See also s. 30.1335, created by 2007 Wisconsin Act 20.

30.1335 30.1335 Marina condominiums.

30.1335(1) (1) Definitions. In this section:

30.1335(1)(a) (a) “Boat docking facility” means a pier, wharf, boat slip, or multi-boat-slip facility.

30.1335(1)(b) (b) “Common element” has the meaning given in s. 703.02 (2).

30.1335(1)(c) (c) “Condominium” has the meaning given in s. 703.02 (4).

30.1335(1)(d) (d) “Condominium unit” has the meaning given for “unit” in s. 703.02 (15).

30.1335(1)(e) (e) “Declarant” has the meaning given in s. 703.02 (7).

30.1335(1)(f) (f) “Declaration” has the meaning given in s. 703.02 (8).

30.1335(1)(h) (h) “Dwelling” means a structure or part of a structure that is used or intended to be used as a home or residence by one or more persons to the exclusion of all others.

30.1335(1)(i) (i) “Limited common element” has the meaning given in s. 703.02 (10).

30.1335(1)(j) (j) “Marina condominium” means a condominium in which the common elements, limited common elements, or condominium units consist of or include boat docking facilities and to which either or both of the following apply:

30.1335(1)(j)1. 1. One or more of the boat docking facilities is not appurtenant to a dwelling.

30.1335(1)(j)2. 2. None of the condominium units are dwellings.

30.1335(2) (2) Prohibition. No owner of riparian land may create a marina condominium on the riparian land on or after June 1, 2007. Any declaration for a marina condominium that is recorded on or after June 1, 2007, is invalid and establishes ownership of the riparian land as a tenancy in common that is held by the owners of the marina condominium units.

30.1335(3) (3) Existing marina condominiums.

30.1335(3)(a) (a) Notwithstanding sub. (2), a declaration that creates or purports to create a marina condominium and that is recorded before June 1, 2007, shall be effective in creating the marina condominium regardless of subsequent activity affecting the declaration.

30.1335(3)(b) (b) If a marina condominium as described in par. (a) contains more than 300 boat slips, the declarant shall make at least 40 percent of the total number of boat slips in the marina condominium available for rent or for transient use by the public. When the declarant conveys title to, or another interest in, a condominium unit that is affected by this restriction on use, the declarant shall include a statement of the restriction in the instrument of conveyance.

30.1335(4) (4) Validity of permits.

30.1335(4)(a) (a) For a marina that is converted into a marina condominium, if the owner of the marina is issued a permit or other authorization under this subchapter to place, maintain, or use a boat docking facility before the date that a declaration was recorded converting the marina into a marina condominium, the permit or authorization shall be deemed to satisfy the requirements of the other sections of this subchapter and may not be rescinded or modified by the department or a municipality or by court or administrative order if the grounds for the rescission or modification are based on the fact that the marina has been converted to a marina condominium. The permit or authorization shall remain in effect regardless of any subsequent activity affecting the declaration. This paragraph does not apply to any permit or authorization that is issued after the date that the declaration was recorded converting the marina into a marina condominium.

30.1335(4)(b) (b) For a marina condominium that was not previously a marina, if the owner of a marina condominium is issued a permit or other authorization under this subchapter to place, maintain, or use a boat docking facility, the permit or authorization shall be deemed to satisfy the requirements of the other sections of this subchapter and may not be rescinded or modified by the department or a municipality or by court or administrative order if the grounds for the rescission or modification are based on the fact that the boat docking facility is part of a marina condominium as opposed to a marina. The permit or authorization shall remain in effect regardless of any subsequent activity affecting the declaration.

30.1335(5) (5) Increase in size or number. An amendment or modification of a declaration as described under sub. (3) (a) may not increase the size of the boat docking facility or the size or the number of boat slips in a boat docking facility.

30.1335(6) (6) Subsequent activity affecting a declaration. For purposes of this section, subsequent activity affecting the declaration consists of any of the following:

30.1335(6)(a) (a) Any amendment, modification, or restatement of the declaration by court or administrative order or by consent of the owners of the condominium units as authorized under ch. 703.

30.1335(6)(b) (b) Any determination by court or administrative order that the declaration is void or voidable or that the condominium units in the condominium are not intended for any type of independent use.

30.1335(7) (7) Department enforcement. Notwithstanding sub. (4), the department retains the authority to enforce the terms and conditions of a permit or other authorization except to the extent that such terms and conditions relate to the form of ownership of a boat docking facility.

30.1335 History History: 2007 a. 20; 2009 a. 180, 352.

30.134 30.134 Use of exposed shore areas along streams.

30.134(1) (1) Definitions. In this section:

30.134(1)(a) (a) “Artificial ditch” means a ditch, channel, canal or other stream of water that has no prior history as a stream.

30.134(1)(b) (b) “Exposed shore area” means the area of the bed of a navigable body of water that is between the ordinary high-water mark and the water’s edge.

30.134(1)(c) (c) “Highway” has the meaning given in s. 340.01 (22).

30.134(1)(d) (d) “Riparian” means the owner, lessee or occupant of land that abuts a navigable body of water.

30.134(2) (2) Authorization. Members of the public may use any exposed shore area of a stream without the permission of the riparian only if it is necessary to exit the body of water to bypass an obstruction.

30.134(3) (3) Restrictions; members of public.

30.134(3)(a) (a) In using an exposed shore area of a stream, as authorized under sub. (2), a member of the public may not enter the exposed shore area except from the water, from a point of public access on the stream, or with the permission of the riparian.

30.134(3)(c) (c) Use of an exposed shore area of a stream by members of the public does not grant an easement or other right to the exposed shore area that is greater than the right granted to the public under this section.

30.134(4) (4) Restrictions; riparians; others.

30.134(4)(a) (a) No riparian may prohibit a member of the public from using, as authorized under this section, an exposed shore area of a stream.

30.134(4)(b) (b) No riparian may charge a fee for the use, as authorized under this section, of an exposed shore area of a stream.

30.134(4)(c) (c) No person may obstruct a highway with the intention to impede or prohibit access by the public to an exposed shore area of a stream.

30.134(5) (5) Exceptions. The right granted to the public under this section to use an exposed shore area of a stream does not apply to any of the following:

30.134(5)(a) (a) An exposed shore area of an impoundment on a stream.

30.134(5)(b) (b) Any artificial ditch.

30.134(5)(c) (c) Any location on a stream where there is no surface water flowing in the stream.

30.134 History History: 1999 a. 9; 2001 a. 16.

30.135 30.135 Regulation of water ski platforms and jumps.

30.135(1) (1) A riparian owner placing a water ski platform or water ski jump in a navigable waterway is exempt from the permit requirements under this chapter if all of the following requirements are met:

30.135(1)(a) (a) The platform or jump does not interfere with public rights in navigable waters.

30.135(1)(b) (b) The platform or jump does not interfere with rights of other riparian owners.

30.135(1)(c) (c) The platform or jump is located at a site that ensures adequate water depth and clearance for safe water skiing.

30.135(2) (2) If the department determines that any of the requirements under sub. (1) are not met, the riparian owner shall submit an application for an individual permit to the department. The notice and hearing provisions under s. 30.208 (3) to (5) apply to the application.

30.135 History History: 1997 a. 27; 2003 a. 118.

30.14 30.14 Reports of and hearings on violations.