Chapter 30

30.18(4)(a) (a) The notice and hearing provisions of s. 30.208 (3) to (5) shall apply to an application under sub. (3). In addition to providing notice as required under s. 30.208 (3) to (5), the department shall mail a copy of the notice to every person upon whose land any part of the canal or any other structure will be located, to the clerk of the next town downstream, to the clerk of any village or city in which the lake or stream is located and which is adjacent to any municipality in which the withdrawal will take place and to each person specified in s. 281.35 (5) (b) or (6) (f), if applicable.

30.18(4)(b) (b) If a hearing on the application for a permit is conducted as a part of a hearing under s. 293.43, the notice and hearing provisions in that section supersede the notice and hearing provisions of par. (a).

30.18(5) (5) Approval of application.

30.18(5)(a) (a) Streams. The department shall approve an application for a permit required under sub. (2) (a) if the department determines both of the following:

30.18(5)(a)1. 1. That the proposed withdrawal will not injure any public rights in navigable waters.

30.18(5)(a)2. 2. That the water to be withdrawn is surplus water, or if it is not surplus water, that all riparians who may be adversely affected by the withdrawal have consented to the proposed withdrawal.

30.18(5)(b) (b) Streams or lakes. The department shall approve an application for a permit required under sub. (2) (b) if the grounds for approval specified under s. 281.35 (5) (d) are met and, if the permit is also required under sub. (2) (a), if the department makes the determinations specified under par. (a).

30.18(6) (6) Permits; use of water; reporting; review.

30.18(6)(a) (a) Contents of permit. The department shall specify on each permit issued under this section the quantity of water that may be withdrawn and the times during which water may be withdrawn. In addition, if the permit is one which is required under sub. (2) (b), the permit shall comply with s. 281.35 (6).

30.18(6)(b) (b) Use of water. A person issued a permit under this section for the purpose of irrigation or agriculture may use the water on any land contiguous to the permittee’s riparian land, but may not withdraw more water than it did before August 1, 1957, without applying to the department for a modification of the permit.

30.18(6)(c) (c) Reporting required. The department shall require each permittee under this section to report its volume and rate of withdrawal and its volume and rate of water loss, if any, in the form and at the times specified by the department.

30.18(6)(d) (d) Review of permits. If the permit is one that is required under sub. (2) (a), but not under sub. (2) (b), and the permit was issued on or after August 1, 1957, the department shall review the permit at least once every 5 years. If the permit is one that is required under sub. (2) (b), the department shall review the permit as required under s. 281.35 (6) (b).

30.18(6m) (6m) Revocation.

30.18(6m)(a) (a) The department shall revoke a permit issued under sub. (5) (a), which is not subject to sub. (2) (b), if it finds any of the following:

30.18(6m)(a)1. 1. That the water being withdrawn is no longer surplus water, except that the department may allow the withdrawal to continue if all riparians adversely affected by the withdrawal continue to consent to it.

30.18(6m)(a)2. 2. If the withdrawal is from a stream designated by the department as a trout stream, that the revocation is desirable for conservation purposes.

30.18(6m)(b) (b) The department may revoke any permit issued under sub. (5) (a), which is not subject to sub. (2) (b), if it finds that the withdrawal is detrimental to the stream from which the water is withdrawn.

30.18(6m)(c) (c) The department may revoke a permit issued under sub. (5) (b) only as provided under s. 281.35 (6).

30.18(7) (7) Prerequisites to project construction. After an application under this section has been filed with the department, the applicant may enter any land through which it is proposed to withdraw or transfer the water for the purposes of making any surveys required for drafting the plans for the project, but no work shall be commenced on the canal, headworks or other structures necessary for the project until the plans for the same have been approved by the department. Any person having received a permit required under sub. (2) (a) may construct upon the land of another the canal and other works authorized by the permit after the damage which will be sustained by the owner or owners of such land has been satisfied, or has been determined as provided for in ch. 32, and after the final sum so determined and all costs have been paid to the persons entitled thereto or to the clerk of the circuit court on their account.

30.18(8) (8) Department may raise water elevations. If after examination and investigation the department determines that it is necessary to raise water elevations in any navigable stream or lake for conservation purposes, the department may, if funds are available from any source other than license fees, determine and establish the elevations to which the water may be raised or maintained, but the water elevation may not be established below the normal elevation. If any lands are damaged by raising the water levels above normal and the department cannot acquire the right to flow the lands by agreement with the owner, the department may acquire the lands or the right to flow the lands by condemnation under ch. 32.

30.18(9) (9) Judicial review. Any order or determination made by the department is subject to judicial review as prescribed in ch. 227.

30.18 History History: 1979 c. 221; 1985 a. 60; 1987 a. 374; 1995 a. 227; 2003 a. 118; 2007 a. 227; 2011 a. 167.

30.18 Cross-reference Cross-reference: See also chs. NR 142 and 300, Wis. adm. code.

30.18 Annotation This section is to be strictly construed. Any diversion of water lawful at common law is permitted without a permit unless it is for irrigation, agriculture, or to maintain normal water levels. State ex rel. Chain O’Lakes Protective Association v. Moses, 53 Wis. 2d 579, 193 N.W.2d 708.

30.18 Annotation This section applies to diversions from nonnavigable, as well as from navigable, streams. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734 (1974).

30.18 Annotation The legislature abrogated the common law riparian right of irrigation and substituted the permit procedure under sub. (3). Omernick v. Department of Natural Resources, 71 Wis. 2d 370, 238 N.W.2d 114 (1974).

30.18 Annotation Section 94.26 exempts cranberry growers from permit requirements of this section. State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980).

30.19 30.19 Enlargement and protection of waterways.

30.19(1b) (1b) Definition. In this section:

30.19(1b)(a) (a) “Artificial water body” means a body of water that does not have a history of being a lake or stream or of being part of a lake or stream.

30.19(1b)(b) (b) “Bank” means either of the following:

30.19(1b)(b)1. 1. Land area that is, in size, the greater of the following:

30.19(1b)(b)1.a. a. The portion of land surface that extends 75 feet landward from the ordinary high-water mark of any navigable waterway.

30.19(1b)(b)1.b. b. The portion of land surface extending landward from the ordinary high-water mark of any navigable waterway to the point where the slope is less than 12 percent.

30.19(1b)(b)2. 2. A bank as determined by the department by rule under sub. (1d).

30.19(1b)(c) (c) “Priority navigable waterway” means any of the following:

30.19(1b)(c)1. 1. A navigable waterway, or a portion of a navigable waterway, that is identified as an outstanding or exceptional resource water under s. 281.15.

30.19(1b)(c)2. 2. A navigable waterway, or a portion of a navigable waterway, identified as a trout stream.

30.19(1b)(c)3. 3. A lake that is less than 50 acres in size.

30.19(1b)(c)4. 4. Any other navigable waterway, or portion of a navigable waterway, that the department has determined, by rule, contains sensitive fish and aquatic habitat and that the department has specifically identified by rule.

30.19(1c) (1c) Definition; applicability. The definition of “bank” under sub. (1b) does not apply after the 90th day after the day the rule under sub. (1d) is submitted to legislative council staff under s. 227.15 (1) or the day that the rule promulgated under sub. (1d) goes into effect, whichever is earlier.

30.19(1d) (1d) Rules; banks of navigable waterways.

30.19(1d)(a) (a) The department shall promulgate a rule to determine what constitutes a bank for purposes of this section in accordance with all of the following:

30.19(1d)(a)1. 1. For priority navigable waterways, the department shall promulgate a rule stating that a bank is, in size, the greater of the following:

30.19(1d)(a)1.a. a. The portion of land surface that extends a certain distance landward from the ordinary high-water mark of the navigable waterway, but the distance under the rule may not exceed 300 feet.

30.19(1d)(a)1.b. b. The portion of land surface that extends landward from the ordinary high-water mark of the navigable waterway to the point where the slope is measured to be a certain percentage, but the percentage under the rule may not be less than 10 percent.

30.19(1d)(a)1m. 1m. The rule promulgated under subd. 1. may apply to specific priority navigable waterways or to classes of priority navigable waterways.

30.19(1d)(a)2. 2. For navigable waterways that are not priority navigable waterways, the department shall promulgate a rule stating that a bank is, in size, the greater of the following:

30.19(1d)(a)2.a. a. The portion of the land surface that extends a certain distance landward from the ordinary high-water mark of the navigable waterway, but the distance under the rule may not exceed 75 feet.

30.19(1d)(a)2.b. b. The portion of land surface that extends landward from the ordinary high-water mark of the navigable waterway to the point where the slope is measured to be a certain percentage, but the percentage under the rule may not be less than 12 percent.

30.19(1d)(a)2m. 2m. The rule promulgated under subd. 2. may apply to specific navigable waterways or to classes of navigable waterways.

30.19(1d)(am) (am) The rule under this subsection may not require or allow the department to deviate from, or create an exemption from, the requirements of the rules promulgated under this section in determining what constitutes a bank at an individual, specific site.

30.19(1d)(b) (b) In promulgating the rule under this subsection, the determination under this subsection of what constitutes a bank may not include any land where the slope or drainage of the land into the navigable waterway is completely interrupted.

30.19(1d)(c) (c) To the extent practicable, the rule under this subsection shall be consistent with rules promulgated by the department that relate to shorelands, as defined in s. 59.692 (1) (b), and floodplains, and rules promulgated under s. 281.16 (2) that relate to protective areas for wetlands and waterways.

30.19(1d)(d) (d) In promulgating the rule under this subsection, the department shall consider public rights and interests for the purpose of furthering the public trust in navigable waters.

30.19(1g) (1g) Permits required. Unless an individual or a general permit has been issued under this section or authorization has been granted by the legislature, no person may do any of the following:

30.19(1g)(a) (a) Construct, dredge, or enlarge any artificial water body that connects with an existing navigable waterway.

30.19(1g)(am) (am) Construct or enlarge any part of an artificial water body that is or will be located within 500 feet of the ordinary high-water mark of, but that does not or will not connect with, an existing navigable waterway. An artificial water body that meets the requirements of this paragraph includes a stormwater management pond that does not discharge into a navigable waterway except as a result of storm events.

30.19(1g)(c) (c) Grade or remove topsoil from the bank of any navigable waterway where the area exposed by the grading or removal will exceed 10,000 square feet.

30.19(1m) (1m) Exemptions. A person is exempt from the permit requirements under this section for any of the following:

30.19(1m)(a) (a) The construction or repair of any public highway.

30.19(1m)(b) (b) Any agricultural use of land.

30.19(1m)(bm) (bm) The maintenance or repair of an artificial water body or fish farm that is registered with the department of agriculture, trade and consumer protection, except that this exemption does not apply to the requirement under sub. (1g) (c).

30.19(1m)(c) (c) An activity that affects a navigable inland lake that is located wholly or partly in any county having a population of 750,000 or more.

30.19(1m)(cm) (cm) Any activity that affects a portion of Lake Michigan or of Lake Superior that is located within a county having a population of 750,000 or more.

30.19(1m)(d) (d) Any activity that affects a portion of a navigable stream that is located within a county having a population of 750,000 or more.

30.19(1m)(dm) (dm) The dredging of any part of an artificial water body that does not connect with a navigable waterway. An artificial water body that meets the requirements of this paragraph includes a stormwater management pond that does not discharge into a navigable waterway except as a result of storm events.

30.19(1m)(e) (e) Any work required to maintain the original dimensions of an enlargement of an artificial water body done pursuant to a permit or legislative authorization under sub. (1g) (a) or (am).

30.19(1m)(f) (f) Any land grading activity authorized under a stormwater discharge permit issued under s. 283.33.

30.19(1m)(g) (g) Any land grading activity authorized by a permit issued by a county under a shoreland zoning ordinance enacted under s. 59.692.

30.19(1m)(h) (h) Any activity that affects a portion of a navigable stream and that is related to the construction, access, or operation of a new manufacturing facility within an electronics and information technology manufacturing zone designated under s. 238.396 (1m).

30.19(3r) (3r) General permits. The department shall issue statewide general permits under s. 30.206 that authorize persons to do all of the following:

30.19(3r)(a) (a) Engage in an activity specified in sub. (1g) (am) substantially in accordance with best management practices required for storm water discharge permits under ch. 283.

30.19(3r)(b) (b) Engage in an activity specified in sub. (1g) (c).

30.19(4) (4) Individual Permits.

30.19(4)(a) (a) For activities that are not exempt under sub. (1m) and that are not subject to a general permit under sub. (3r), a person may apply to the department for an individual permit in order to engage in an activity for which a permit is required under sub. (1g).

30.19(4)(b) (b) The notice and hearing provisions of s. 30.208 (3) to (5) apply to an application under par. (a).

30.19(4)(c) (c) The department shall issue an individual permit pursuant to an application under par. (a) if the department finds that all of the following requirements are met:

30.19(4)(c)1. 1. The activity will not be detrimental to the public interest.

30.19(4)(c)2. 2. The activity will not cause environmental pollution, as defined in s. 299.01 (4).

30.19(4)(c)3. 3. Any enlargement connected to a navigable waterway complies with all of the laws relating to platting of land and sanitation.

30.19(4)(c)4. 4. No material injury will result to the riparian rights of any riparian owners of real property that abuts any water body that is affected by the activity.

30.19(4)(d) (d)

30.19(4)(d)1. 1. In this paragraph, “covered municipality” has the meaning given in s. 281.16 (1) (br).

30.19(4)(d)2. 2. If the applicant is a covered municipality seeking an individual permit for the construction of a stormwater management pond in an artificial water body, whether navigable or nonnavigable, for the purpose of achieving compliance with performance standards specified in a permit under s. 283.33 (1) (b), (c), (cg), or (cr) or with an approved total maximum daily load under 33 USC 1313 (d) (1) (C), the department shall, in making its determinations under par. (c), take into consideration the sediment control in and water quality improvements to the watershed as a whole that result from the stormwater management pond.

30.19(5) (5) Requirement for public access. A permit issued under this section to construct an artificial water body and to connect it to a navigable waterway shall require that the navigable portion of the artificial water body be a public waterway if the connecting portion is navigable. The department may impose such further conditions in the permit on public access as it finds reasonably necessary to protect public health, safety, welfare, rights and interest and to protect private rights and property.

30.19 History History: 1971 c. 273; 1979 c. 34 s. 2102 (39) (g); 1979 c. 221; 1983 a. 36; 1987 a. 374; 1995 a. 227; 2003 a. 118; 2011 a. 167; 2013 a. 1; 2015 a. 387; 2017 a. 21, 58, 365.

30.19 Cross-reference Cross-reference: See also chs. NR 300, 340, 341, 343, and 353, Wis. adm. code.

30.19 Annotation The department of natural resources has subject matter jurisdiction to issue after-the-fact permits, as well as those issued prior to the commencement of construction. Capoun Revocable Trust v. Ansari, 2000 WI App 83, 234 Wis. 2d 335, 610 N.W.2d 129, 99-1146.