Chapter 31

31.34   Flow of water regulated.

31.35   Dams in areas leased by county; restrictions; control by circuit judge; when.

31.36   Levee commissioners.

31.38   Municipal authority to construct and maintain dams.

31.385   Dam safety; aid program.

31.387   Dam rehabilitation projects.

31.39   Fees for permits, approvals and hearings.

31.99   Parties to a violation.

Ch. 31 Cross-reference Cross-reference: See also ch. NR 300, Wis. adm. code.

31.01 31.01 Definitions. Terms used in this chapter are defined as follows:

31.01(1) (1) “Corporation” means a private corporation organized under the laws of this state.

31.01(2) (2) “Department” means the department of natural resources.

31.01(3) (3) “Grantee” means the person, firm, corporation or municipality to whom a permit is granted, and all subsequent owners of the grant.

31.01(4) (4) “Municipality” means any town, village, city or county in the state.

31.01(5) (5) “Navigable waters” means all waters declared navigable by ch. 30.

31.01(6) (6) “Permit”, unless the context otherwise requires, means legislative permission granted under s. 31.06 to construct, operate and maintain a dam in or across navigable waters, or under s. 31.08 to continue the operation and maintenance of any dam so situated which was constructed before such legislative permits were required.

31.01 History History: 1983 a. 189.

31.02 31.02 Powers and duties of department.

31.02(1) (1) The department, in the interest of public rights in navigable waters, to promote safety, and to protect life, health, property, property values, and economic values may regulate and control the level and flow of water in all navigable waters and may erect, or may order and require bench marks to be erected, upon which shall be designated the maximum level of water that may be impounded and the lowest level of water that may be maintained by any dam heretofore or hereafter constructed and maintained and which will affect the level and flow of navigable waters; and may by order fix a level for any body of navigable water below which the same shall not be lowered except as provided in this chapter; and shall establish and maintain gauging stations upon the various navigable waters of the state and shall take other steps necessary to determine and record the characteristics of such waters.

31.02(2) (2) The department may investigate and determine all reasonable methods of construction, operation, maintenance, and equipment for any dam so as to conserve and protect all public rights in navigable waters and so as to protect life, health and property; and the construction, operation, maintenance and equipment, or any or all thereof, of dams in navigable waters shall be subject to the supervision of the department and to the orders and regulations of the department made or promulgated under this chapter.

31.02(3) (3) The department or any member or any agent or employee thereof shall at all times be accorded free access to any and all parts of any dam and appurtenances constructed or maintained in navigable waters and may enter upon any property to investigate a waterway or use of water from any lake or stream.

31.02(4) (4) The department may order and require any dam heretofore or hereafter constructed to be equipped and operated, in whole or part, as follows:

31.02(4)(a) (a) With slides and chutes for the passage of logs and timber products.

31.02(4)(b) (b) With a lock, boat hoist, marine railway or other device of a size and construction sufficient to accommodate navigation.

31.02(4)(c) (c) With good and sufficient fishways or fish ladders, or in lieu thereof the owner may be permitted to enter into an agreement with the department to pay for or to supply to the state of Wisconsin annually such quantities of game fish for stocking purposes as may be agreed upon by the owner and the department.

31.02(4)(d) (d) With spillways or flood gates capable of permitting the passage through or over the same of freshets and floods during all seasons of the year.

31.02(4)(e) (e) With booms, piers or other protection works ample to safeguard flood gates from trash or other floating material.

31.02(4d) (4d) The department may not issue, amend, or revise an order under this section or under s. 182.71 (7) (b) with respect to a dam that, on June 1, 2015, met all of the following conditions unless the appropriate standing committee in each house of the legislature, as determined by each presiding officer, approves the order, amendment, or revision:

31.02(4d)(a) (a) The dam regulated the water levels of one or more lakes located in Vilas County.

31.02(4d)(b) (b) The dam was located in whole or in part in a city, village, or town with an equalized value exceeding $500,000,000.

31.02(4d)(c) (c) The dam’s impoundment area at normal pool elevation exceeded 4,000 acres.

31.02(4d)(d) (d) The dam was continuously subject to a lake level order for a period of at least 40 years.

31.02(4g) (4g) The department may not impose the requirement under sub. (4) (c) on an owner of a dam unless all of the following apply:

31.02(4g)(a) (a) The rules promulgated under sub. (4r) are in effect.

31.02(4g)(b) (b) The federal government or the state implements a program to provide cost-sharing grants to owners of dams for equipping dams with fishways or fish ladders and a grant is available to the dam owner under the program.

31.02(4r) (4r) The department shall promulgate rules specifying the rights held by the public in navigable waters that are dammed. The rules shall include provisions on the rights held by the public that affect the placement of fishways or fish ladders in navigable waters that are dammed.

31.02(5) (5) The department shall give written notice to the public service commission of any hearing under this chapter involving public utilities.

31.02(6) (6) Except as provided in sub. (7m), the department may operate, repair and maintain the dams and dikes constructed across drainage ditches and streams in drainage districts, in the interest of drainage control, water conservation, irrigation, conservation, pisciculture and to provide areas suitable for the nesting and breeding of aquatic wild bird life and the propagation of fur-bearing animals.

31.02(7) (7) The department shall confer with the drainage commissioners in each drainage district on the formation of policies for the operation and maintenance of the dams; in districts having no commissioners, the department shall confer in like manner with the committee appointed by the county board, if any, to represent either such drainage district, or in the event that the drainage district is dissolved, to represent the interests of the county in all matters whatsoever pertaining to water conservation and control within the area which theretofore constituted such drainage district. This subsection does not apply to the Duck Creek Drainage District.

31.02(7m) (7m) The drainage board for the Duck Creek Drainage District shall operate, repair and maintain dams, dikes and other structures in district drains that the board operates in the Duck Creek Drainage District in compliance with ch. 88 and any rules promulgated by the department of agriculture, trade and consumer protection under ch. 88. If a county drainage board fails to perform its duties under this subsection, the department of natural resources may exercise its authority under subs. (6), (8) and (9).

31.02(8) (8) The department shall give careful consideration to the suggestions of the drainage commissioners or committee of the county board, but the final decision in all matters under consideration shall rest with the department.

31.02(9) (9) So far as seems practicable, the department may designate or employ the drainage commissioners of any drainage district, or the committee of the county board above referred to, to operate the dams in such district or area formerly comprising a drainage district or perform services in the repair and maintenance of the dams, dykes and other works.

31.02 History History: 1999 a. 9; 2001 a. 105; 2007 a. 96; 2015 a. 55, 387.

31.02 Cross-reference Cross-reference: See also chs. NR 333 and 353, Wis. adm. code.

31.02 Annotation Ordering a riparian owner to excavate and maintain a ditch to regulate lake levels was an unconstitutional taking of property. Otte v. DNR, 142 Wis. 2d 222, 418 N.W.2d 16 (Ct. App. 1987).

31.02 Annotation Sub. (1), 2011 stats., makes a distinction between the DNR’s public trust authority and its police power authority. Only part of sub. (1) embodies the public trust doctrine. If the statute read only that the department “in the interest of public rights in navigable waters,” may regulate and control the level and flow of water in all navigable waters, the statute would be seen as a direct enforcement mechanism for the public trust in navigable waters. But department authority to regulate and control the flow of water in all navigable waters “to promote safety and protect life, health and property” following “or,” gives distinct and different authority to consider interests affected by the level of the navigable waters. Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

31.02 Annotation DNR may consider wetland water quality standards in Wis. Admin. Code ch. NR 103 when making a water level determination under sub. (1), 2011 stats. Section 281.92, 2011 stats., does not preclude the DNR from applying the wetland water quality standards in ch. NR 103 or other parts of ch. 281, when appropriate, after weighing factors under sub. (1). Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

31.02 Annotation It is unreasonable to conclude, given the history, context, and interpretations of “protect . . . property,” that economic impacts cannot be considered when making a water level determination under sub. (1), 2011 stats. Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

31.02 Annotation Artificial lakes and land subdivisions. Kusler, 1971 WLR 369.

31.02 Annotation A Breach of Trust: Rock-Koshkonong Lake District v. State Department of Natural Resources and Wisconsin’s Public Trust Doctrine. Mittal. 98 MLR 1468 (2015).

31.03 31.03 Permits for the Lower Wisconsin State Riverway. For activities in the Lower Wisconsin State Riverway, as defined in s. 30.40 (15), no person obtaining a permit under this chapter may start or engage in the activity for which the permit was issued unless the person obtains any permit that is required for the activity under s. 30.44 or 30.445.

31.03 History History: 1989 a. 31, 359.

31.04 31.04 Permits for dams. Permits to construct, operate and maintain dams may be granted to persons, corporations or municipalities under this chapter.

31.045 31.045 Permits for dams that affect drained lands.

31.045(1) (1) For the construction, raising or enlarging of a dam that will affect the water level in a drainage district organized under ch. 88, no person who obtains a permit under this chapter may construct, raise or enlarge the dam unless the person obtains the approval of the drainage board with jurisdiction of the drainage district.

31.045(2) (2) For the construction, raising or enlarging of a dam that will affect the water level in a drain, for an individual landowner, that is constructed under an order issued under s. 88.94, no person who obtains a permit under this chapter may construct, raise or enlarge the dam unless the person obtains the approval of the landowner.

31.045 History History: 1993 a. 456.

31.05 31.05 Applications for permits to construct. Any person, firm, corporation or municipality desiring a permit to construct, operate and maintain a dam shall file with the department a written application therefor, setting forth:

31.05(1) (1) The name of the navigable waters in or across which a dam is proposed to be constructed and a specific description of the site for the proposed dam.

31.05(2) (2) The purpose or purposes for which the proposed dam is to be constructed, operated and maintained.

31.05(3) (3) In case the application is for a permit to construct, operate and maintain a dam for a private purpose, proof satisfactory to the department that the applicant owns or has an enforceable option to purchase the described dam site and at least 65 percent of the land to be flowed, or the flowage rights on at least 65 percent of such land. This subsection shall not apply to a person who has the power of eminent domain.

31.05(4) (4) A general description of the proposed dam, of the material to be used in the construction thereof, and a general description of all booms, piers, and other protection works to be constructed in connection therewith.

31.05(5) (5) The approximate amount of hydraulic power that the proposed dam is capable of developing.

31.05(6) (6) The name of the city, village or town in which the site of the proposed dam will be located and the name of the nearest existing dam above and below the site of the proposed dam.

31.05(7) (7) A map on the scale of not less than one inch per 1,000 feet showing the lands that may be affected by the construction, operation or maintenance of the proposed dam, or by any flowage that may be caused thereby and approximately the outline of such flowage, which map shall indicate the ownership of each tract of land within the flowage.

31.05(8) (8) Such additional information of any nature that may be required by the department.

31.05 History History: 1975 c. 349; 1993 a. 246.

31.06 31.06 Hearing.

31.06(1) (1) Upon receipt of an application for a permit under s. 31.05 the department may order a hearing or it may mail a notice that it will proceed on the application without public hearing unless a request for a public hearing is filed as provided in this section. The notice shall be mailed to the clerk of each municipality directly affected by the proposed dam. The department may give further or other notice as it considers proper. The department shall mail a copy of the notice to the applicant who shall cause the notice to be published in each county in which affected riparian lands are located as a class 1 notice, under ch. 985. If a hearing is not requested in writing within 30 days after mailing of the notice, the department may waive the hearing.

31.06(2) (2) 

31.06(2)(a) (a) If a hearing is ordered, the department shall, not less than 10 days before such hearing, mail written notice thereof to each person notified under sub. (1).

31.06(2)(b) (b) The department shall require the applicant to publish a class 1 notice under ch. 985, of the hearing in each county in which affected riparian lands are located, and may require the applicant to mail such other notices as it deems necessary. Proof of publication and proof of mailing under this subsection and sub. (1) shall be filed with the department.

31.06(3) (3) 

31.06(3)(a) (a) At a hearing under this section, or any adjournment of the hearing, the department shall consider the application and take evidence offered by the applicant and other persons supporting or opposing the proposed dam. The department may require the amendment of the application.

31.06(3)(b) (b) If it appears that the construction, operation or maintenance of the proposed dam is in the public interest, considering ecological, aesthetic, economic and recreational values, the department shall so find and grant a permit to the applicant, provided the department also finds that the applicant has complied with s. 31.14 (2) or (3) and, where applicable, with s. 31.05 (3), based on the department’s own estimate of the area of the flowage.

31.06(3)(c) (c)

31.06(3)(c)1. 1. The enjoyment of natural scenic beauty and environmental quality are declared to be public rights to be considered along with other public rights and the economic need of electric power for the full development of agricultural and industrial activity and other useful purposes in the area to be served. In considering public rights to the recreational use and natural scenic beauty of the river, the department shall investigate the potentialities of the lake and lakeshore created by the flowage and shall weigh the recreational use and scenic beauty of the lake and lakeshore against the known recreational use and scenic beauty of the river in its natural state. The department shall further weigh the known recreational use and scenic beauty of the particular section of river involved against the known recreational use and scenic beauty of other sections of the same river and other rivers in the area remaining in their natural state without regard to plans of other dams subsequently filed or to be filed.

31.06(3)(c)2. 2. The department shall deny the permit if it finds any of the following:

31.06(3)(c)2.a. a. It appears that the river in its natural state offers greater recreational facilities and scenic value for a larger number of people than can by proper control of the flowage level be obtained from the use of the lake and lakeshore and that the remaining sections of the river and other rivers in the area in their natural state provide an insufficient amount of recreational facilities and scenic beauty, and it further appears that the economic need of electric power is less than the value of the recreational and scenic beauty advantages of the river in its natural state.

31.06(3)(c)2.b. b. The permit will cause environmental pollution, as defined in s. 299.01 (4).

31.06(4) (4) Not more than 20 days after receiving notice as provided in sub. (1) each county clerk may and upon request of the chairperson of the county board shall give written notice as provided in s. 59.11 (2) of a special meeting of the county board to be held at a time and place set by the county clerk, not less than 2 weeks nor more than 3 weeks after mailing of such notice, for the purpose of making findings as hereinafter provided. The county clerk shall give notice of the time, place and purpose of such special meeting to the department and to the applicant, who shall cause the same to be published in the county, as a class 2 notice, under ch. 985, and the applicant shall cause a copy thereof to be mailed at least 7 days prior to such special meeting to every person interested in any lands that will be affected by the proposed dam and whose post-office address can by due diligence be ascertained. Proof of such publication and notice shall be filed with the county clerk. At such special meeting the county board shall hear evidence offered by the applicant and other persons and shall find and determine by a majority vote of the county board members-elect whether the lake and lake shore created by the flowage or the river in its natural state offers greater recreational facilities and scenic beauty value for the larger number of people. The county clerk shall forthwith certify such finding and determination to the department. The jurisdiction and findings of each county board shall apply to that part of the proposed dam and flowage which is within the county.

31.06(5) (5) 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 this section.

31.06 History History: 1971 c. 273; 1973 c. 90; 1979 c. 34 s. 2102 (39) (g); 1979 c. 221; 1983 a. 192; 1995 a. 201, 227; 1999 a. 83.

31.06 Cross-reference Cross-reference: See also ch. NR 300, Wis. adm. code.

31.07 31.07 Applications for permits to operate and maintain existing dams. Any person, firm, corporation or municipality desiring a permit to operate and maintain a dam constructed in or across navigable waters without legislative permission prior to July 10, 1915, shall file with the department a written application therefor setting forth:

31.07(1) (1) The name of the navigable waters in or across which such dam was constructed and a specific description of the dam site.

31.07(2) (2) The year in which the construction of the dam was completed, and a detailed description of the dam and equipment, including the maximum height or head of water that may be maintained thereby and the kind and character of material of which the dam is constructed.

31.07(3) (3) The purpose for which the dam was theretofore operated and is operated at the time application hereunder is made, and the purpose for which it is proposed to operate and maintain the dam.