Chapter 31

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.

31.07(4) (4) The approximate amount of hydraulic power developed thereby.

31.07(5) (5) The name of the city, village or town in which the dam site is located and the name of the nearest existing dam above and below the dam site.

31.07(6) (6) Such additional information of any nature whatsoever as may be required by the department.

31.07 History History: 1993 a. 246.

31.08 31.08 Hearing. Upon receipt of an application under s. 31.07 procedure shall be had substantially as required by s. 31.06, and if the department finds that such operation and maintenance does not materially obstruct existing navigation or violate other public rights and will not endanger life, health or property, a permit is hereby granted to the applicant, provided the department also finds that the applicant has complied with s. 31.14 (2) or (3).

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

31.09 31.09 Proposals to accompany applications. Each applicant for a permit to construct, operate and maintain a dam for the purpose of developing power or for the purpose of aiding in the development of power by other dams through the creation of reservoirs or otherwise, and each applicant for a permit to construct, operate and maintain a dam for any other purpose whatsoever, which is capable of developing 50 theoretical horsepower or more available for 50 percent of the time throughout the year, shall file with an application for a permit, in addition to the requirements of s. 31.05 or s. 31.07, as the case may be, the following proposals:

31.09(1) (1) That the department prior to the time the permit is granted shall value the dam site and all flowage rights and other property necessary for the purposes set forth in the application for the permit, whether the same or any part thereof are owned by the applicant or not.

31.09(2) (2) That the department shall audit all outlays for property and for the construction of the dam, buildings, and other structures and works constructed, maintained, and operated and used and useful under the permit.

31.09(3) (3) That the permit, if granted, shall be granted and accepted subject to the express condition that the state of Wisconsin, if it shall have the constitutional power, or any municipality, on not less than one year’s notice, at any time after the expiration of 30 years after the permit becomes effective, may acquire all of the property of the grantee, used and useful under the permit, by paying therefor, the cost of reproduction in their then existing condition of all dams, works, buildings, or other structures or equipment, used and useful under the permit, as determined by the department, and by paying in addition thereto the value of the dam site and all flowage rights and other property as determined by the department prior to the time the permit was granted, as provided in sub. (1), plus the amounts paid out for additional flowage rights, if any, acquired after the valuation made by the department as provided in sub. (1); and that the applicant waives all right to any further compensation.

31.09 History History: 1991 a. 316.

31.095 31.095 Water power permits, condition precedent.

31.095(1) (1) Except where the stream to be improved forms a boundary line between this and another state, no permit shall be granted or transferred in accordance with this chapter until the applicant has filed with both the department and the public service commission, in addition to all other things required by law to be filed, an agreement setting forth:

31.095(1)(a) (a) That, in the event any electric energy generated under said permit shall be transmitted or conveyed beyond the confines of this state to be there sold, the applicant will furnish to any resident of this state or any corporation domiciled therein electric energy at reasonable rates to be determined by the commission, provided that the commission after public hearing shall find that public convenience and necessity require such service.

31.095(1)(b) (b) That the rate as determined by the commission shall in no event exceed the rate charged by applicant for similar service supplied under like conditions for the energy so transmitted outside the state.

31.095(2) (2) The commission may hold hearings, fix rates and do all things necessary and convenient to carry out the purposes of sub. (1).

31.10 31.10 Permit not to be valued. Each and every permit is granted, and shall be conclusively deemed to be accepted, subject to the condition that no element of value whatever shall ever attach to or be allowed for such permit in and of itself in the sale or acquisition of the property used and useful under such permit or otherwise.

31.11 31.11 Certificate of terms and forfeiture of permits. The department shall issue to every grantee of a permit a certificate evidencing a grant of the permit allowed by law. Every permit, and every franchise heretofore granted by the legislature, to construct, maintain and operate a dam shall become null and void, unless the dam thereby authorized be completed within 5 years from the time when the permit or the franchise was granted; but the department, for good cause, may extend such time for a period not exceeding 2 years.

31.12 31.12 Map, profile and plans.

31.12(1) (1) The grantee of a permit under s. 31.06, to construct, maintain and operate a dam, before commencing any work of construction authorized by the permit, shall submit to the department a complete map and profile on the scale of not less than one inch per 1,000 feet showing the land that may be affected by the construction and maintenance of the dam, or by any flowage that may be caused thereby, and the outline of the flowage, and such other hydrographic and topographic data as the department may prescribe, and shall also file complete detailed plans and specifications for the proposed dam, including all booms, piers, or other protection works.

31.12(2) (2) The department shall examine the map, profile, plans and specifications; shall hear the grantee thereon and may reject the same or any part thereof, if unsatisfactory or incomplete, or may suggest and require modifications thereof. If the map, profile and plans and specifications are satisfactory and complete, or, if the same shall be modified as suggested and required, the department shall so find and approve the same, and thereupon the grantee may construct the proposed dam in accordance therewith, but the department may, at any time during the construction of any dam and in the interest of the public safety, or of any public rights in navigable waters, authorize, order or require such changes in the plans and specifications and the construction of the dam as shall be necessary.

31.12(3) (3) If the department, in the case of an application for a permit to construct a dam with a capacity of less than 250 hydraulic horsepower at ordinary stage of water, shall find that the information and data furnished in the original or amended application is sufficient, the applicant shall not be required to furnish the additional or more detailed information or data specified in subs. (1) and (2). The department may, however, at any time during the construction of any such dam authorize, order or require changes in the construction or the method or plan of construction thereof, as provided in sub. (2).

31.12(4) (4) Within 10 days after the completion of any dam the grantee shall file with the department a verified statement that the same was constructed in accordance with the plans and specifications approved by the department; or in case no plans and specifications were required to be filed, then that the dam was constructed in accordance with the description contained in the application.

31.12 Cross-reference Cross-reference: See also ch. NR 353 and s. NR 335.11, Wis. adm. code.

31.12(5) (5) The department shall establish an expedited procedure for approval of plans for low hazard dams, as defined in s. 31.19 (1g) (b), under this section. The expedited procedure shall apply, in lieu of the procedure under this section, if the department determines that all of the following are satisfied:

31.12(5)(a) (a) The plan design is of a common construction and size or is for a minor addition to an existing dam.

31.12(5)(b) (b) The plan design is submitted by a registered professional engineer.

31.12(5)(c) (c) The plan design is submitted by a person who has designed similar dams and none of those similar dams has caused adverse impacts to the environment.

31.12(5)(d) (d) The plan design contains no unusual siting requirements or other unique design features.

31.12(5)(e) (e) The plan design is for a dam that is located entirely on land that the permit grantee owns or that is located entirely on land for which the permit grantee has acquired an easement.

31.12(5)(f) (f) The plan design is not likely to have an adverse impact on the environment.

31.12 History History: 2011 a. 167.

31.13 31.13 Raising or enlarging existing dams.

31.13(1) (1) If the owner of any existing dam wishes to raise or enlarge the same, the owner may apply to the department for permission so to do, but the permission granted under this section shall be in amendment of any existing franchise, license, or permit previously granted authorizing the construction or maintenance of such dam only to the extent of giving the right so to raise or enlarge such dam, and shall in no way enlarge, alter, abridge or nullify property rights, privileges or obligations as to such dam, or the maintenance or operation thereof theretofore acquired or incurred. In addition to the requirements of s. 31.05 (1), (6) and (7), the owner’s application shall state:

31.13(1)(a) (a) The year in which the dam was completed.

31.13(1)(b) (b) If constructed by legislative permission, a statement of the act of the legislature authorizing the same.

31.13(1)(c) (c) A detailed description of the dam, including the maximum height or head of water that may be maintained thereby and the kind and character of material of which the same is constructed.

31.13(1)(d) (d) The purpose for which such dam has been and is now used and the purpose for which it is proposed to use the same.

31.13(1)(e) (e) The approximate amount of hydraulic power developed thereby.

31.13(1)(f) (f) Such additional information of any nature whatsoever as the department may require.

31.13(2) (2) Upon receipt of an application under this section procedure shall be had substantially as required by s. 31.06; and if the department finds that the dam, raised or enlarged or rebuilt, or rebuilt, enlarged and raised in accordance with the application, will not materially obstruct existing navigation or violate other public rights, and will not endanger life, health or property, and that the applicant has complied with s. 31.14 (2) or (3), permission is hereby granted to raise or enlarge or rebuild, or rebuild, enlarge and raise the same in accordance with the application.

31.13 History History: 1991 a. 316.

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