Chapter 31

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.

31.14 31.14 Proof of ability to maintain dams required.

31.14(1) (1) It is the policy of this section to preserve public rights in navigable waters, including those created by dams, and to provide a means of maintaining dams and the developments which have been made adjacent to the flowage of such dams.

31.14(2) (2) Except as provided in sub. (3), a permit shall not be granted under s. 31.06, 31.08 or 31.13:

31.14(2)(a) (a) Unless the applicant furnishes to the department proof of ability to operate and maintain the dam in good condition, either by the creation of a special assessment district under ss. 31.38 and 66.0703, or by any other means which in the department’s judgment will give reasonable assurance that the dam will be maintained for a reasonable period of time not less than 10 years; or

31.14(2)(b) (b) If a majority of the municipalities in which 51 percent or more of the dam or flowage is or will be located files with the department, prior to the granting of the permit, their objections to the granting of such permit in the form of resolutions duly adopted by the governing bodies of such municipalities.

31.14(3) (3) Subsection (2) does not apply if the applicant complies with each of the following requirements:

31.14(3)(a) (a) Furnishes proof satisfactory to the department that the applicant owns or has an enforceable option to purchase all the land which is or will be flowed by the impoundment, together with the shoreline and an immediately adjacent strip of land at least 60 feet in width, but the department may in a particular case permit a narrower strip where the 60-foot minimum is impractical and may, in furtherance of the policy stated in sub. (1), require ownership of a wider strip.

31.14(3)(b) (b) Files with the department a writing in such form as the department requires in which the applicant agrees that following the initial filling of the proposed pond the applicant will not convey the dam to another without first obtaining department approval. The department may require from an applicant who does not have the power of eminent domain a bond or other reasonable assurances that the applicant will adhere to such agreement.

31.14(3)(c) (c) Furnishes proof satisfactory to the department that the applicant has dedicated or will dedicate a parcel of land for public access to the impounded waters.

31.14(4) (4) No person may assume ownership of a dam after October 21, 1961, or the ownership of that specific piece of land on which a dam is physically located after April 27, 1982, without first complying with sub. (2) or (3). The transfer of the ownership of a dam or the ownership of a specific piece of land on which a dam is physically located made without complying with sub. (2) or (3) is void unless a permit to abandon the dam was granted under s. 31.185 or unless the transfer occurred by operation of law. Every person who accepts ownership by operation of law is subject to this chapter.

31.14(5) (5) For the purpose of implementing the policy stated in sub. (1), the department may by rule require all or specified classes of persons operating a dam for profit to create a fund or reserve to be used for major repairs, reconstruction or removal of the dam when necessary. Such rules shall prescribe the manner in which such fund or reserve is to be created, maintained and expended. This subsection shall not apply to a person who has the power of eminent domain.

31.14 History History: 1981 c. 246; 1991 a. 316; 1999 a. 150 s. 672.

31.14 Annotation This section does not apply to cranberry dams. Tenpas v. DNR, 148 Wis. 2d 579, 436 N.W.2d 297 (1989).

31.18 31.18 Obligations of owners of bridges and dams.

31.18(1) (1) The grantee of any permit, the owner of any dam constructed before permits were required by law, and the owner of any bridge at the city of Portage or at any point above that city, over the Wisconsin River, shall maintain and operate all such dams, slides, chutes, piers, booms, guide booms, weirs, tunnels, races, flumes, sluices, pits, fishways, locks, boat hoists, marine railways and all other equipment required by the department for the protection of public rights in such waters, and for the preservation of life, health and property, in good repair and condition, and shall not willfully, or otherwise, injure, remove or destroy the same, or any part thereof, unless the department shall have approved such removal or destruction in writing. In the event of emergency the department shall have power, pending investigation and hearing, to order the repair of any dam without notice and hearing.

31.18(2) (2) The owner of any such dam shall open such slide or chute for the passage of any craft or material lawfully navigating the stream, whenever requested so to do by the person in charge of such navigation, without charge or toll therefor. But such owner shall be under no obligation to otherwise aid passage through the slide or chute.

31.18(3) (3) Except when emergency shall require the same for the protection of life, health or property, no substantial alteration or addition shall be made to any dam heretofore or hereafter constructed without obtaining an order therefor from the department, which order may be issued only after an investigation and upon a finding that the proposed alterations or additions will not impair the sufficiency of such dam or any existing public rights in such waters.

31.18(4) (4) The department shall in the interest of public rights in navigable waters, or to promote safety and protect life, health and property, require the grantee of any permit, under this chapter, or of any permit or authorization heretofore provided for by legislative enactment, prior to flowing any lands by the construction of a dam thereunder, to remove from such lands all or any portion of the standing and fallen timber and all or any portion of the brush. Provided that in cases where the application for permit proposes construction of a dam for water reservoir or water storage purposes, and not for the purpose of operating a hydroelectric generating plant, the nature, extent and time for such removal shall be determined prior to the granting of a permit, except that subsequent to the granting of a permit the department may make such modification in the removal requirements as may be in the public interest and which will not materially alter the economics of the project; and in making such original determination or any modification thereof the economic need for the project shall be considered.

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

31.185 31.185 Permits to abandon dams.

31.185(1) (1) No owner of any dam may abandon or remove or alter the dam without first obtaining a permit from the department. No person may transfer ownership of a dam or the ownership of the specific piece of land on which a dam is physically located without first obtaining a permit from the department.

31.185(2) (2) An application for a permit to abandon, remove or alter a dam or an application for a permit to transfer ownership of a dam or the ownership of a specific piece of land on which a dam is physically located shall be made to the department upon forms prescribed by it and shall contain the owner’s name and address, a brief description of the dam and its location and other information as the department requires for the purpose of enabling it to act on the application.

31.185(3) (3) Section 31.06 governs procedure upon all applications hereunder.

31.185(4) (4) Prior to the hearing the department shall have its staff make its own investigation of the dam and, on the basis of such investigation, shall make recommendations as to the type of requirements, if any, which it would impose on the applicant under sub. (5) as a condition to granting the permit. Such recommendations shall be presented at the hearing. If no one registers opposition to the application at the hearing, the department shall grant the permit, subject to such conditions as it deems necessary under sub. (5). If someone registers opposition to the abandonment at the hearing and such opposition is not withdrawn, the department shall defer action on the application for a period of 120 days after the hearing. Within a reasonable time after the expiration of such period, the department shall deny the permit, or grant the permit, subject to such conditions as it imposes under sub. (5), unless, within such 120-day period, one or more municipalities or other persons or associations have agreed to acquire ownership of the dam and have furnished satisfactory proof of intent to comply with s. 31.14 (2) or (3).

31.185(5) (5) As a prerequisite to the granting of a permit under this section, the department may require the applicant to comply with such conditions as it deems reasonably necessary in the particular case to preserve public rights in navigable waters, to promote safety, and to protect life, health, property, property values, and economic values.

31.185 History History: 1973 c. 90; 1981 c. 246; 2015 a. 387.

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

31.185 Annotation Sub. (5) is not directed to the removal of a dam by the DNR. It creates a different procedure for a private party who seeks to remove a dam. Froebel v. DNR, 217 Wis. 2d 652, 579 N.W.2d 774 (Ct. App. 1998), 97-0844.

31.187 31.187 Abandoned dams.

31.187(1) (1) The department may remove or cause to be removed, in such manner as it deems fit, old and abandoned dams in streams in this state, upon giving 60 days’ notice in writing to the owner thereof, if the owner can be found. If the owner of the dam is unknown or cannot, by due diligence, be found, the department shall publish a class 3 notice, under ch. 985, in the county in which the dam is situated.

31.187(2) (2) Whenever the department determines that the conservation of any species or variety of wild animals will be promoted thereby, the department may maintain and repair any dam located wholly upon lands the title to which is in the state either as proprietor or in trust for the people after giving due consideration to fixing the level and regulating the flow of the public waters.

31.187 History History: 1983 a. 27 s. 687; Stats. 1983 s. 31.187; 1991 a. 316.

31.187 Annotation This section, and not s. 31.185 or 283.31, governs removal of a dam by the DNR. There is no statutory authority to grant injunctive relief against the DNR when it causes damages during a dam removal. Froebel v. DNR, 217 Wis. 2d 652, 579 N.W.2d 774 (Ct. App. 1998), 97-0844.

31.19 31.19 Inspection of dams; orders.