Chapter 31

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.

31.19(1g) (1g) Definitions. In this section:

31.19(1g)(a) (a) “High hazard dam” means a large dam the failure of which would probably cause loss of human life.

31.19(1g)(b) (b) “Low hazard dam” means a large dam the failure of which would probably not cause significant property damage or loss of human life.

31.19(1g)(c) (c) “Significant hazard dam” means a large dam the failure of which would probably cause significant property damage but would probably not cause loss of human life.

31.19(1m) (1m) Determination of dam size. For the purposes of this section, a dam is considered to be a large dam if either of the following applies:

31.19(1m)(a) (a) It has a structural height of 25 feet or more and impounds more than 15 acre-feet of water.

31.19(1m)(b) (b) It has a structural height of more than 6 feet and impounds 50 acre-feet or more of water.

31.19(2) (2) Large dam inspection.

31.19(2)(a) (a) Inspection by the department. At least once every 10 years the department shall conduct a detailed inspection of each high hazard dam and each significant hazard dam.

31.19(2)(ag) (ag) Owner responsibility.

31.19(2)(ag)1. 1. Owners of each high hazard dam, each significant hazard dam, and each low hazard dam shall engage a professional engineer registered under s. 443.04 to inspect the dam as specified in this paragraph.

31.19(2)(ag)2. 2. An owner of a high hazard dam shall cause the dam to be inspected at least 4 times between each inspection conducted by the department under par. (a). An owner of a significant hazard dam shall cause the dam to be inspected at least 2 times between each inspection conducted by the department under par. (a). An owner of a low hazard dam shall cause the dam to be inspected at least once every 10 years.

31.19(2)(ag)3. 3. The owner of a dam required to be inspected under this paragraph shall submit to the department, no later than 90 days after the date of the inspection, a report of the results of the inspection. The report shall include information on any deficiencies in the dam, recommendations for addressing those deficiencies, and recommendations on improving the safety and structural integrity of the dam.

31.19(2)(ar) (ar) Dam classification. The department shall classify each dam in this state as a high hazard, significant hazard, or low hazard dam for the purpose of this section.

31.19(2)(b) (b) Exemption for federally inspected dams. Notwithstanding the inspection requirements under pars. (a) and (ag), an inspection under par. (a) or (ag) is not required if the dam is inspected periodically by or under the supervision of a federal agency in a manner which is acceptable to the department and if the results of each inspection are made available to the department.

31.19(3) (3) Inspection upon complaint. If the department receives a complaint in writing from the mayor of a city, supervisor of a town or the president or trustee of a village which alleges that a dam maintained or operated in or across any navigable or nonnavigable waters or a reservoir is in an unsafe condition or if the department receives a complaint in writing from a person which alleges that the person’s property or any property under the person’s control is endangered by a dam or reservoir, the department shall investigate or cause an investigation to be made of the complaint.

31.19(4) (4) Discretionary inspection. The department may inspect or cause an inspection to be made of any dam or reservoir.

31.19(5) (5) Order; reduction in water level. If the department finds pursuant to an investigation that a dam or reservoir is not sufficiently strong or is unsafe and that the dam or reservoir is dangerous to life or property, it shall determine what alterations, additions or repairs are necessary and shall order the owner or person having control of the dam or reservoir to cause those alterations, additions or repairs to be made within a time specified in the order. If the department finds pursuant to an investigation that a dam or reservoir is not sufficiently strong or is unsafe and that the dam or reservoir is dangerous to life or property, it may cause to be drawn off, in whole or in part, the water in the reservoir or impounded by the dam if it determines that this action is necessary to prevent impending danger to persons or property.

31.19 History History: 1975 c. 349, 421; 1983 a. 27; 1989 a. 31; 2009 a. 28.

31.19 Cross-reference Cross-reference: See also ch. NR 333, Wis. adm. code.

31.21 31.21 Transfer of permit.

31.21(1) (1) No transfer or assignment of any permit granted under s. 31.06 or 31.08 shall be of any effect whatsoever unless it is in writing and a certified copy thereof within 10 days after the execution thereof, is filed with the department and unless such transfer or assignment is approved in writing by the department; and no such transfer or assignment shall be approved by the department except after an investigation and a finding that the transfer or assignment is not made or intended to be made for a purpose or to create a condition prohibited by s. 196.665 and that the transferee or assignee has complied with s. 31.14 (2) or (3). No permit shall be transferred or assigned to a foreign corporation, nor shall any permit granted to a municipality be assigned or transferred to any person, otherwise than as security for a loan made in good faith and concurrently with and as consideration for such transfer or assignment, and no foreign corporation shall have power to acquire title to any such permit, nor shall any person have power to acquire title to a permit granted to or acquired by a municipality, otherwise than in the enforcement of such security, and in no case shall any such foreign corporation hold title to or operate under any such permit for a period longer than 3 years.

31.21(2) (2) No municipality shall make or execute any lease or other contract with any person, firm, or corporation for the sale or use of hydraulic or hydroelectric power developed or generated by such municipality under a permit granted under s. 31.06 or 31.08 for a period longer than 10 years, unless the same shall be first approved by the department, after investigation and upon a finding that such lease or contract will not impair or interfere with the purpose or uses for which such dam was acquired or constructed by the municipality.

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

31.23 31.23 Forfeitures; private bridges and dams.

31.23(1) (1) Every person who constructs or maintains in navigable waters or aids in the construction or maintenance therein of any bridge or dam not authorized by law, shall forfeit for each such offense, and for each day that the free navigation of such waters are obstructed by such bridge or dam a sum not exceeding $50.

31.23(2) (2) Every person or corporation violating any of the provisions of this chapter, other than those mentioned in sub. (1), or violating any order made by the department pursuant to this chapter, shall forfeit for each such violation not more than $1,000.

31.23(3) (3) 

31.23(3)(a) (a) There shall be no forfeiture under this section in any case where a bridge is built by a private citizen across any navigable waters having a width of 35 feet or more, providing such bridge does not impair the rights of the public for purposes of navigation or fishing.

31.23(3)(b) (b) No such bridge shall be maintained unless its construction shall first be approved by the department after public hearing and on not less than 10 days’ written notice to the applicant and to the county and town clerks of the county and town wherein all or a portion of the proposed bridge is to be located.

31.23(3)(c) (c) Each applicant who shall apply to the department for a permit to construct any such bridge shall state in the application the proposed location of the bridge, the depth of the water to be spanned, the materials to be used in the construction of the bridge, the plans of the proposed bridge, together with such other facts as the department may require.

31.23(3)(d) (d) Every such bridge used by the public shall at all times be maintained in a safe condition by the owners of the land abutting the approaches of the bridge, and the owners shall make such repairs as are reasonably necessary therefor. The town shall not become liable for any damages resulting from the insufficiency or want of repairs of such bridge. If the department upon inspection finds that such bridge is in need of repairs, it shall notify the owners responsible for the repairs thereof, and also send a copy of such notice to the town board, to make all repairs as are reasonably necessary therefor. If such repair work as ordered by the department is not commenced within 60 days after receipt of such notice, the department may close such bridge until it is so repaired. Whenever any owner responsible for such bridge shall fail to repair or maintain the bridge in a good and safe condition, after having been notified so to do by the department for 60 days after such notification, such town board upon its own initiative may make such required repairs on such bridge, and the cost thereof shall be paid by the owners responsible therefor, and the town clerk shall enter such amount of the cost of repairs upon the next tax roll of the town.

31.23(3)(e) (e) This subsection does not apply to a bridge that is constructed, maintained, or operated in association with mining or bulk sampling that is subject to subch. III of ch. 295.

31.23 History History: 1991 a. 316; 2013 a. 1.

31.23 Cross-reference Cross-reference: See also chs. NR 300 and 320, Wis. adm. code.

31.23 Annotation Sub. (1) provides no substantive rule for which a violation would initiate the abatement procedures under s. 31.25. The remedy provided is limited to the forfeiture provided under sub. (1). Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 Wis. 2d 838, 203 N.W.2d 369 (1973).

31.25 31.25 Nuisances, abatement. Every dam, bridge or other obstruction constructed or maintained in or over any navigable waters of this state in violation of this chapter, and every dam not furnished with a slide, chute or other equipment prescribed by the department, is hereby declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any citizen thereof.

31.25 Annotation Section 31.23 (1) provides no substantive rule for which a violation would initiate the abatement procedures under this section. Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 Wis. 2d 838, 203 N.W.2d 369 (1973).

31.253 31.253 Dam removal; opportunity for hearing.

31.253(1) (1) Opportunity for hearing prior to department action. Except as provided under sub. (4), prior to seeking or causing the removal of a dam under this chapter, the department shall hold a public informational hearing on the proposed removal or publish a class 2 notice under ch. 985 stating that it will seek or cause the removal of the dam without holding a public informational hearing unless a hearing is requested in writing within 30 days after the last publication of the notice. The department may hold further hearings or give further notice as it deems appropriate.

31.253(2) (2) Opportunity for hearing prior to court action. Except as provided under sub. (4), a court may not order or authorize the removal of a dam in an enforcement action under this chapter unless a public informational hearing or an opportunity for a public informational hearing was provided.

31.253(3) (3) Public informational hearing. If the department conducts a public informational hearing under this section, the department shall explain the basis for its decision to seek or cause the removal of the dam, the procedures which will be followed and opportunities for citizen involvement in those procedures and the department shall provide an opportunity for citizens to present comments, testimony and evidence concerning the removal of the dam. Notwithstanding s. 227.42, this hearing may not be converted or treated as a contested case.

31.253(4) (4) Exceptions.

31.253(4)(a) (a) This section does not apply if the department or a court determines that a dam constitutes an immediate and significant hazard to persons or property.

31.253(4)(b) (b) This section does not apply to an application under s. 31.185 or departmental action under s. 31.185.

31.253 History History: 1983 a. 507; 1985 a. 182 s. 57.

31.26 31.26 Civil liabilities.

31.26(1) (1) The owner of any dam or of any privately owned bridge across the Wisconsin River or the Black River or any of their tributaries shall be liable for all damages occasioned to property by a failure to provide such dam or bridge with slides, booms and chutes as required by s. 31.18 (1). The person or party suffering any such damage shall have a lien upon the dam and all mills, machinery and appurtenances of such owner erected thereon, or served with water thereby, and on the lands adjoining, not exceeding 40 acres; or, as the case may be, a lien upon such bridge and its approaches.

31.26(2) (2) The claimant of such lien shall file a notice thereof in writing in the office of the clerk of the circuit court of the county in which the dam or bridge is located within 60 days after sustaining such damages and shall commence an action to enforce the lien within 6 months after filing such notice. Such lien shall accrue upon the filing of such notice and failure to file the same or to commence such action within the times specified therefor respectively shall operate as a waiver of the lien. Judgment for the plaintiff for the recovery of damages and declaring such lien may be enforced by an execution sale of the property affected as in ordinary actions at law, and upon such sale all rights to maintain such dam or bridge shall pass to the purchaser.

31.26(3) (3) In case of any personal injury by reason of any such neglect or failure the damages sustained thereby may be recovered and a lien and judgment enforced in like manner; and if death results an action may be maintained by the representatives of the deceased in the manner provided in other cases of death resulting from negligence or wrong.

31.26(4) (4) No common law liability, and no statutory liability provided elsewhere in these statutes, for damage resulting from or growing out of the construction, maintenance or operation of any dam is released, superseded, or in any manner affected by the provisions of this chapter; and this chapter creates no liability on the part of the state for any such damages.

31.29 31.29 May employ hydraulic engineer and assistants. The department may employ and fix the salaries of a competent hydraulic engineer and other assistants necessary to carry out the provisions of this chapter.

31.30 31.30 Dams on Brule River. It is declared to be the policy of the state to prohibit forever the building or maintaining of any dam or dams across the Brule River or any of its tributaries in Douglas County, except that a dam with an adequate fishway may be constructed across said Brule River at each of the 3 sites hereinafter described, or at such other sites as are selected by the department in place of any or all of the sites hereinafter mentioned, the purpose of which shall be to provide a method whereby fish declared to be undesirable for said stream by the department may be eliminated or prevented from ascending the stream, and to permit said stream to be developed for trout in different stretches thereof: site No. 1 known as Clevedon site in the southeast quarter of the northwest quarter of section 10, township 49 north, range 10 west; site No. 2 known as the Old Mill site in the northwest quarter of the southeast quarter, section 11, township 47 north, range 10 west; and site No. 3, known as the Upper or Rock dam site in the northeast quarter of the southeast quarter of section 22, township 47 north, range 10 west; and all rights, privileges, and franchises granted prior to June 26, 1905, to any person or corporation to improve said Brule River or any of its tributaries in said county for any purpose whatever, are repealed and annulled. No domestic corporation organized subsequent to such date shall exercise any of the powers or privileges authorized or conferred by ss. 180.15 to 180.18, 1925 stats., in, across or along said river or any of its tributaries in Douglas County.

31.30 Cross-reference Cross-reference: See s. 30.25 for similar prohibition of dams on the Wolf River.

31.305 31.305 Dams in the Lower Wisconsin State Riverway. No dam may be constructed in the lower Wisconsin River as defined in s. 30.40 (14).

31.305 History History: 1989 a. 31.

31.307 31.307 Dam on Milwaukee River.

31.307(1) (1) The department shall conduct, or shall cause to be conducted, an environmental and engineering study concerning the removal of the North Avenue dam in the city of Milwaukee from the Milwaukee River.

31.307(3) (3) Upon completion of the study under sub. (1), the city of Milwaukee may apply for a permit to abandon the dam under s. 31.185 or the department may proceed under ss. 31.187 and 31.253 to cause the removal of the dam.

31.307(4) (4) For purposes of s. 30.92 (4) (b) 6., moneys expended from the appropriation under s. 20.370 (5) (cq) for the study under sub. (1) shall be considered as amounts expended for projects considered necessary without regard to location.

31.307 History History: 1991 a. 39; 1995 a. 27.

31.309 31.309 Portage levee system and canal.

31.309(1) (1) City of Portage levee.

31.309(1)(a) (a) The department shall provide a grant in the 1995-97 fiscal biennium from the appropriation under s. 20.370 (5) (cq) to the city of Portage for the amount necessary for the renovation and repair of the city of Portage levee in the Portage levee system. The grant under this paragraph may not exceed $800,000 in fiscal year 1995-96 and $800,000 in fiscal year 1996-97.

31.309(1)(ag) (ag) The department shall provide a grant of $350,000 in fiscal year 2001-2002 and a grant of $350,000 in fiscal year 2002-2003 from the appropriation under s. 20.370 (5) (cq) to the city of Portage for the renovation and repair of the Portage canal.

31.309(1)(am) (am) The city of Portage may use any amounts from the grant awarded under par. (a) for the renovation and repair of the Portage canal.

31.309(1)(b) (b) When the department determines that the renovation and repair described under par. (a) are complete, the city of Portage shall assume the maintenance of the city of Portage levee in the Portage levee system in a manner that will best protect the surrounding area from the overflow of the Wisconsin River.

31.309(2) (2) Lewiston and Caledonia levees.

31.309(2)(a) (a) The department shall maintain the Lewiston and Caledonia levees in the Portage levee system in a manner that will best protect the surrounding area from the overflow of the Wisconsin River.