Chapter 31

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.

31.309(2)(b) (b) The department may expend in fiscal year 1995-96, from the appropriation under s. 20.370 (5) (cq), up to $400,000 for a study concerning the future of strengthening and maintaining the Lewiston and Caledonia levees in the Portage levee system. The study shall include a management plan for these 2 levees.

31.309 History History: 1995 a. 27 ss. 1698, 1699, 1702 to 1706; Stats. 1995 s. 31.309; 1999 a. 9; 2001 a. 16.

31.31 31.31 Dams on nonnavigable streams. Any person may erect and maintain upon that person’s land, and, with the consent of the owner, upon the land of another, a water mill and a dam to raise water for working it upon and across any stream that is not navigable in fact for any purpose whatsoever upon the terms and conditions and subject to the regulations hereinafter expressed; and every municipality may exercise the same rights upon and across such streams that they may exercise upon or across streams navigable for any purpose whatsoever.

31.31 History History: 1991 a. 316.

31.32 31.32 Dams not to injure other dams or sites. No such dam shall be erected to the injury of any mill lawfully existing, either above or below it on the same stream; nor to the injury of any mill site on the same stream on which a mill or milldam shall have been lawfully erected and used or is in the process of erection, unless the right to maintain a mill on such last-mentioned site shall have been lost or defeated by abandonment or otherwise; nor to the injury of any such mill site which has been occupied as such by the owner thereof, if such owner, within a reasonable time after commencing such occupation, completes and puts in operation a mill for the working of which the water of such stream shall be applied.

31.33 31.33 Jurisdiction of department.

31.33(1) (1) Dams heretofore or hereafter constructed; action for damages. All mills and milldams lawfully erected or constructed, on streams not navigable at the time, under chapter 48, territorial laws of 1840, chapter 62, laws of 1857, ch. 56, R.S. 1858, ch. 146, R.S. 1878, ch. 146, R.S. 1898, ch. 146, 1911 stats., ch. 146, 1913 stats., or ch. 146, 1915 stats., or any special, private or local act, or under any other act whatsoever, that are not now abandoned but are still in existence and use, and all dams heretofore or hereafter erected or constructed on streams not navigable in fact for any purpose, shall be subject to and regulated and controlled, so far as applicable, by ss. 31.02, 31.12, 31.18, 31.19, 31.25, 31.26 and 196.665, except that those sections do not prevent the owner of any land flooded or otherwise injured by any milldam from recovering by action at law, full compensation for all damages resulting to him or her in times past and that will result to him or her in the future in consequence of that flooding and injury but no damages suffered more than 3 years before the commencement of the action shall be recovered. The amount recovered constitutes a first lien upon the milldam and upon the mill, if any, and the lien may be enforced by execution sale of the property affected. In every such action the amount paid or secured to be paid under prior laws as damages shall be considered and proper allowance made therefor. The authority granted under this subsection to bring the action does not preclude the owner from proceeding under ch. 32. The owner may not exercise his or her option to bring the action after condemnation proceedings have been commenced against his or her property under ch. 32.

31.33(2) (2) License. A license is granted to each owner of any such milldam now in existence and use, and to each owner of any such milldam hereafter constructed, to maintain and use the same to operate mills or machinery, or for any other lawful private or public purpose, but subject, however, to the supervision of the department acting under ss. 31.02, 31.12, 31.18, 31.19, 31.25, 31.26 and 196.665. The right created by the license shall follow the title to the milldam and a conveyance of the latter shall transfer the right to the grantee.

31.33(3) (3) Interpretation. Whenever ss. 31.02, 31.12, 31.18, 31.19, 31.25, 31.26 and 196.665 are applied to mills or milldams specified in sub. (1) every reference in any of them to a “permit” or to a “grantee” of a permit shall be regarded as referring respectively to a license granted by this section and to the owner of such a mill or milldam.

31.33(4) (4) Height. The height to which water may be raised by any such milldam and the length or period of time for which it may be kept up each year, may be restricted and regulated by the orders of the department.

31.33(5) (5) Violation of orders, penalties. Every person, firm or corporation violating any of the orders respecting any such mill or milldam made by the department shall forfeit for each such violation a sum not exceeding $500 which may be recovered by civil action as provided by ch. 778.

31.33 History History: 1979 c. 32 s. 92 (8); 1981 c. 390; 1989 a. 31.

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

31.33 Annotation This section applies to nonnavigable artificial waterways insofar as is necessary to protect navigable waters and owners of flooded waters. 63 Atty. Gen. 493.

31.33 Annotation Wisconsin’s Milldam Act: Drawing New Lesson’s From Old Law. Martini. 1998 WLR 1305.

31.34 31.34 Flow of water regulated.

31.34(1) (1) Except as provided in subs. (2) and (3), each person, firm, or corporation maintaining a dam on any navigable stream shall pass at all times at least 25 percent of the natural low flow of water of such stream.

31.34(2) (2) Except as provided in sub. (3), if all of the following apply to a dam on a navigable stream, the person, firm, or corporation maintaining the dam shall pass an amount of water not less than the lesser of the low flow of the stream over the preceding 10-year period, as determined using the 7-day, 10-year low-streamflow method, or the amount of water passed by groundwater seepage and leakage through the dam structure:

31.34(2)(a) (a) The dam is in a location where a dam was originally constructed prior to 1845 and regulates water discharge to a stream from a lake with a depth of over 125 feet.

31.34(2)(b) (b) The precise level of the natural low flow of water at the location of the dam prior to its construction is not known.

31.34(2)(c) (c) Historically there have been extended periods during which water passed through the dam only as groundwater seepage and as the result of leakage through the dam structure.

31.34(2m) (2m) The department may not order a person, firm, or corporation maintaining a dam described under sub. (2) (a) to (c) to pass an amount of water greater than the minimum discharge described under sub. (2).

31.34(3) (3) The requirements under subs. (1) and (2) do not apply to any of the following:

31.34(3)(a) (a) A plant or dam where the water is discharged directly into a lake, mill pond, storage pond, or cranberry marsh.

31.34(3)(am) (am) A dam, in existence on June 25, 2017, in a commercial fish farm, in existence and registered with the department of agriculture, trade and consumer protection on June 25, 2017, and located in Langlade County, where the water is returned to the navigable stream.

31.34(3)(b) (b) Cases in which, in the opinion of the department, the applicable minimum discharge described in sub. (1) or (2) is not necessary for the protection of fish life.

31.34(4) (4) Any person, firm, or corporation violating this section shall be fined not less than $50 nor more than $1,000.

31.34 History History: 2015 a. 55; 2017 a. 21.

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

31.35(1) (1) Dams controlling the water elevations in areas covered by leases made under s. 59.01 shall be operated in such manner as not to divert waters or withhold from any cranberry reservoir to the damage of any cranberry marsh now served or dependent upon such water supply or to any crops or works therein.

31.35(2) (2) The circuit court for the county where the leased lands are located shall, upon petition and proof that any cranberry marsh or crops or works thereon are endangered or likely to be damaged by the operation of any dam or water control, make a summary order for the release, impounding or control of the waters affected by the dam or dams, to be and remain in force until dissolved by due notice and hearing.

31.35 History History: 1977 c. 449.

31.36 31.36 Levee commissioners.

31.36(1) (1) The right-of-way for such levees, if any additional are found necessary, shall be furnished by the municipalities in which they are located, and no construction work shall be begun until such rights-of-way are provided.

31.36(2) (2) Whenever levee commissioners under either general or special act are charged with the expenditure of money appropriated by the state or by any municipality for the construction, extension, improvement or repair of any levee or breakwater along the shore or bank of a river, stream or lake, s. 31.38 shall apply for the purpose of acquisition and condemnation of lands for such purposes and such commissioners have all the powers conferred by s. 31.38 for these purposes. Condemnations shall comply with s. 66.0703, so far as applicable. Commissioners may procure by condemnation lands for right-of-way, earth material, borrow pits, quarry, timber and brush privileges as they may, in their judgment, deem necessary for such purposes.

31.36(3) (3) Whenever said levee commissioners are not vested with power to buy rights-of-way, earth material, borrow pits, quarry, timber and brush privileges from money appropriated by the state they may receive from any person or municipality donations of land and moneys to pay for lands and privileges condemned hereunder and for the expenses of such condemnation proceedings.

31.36(14) (14) This section does not modify or repeal s. 31.35.

31.36 History History: 1993 a. 490; 1995 a. 27; 1999 a. 150 s. 672.

31.38 31.38 Municipal authority to construct and maintain dams.