Chapter 31

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.

31.38(1) (1) Every municipality may, subject to this chapter, authorize the acquisition, construction, maintenance or repair of dams across any lake or stream adjoining or within the limits of such municipality, and may locate such dam within or without such limits.

31.38(2) (2) Whenever it is deemed necessary to acquire, construct, maintain or repair any such dam, a plan therefor, with specifications and cost estimates, shall be prepared and presented to the governing body of the municipality for adoption. Cost estimates may include the estimated cost of maintenance for a period of years. When adopted by the governing body, the plan shall, where required, be submitted to the department or proper officer of the United States for approval. No work shall be done in pursuance of such plan until it has been so approved.

31.38(3) (3) For the purpose of this section, a municipality may purchase or condemn lands within and, when necessary, without its limits in order to protect any property situated within such limits.

31.38(4) (4) The municipality shall proceed in accordance with s. 66.0703 to make special assessments to property on account of benefits resulting to the property from the improvement mentioned in sub. (2) or from the acquisition and maintenance of a dam. If the excess of benefits over damages accruing to property within the assessment district is not sufficient to pay the cost of the improvement, the municipality may pay the balance, either out of its general fund or out of any special fund created for that purpose. The municipality may issue its negotiable bonds, as provided in ch. 67, to pay for such improvement. The department upon request of a municipality shall assist in engineering, surveying and determination of charges necessary in establishing special assessment districts under this section, cost of which shall be advanced by the requesting municipality and later charged against the various parcels of the special assessment district in direct proportion to the assessed benefits of each parcel in the district.

31.38(5) (5) Whenever 2 or more municipalities propose to cooperate in acquiring, constructing, maintaining or repairing a dam, their governing bodies shall first meet and adopt a method of proceeding and a plan of apportioning to each its share of the entire cost. Such method of proceeding and plan of apportionment shall be embodied in a resolution adopted by the governing bodies of the cooperating municipalities acting jointly and later such resolution shall be adopted by each of the governing bodies acting separately.

31.38(6) (6) Whenever a county or town acts under this section, the references in s. 66.0703 to a city or village or clerk thereof mean the county or town or clerk thereof, as the case may be.

31.38 History History: 1999 a. 150 s. 672.

31.385 31.385 Dam safety; aid program.

31.385(1b) (1b) In this section “dam safety project” means the maintenance, repair, modification, abandonment or removal of a dam to increase its safety or any other activity that will increase the safety of a dam.

31.385(1m) (1m) The department shall promulgate the rules necessary to administer a financial assistance program for dam safety projects under which financial assistance shall be provided as follows:

31.385(1m)(a) (a) To municipalities and public inland lake protection and rehabilitation districts for any type of dam safety projects.

31.385(1m)(b) (b) To private owners for the removal of dams.

31.385(1m)(c) (c) To any persons for the removal of abandoned dams.

31.385(2) (2) The following standards shall apply to financial assistance under this section for dam safety projects:

31.385(2)(a) (a)

31.385(2)(a)1. 1. Except as provided in subd. 2., financial assistance for a dam safety project is limited to the sum of the following: