Chapter 31

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:

31.385(2)(a)1.a. a. No more than 50 percent of the first $400,000 of costs of the project.

31.385(2)(a)1.b. b. No more than 25 percent of the costs of the project that exceed $400,000.

31.385(2)(a)2. 2. A project to remove a dam shall not be subject to the cost limits under subd. 1.

31.385(2)(a)3. 3. Financial assistance is limited to no more than $400,000 for each dam safety project.

31.385(2)(ad) (ad)

31.385(2)(ad)1m. 1m. Notwithstanding par. (a) and except as provided in subds. 2m. and 3., beginning with financial assistance provided in the 2021-22 fiscal year, financial assistance for a dam safety project shall be awarded in the following amounts:

31.385(2)(ad)1m.a. a. An amount equal to 50 percent of project costs for the first $1,000,000 in project costs.

31.385(2)(ad)1m.b. b. An amount equal to 25 percent of project costs in excess of $1,000,000.

31.385(2)(ad)2m. 2m. A project to remove a dam shall not be subject to the cost limits under subd. 1. [subd. 1m. a.].

31.385 Note NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.

31.385(2)(ad)3. 3. Financial assistance is limited to no more than $1,000,000 for each dam safety project.

31.385(2)(ag) (ag) Of the amounts appropriated under ss. 20.370 (4) (ja) and 20.866 (2) (tL) and (tx), at least $250,000 shall be used for projects to remove dams. A project to remove a dam may include restoring the stream or river that was dammed.

31.385(2)(ar) (ar) Of the amounts appropriated under ss. 20.370 (4) (ja) and 20.866 (2) (tL) and (tx), at least $100,000 shall be used for the removal of abandoned dams. The amounts required to be used under this paragraph are in addition to the amounts required to be used for the removal of dams under par. (ag).

31.385(2)(b) (b) The department shall determine which projects shall receive funding priority.

31.385(2)(bm) (bm) The department may provide financial assistance for an activity other than the maintenance, repair, modification, abandonment or removal of the dam only if the cost of that activity will be less than the cost of the maintenance, repair, modification or removal of the dam.

31.385(2)(c) (c) No financial assistance may be provided under this section for a dam safety project unless at least one of the following applies:

31.385(2)(c)1. 1. The department conducts an investigation or inspection of the dam under this chapter and the owner of the dam requests financial assistance under this section after having received department directives, based on the department’s investigation or inspection of the dam, for the repair, modification or abandonment and removal of the dam or for another activity to increase the safety of the dam.

31.385(2)(c)2. 2. The municipality, public inland lake protection and rehabilitation district or other person applying for state financial assistance under this section has received directives from the department or is under order by the department to maintain, repair, modify, abandon or remove a dam on August 9, 1989.

31.385(2)(d) (d) The financial assistance that is provided under this section shall be paid from the appropriations under ss. 20.370 (4) (ja) and 20.866 (2) (tL) and (tx), except as provided in par. (dm) and in 1991 Wisconsin Act 39, section 9142 (10d).

31.385(2)(dm) (dm) Financial assistance that is provided under sub. (7) shall be paid from the appropriation under s. 20.866 (2) (ta) and shall be treated as moneys obligated from the subprogram under s. 23.0917 (3).

31.385(3) (3) The department shall provide municipalities, public inland lake protection and rehabilitation districts and other persons receiving state financial assistance under this section with technical assistance for dam safety projects under this section. The department shall coordinate the financial assistance program under this section with other related state and federal programs.

31.385(4) (4) 

31.385(4)(a) (a) The department shall maintain an inventory of all dams in the state that require a dam safety project under this section. The inventory shall list the dam safety projects in the chronological order in which they are required to be undertaken. For each dam safety project on the inventory, the department shall include a statement of which parts of the dam safety project are required to protect the rights held by the public in the navigable waters contained by the dam.

31.385(4)(b) (b) The department shall provide notice to the owner of a dam that is included in the inventory. The department shall by rule establish a notice and hearing process for a dam owner to object to the inclusion of the owner’s dam on the list. The department shall use this notice and hearing each time a dam is included in the inventory. The process shall include a public hearing in the city, village or town in which the dam is located, a public comment period, and an appeals process.

31.385(5) (5) Notwithstanding the limitations under sub. (2) (a) and the funding allocation requirements under sub. (2) (ag) and (ar), the department shall provide financial assistance to the village of Cazenovia in the amount necessary for a dam safety project to repair a dam that is located in the portion of the village that is in Richland County. The amount of the financial assistance may not exceed $250,000. The village need not contribute to the repair costs, and sub. (2) (c) does not apply to this dam safety project. The repair of this dam need not be included as a dam safety project under the inventory maintained by the department under sub. (4) for the village to receive financial assistance under this section.

31.385(6) (6) 

31.385(6)(a) (a) Notwithstanding the limitations under sub. (2) (a) and the funding allocation requirements under sub. (2) (ag) and (ar), the department shall provide financial assistance to all of the following:

31.385(6)(a)1. 1. Adams County for a dam safety project for Easton Dam in the amount necessary for the project, but not to exceed $150,000.