Chapter NR 117

NR 117.03 Note Note: In Muench v. Public Service Commission, 261 Wis. 492 (1952), the Wisconsin Supreme Court held that a stream is navigable in fact if it is capable of floating any boat, skiff or canoe of the shallowest draft used for recreational purposes. In DeGayner and Co., Inc. v. Department of Natural Resources, 70 Wis.2d 936 (1975), the court also held that a stream need not be navigable in its normal or natural condition to be navigable in fact. The DeGayner opinion indicates that it is proper to consider artificial conditions, such as beaver dams, where such conditions have existed long enough to make a stream useful as a highway for recreation or commerce, and to consider ordinarily recurring seasonal fluctuations, such as spring floods, in determining the navigability of a stream.

NR 117.03(8) (8) “Ordinary high-water mark” means the point on the bank or shore up to which the presence and action of surface water is so continuous as to leave a distinctive mark such as by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristics.

NR 117.03 Note Note: Where the bank or shore of any particular place is of such character that it is difficult or impossible to ascertain where the point of ordinary high-water mark is, recourse may be had to the opposite bank of a stream or to other places on the shore of a lake or flowage to determine whether a given stage of water is above or below the ordinary high-water mark.

NR 117.03(9) (9) “Shorelands”, as defined in s. 59.692 (1) (b), Stats., means the area within the following distances from the ordinary high-water mark of navigable waters, as defined in s. 281.31 (2) (d), Stats.:

NR 117.03(9)(a) (a) One thousand feet from a lake, pond or flowage. If the navigable water is a glacial pothole lake, this distance shall be measured from the high-water mark of the lake.

NR 117.03 Note Note: The water level in a glacial pothole lake may remain above the“ordinary high-water mark” several years after flooding, resulting in a“high-water mark” which is above the “ordinary high-water mark.” However, there would be no practical difference between the “high-water mark” of a glacial pothole lake and the “ordinary high-water mark” of a glacial pothole lake where the effects of such flooding are no longer evident.

NR 117.03(9)(b) (b) Three hundred feet from a river or a stream or to the landward side of the floodplain, whichever distance is greater.

NR 117.03(10) (10) “Special exception (conditional use)” means a use which is permitted by a zoning ordinance provided that certain conditions specified in the ordinance are met and that a permit is granted by the board of appeals or, where appropriate, the city or village planning agency or governing body.

NR 117.03(11) (11) “Village planning agency” means a village planning commission created under ss. 61.35 and 62.23 (1), Stats., or a committee of the village board which acts on matters pertaining to village planning.

NR 117.03(12) (12) “Wetland”, as defined in s. 23.32 (1), Stats., means an area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.

NR 117.03 History History: Cr. Register, November, 1983, No. 335, eff. 12-1-83; correction in (9) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1995, No. 477; corrections in (7) and (9) made under s. 13.93 (2m) (b) 1. and 7., Stats., Register, October, 1999, No. 526.

NR 117.05 NR 117.05 Shoreland-wetland protection standards.

NR 117.05(1) (1) Establishment of shoreland-wetland zoning regulations.

NR 117.05(1)(a) (a) City and village review of preliminary wetland inventory maps. Before the department prepares final Wisconsin wetlands inventory maps:

NR 117.05(1)(a)1. 1. The department shall transmit to the appropriate city or village officials copies of preliminary wetland inventory maps for that city or village.

NR 117.05(1)(a)2. 2. The city or village shall have 90 days to review the preliminary maps unless the review period is extended by written approval of the department, but in no case shall the review period extend for more than 180 days.

NR 117.05(1)(a)3. 3. The city or village may hold a public hearing to solicit public comments on the preliminary maps. Notice of the time and place of the hearing shall be published as a class I notice under ch. 985, Stats.

NR 117.05(1)(a)4. 4. On or before the last day of the review period, the city or village shall return the preliminary maps to the department. If city or village officials believe that the preliminary maps are inaccurate, discrepancies shall be noted on the maps with an accompanying narrative explaining the problem areas.

NR 117.05(1)(a)5. 5. The department shall schedule a meeting with city or village officials within 30 days of the return of the preliminary maps if the city or village has indicated that it believes that there are inaccuracies on the preliminary maps.

NR 117.05(1)(a)6. 6. After meeting with city or village officials to discuss apparent map inaccuracies, the department shall, at department expense, consult available soil survey maps and conduct on-site inspections, if appropriate, in order to evaluate the city or village recommendations, and shall then prepare, adopt and deliver to the city or village the final wetland inventory maps for that city or village.

NR 117.05(1)(a)7. 7. The adoption of a final wetland inventory map is a final decision of the department and may be reviewed as provided in ch. 227, Stats.

NR 117.05(1)(b) (b) City and village adoption of shoreland-wetland zoning regulations.

NR 117.05(1)(b)1. 1. Except as provided in subd. 2. or 3., each city and village shall adopt an ordinance or an amendment to an existing ordinance or zoning code which creates a shoreland-wetland zoning district for all wetlands of 5 acres or more, and all portions of wetlands of 5 acres or more, which are shown on the final wetland inventory maps and which are located in shorelands within the incorporated area of the city or village. Such ordinance or amendment shall be adopted within 6 months after receipt of the final wetland inventory maps prepared by the department which cover that city or village. Cities and villages have the option of zoning any wetlands within their incorporated area, including wetlands which are less than 5 acres in size, except those wetlands described in subd. 2.

NR 117.05(1)(b)2. 2. Subdivision 1. is not applicable to:

NR 117.05(1)(b)2.a. a. Any wetlands which are filled, prior to the date on which the city or village receives applicable final wetland inventory maps, in a manner that affects their wetland characteristics to the extent that the area would no longer meet the definition of wetland in s. NR 117.03; or

NR 117.05(1)(b)2.b. b. Any wetlands between the ordinary high-water mark and a bulkhead line established prior to May 7, 1982, under s. 30.11, Stats., that are located on the landward side of the bulkhead line.

NR 117.05(1)(b)3. 3. Subdivision 1. is not applicable to any wetlands which the city or village rezones at the time that shoreland-wetland zoning regulations are initially adopted, if the city or village and the department have determined that such rezoning will have no significant adverse impact upon the wetland functions listed in sub. (4) (d). The provisions of sub. (4) (d) to (h) are applicable to such rezoning. In order to rezone certain mapped wetlands at the time that shoreland-wetland zoning regulations are initially adopted, the city or village shall publish a separate class II notice and hold a separate public hearing on the proposed rezoning in conjunction with the public hearing on the adoption of the shoreland-wetland zoning ordinance, or amendment to an existing ordinance or zoning code, which is required by subd. 1.

NR 117.05(1)(b)4. 4. A public hearing shall be held on the ordinance or amendment to an existing ordinance or zoning code, which creates a shoreland-wetland zoning district, as required by s. 62.23 (7) (d) 2., Stats. The appropriate district office of the department shall be provided with a copy of the proposed shoreland-wetland ordinance or amendment, and with written notice of the public hearing, at least 10 days prior to such hearing.

NR 117.05(2) (2) Permitted uses in shoreland-wetland zoning districts. Within shoreland-wetland zoning districts, cities and villages may permit, prohibit, or authorize as a special exception (conditional use) the following uses subject to the provisions of chs. 30 and 31, Stats., and other local ordinances and state and federal laws, if applicable:

NR 117.05(2)(a) (a) Hiking, fishing, trapping, hunting, swimming, snowmobiling and boating.

NR 117.05(2)(b) (b) The harvesting of wild crops, such as marsh hay, ferns, moss, wild rice, berries, tree fruits and tree seeds, in a manner that is not injurious to the natural reproduction of such crops and that does not involve filling, flooding, draining, dredging, ditching, tiling or excavating.

NR 117.05(2)(c) (c) The practice of silviculture, including the planting, thinning and harvesting of timber, provided that no filling, flooding, draining, dredging, ditching, tiling or excavating is done except as required for:

NR 117.05(2)(c)1. 1. Temporary water level stabilization measures to alleviate abnormally wet or dry conditions which would have an adverse impact on the conduct of silvicultural activities if not corrected; or

NR 117.05(2)(c)2. 2. The construction and maintenance of roads necessary to conduct silvicultural activities, as permitted under par. (k).

NR 117.05 Note Note: Local units of government, in the development and application of ordinances which apply to shoreland areas, must consider other programs of statewide interest and other state regulations affecting the lands to be regulated, e.g., regulations and management practices applicable to state and county forests and lands entered under the forest cropland and woodland tax law programs.

NR 117.05(2)(d) (d) The pasturing of livestock and the construction and maintenance of fences, provided that no filling, flooding, draining, dredging, ditching, tiling or excavating is done, except limited filling and excavating necessary for the construction and maintenance of fences.

NR 117.05(2)(e) (e) The cultivation of agricultural crops if cultivation can be accomplished without filling, flooding, or artificial drainage of the wetland through ditching, tiling, dredging or excavating except for:

NR 117.05(2)(e)1. 1. Flooding, dike and dam construction, and ditching for the purpose of growing and harvesting cranberries;

NR 117.05(2)(e)2. 2. The maintenance and repair of existing farm drainage ditches, where permissible under s. 30.20, Stats., or of other existing agricultural drainage systems (such as tiling) to restore the functional drainage of existing agricultural lands, including the minimum amount of filling necessary to dispose of dredged spoil, provided that the filling is permissible under ch. 30, Stats., and that dredged spoil is placed on existing spoil banks where possible; or

NR 117.05(2)(e)3. 3. The construction and maintenance of roads necessary for agricultural cultivation, as permitted under par. (k).

NR 117.05(2)(f) (f) The construction and maintenance of duck blinds provided that no filling, flooding, draining, dredging, ditching, tiling or excavating is done.

NR 117.05(2)(g) (g) The construction and maintenance of nonresidential buildings provided that:

NR 117.05(2)(g)1. 1. The building is used solely in conjunction with the raising of waterfowl, minnows or other wetland or aquatic animals, or used solely for some other purpose which is compatible with wetland preservation;

NR 117.05(2)(g)2. 2. The building cannot as a practical matter be located outside the wetland;

NR 117.05(2)(g)3. 3. The building does not exceed 500 square feet in size; and

NR 117.05(2)(g)4. 4. No filling, flooding, draining, dredging, ditching, tiling or excavating is done, except limited filling and excavating necessary to provide structural support for the building.

NR 117.05(2)(h) (h) The construction and maintenance of piers, docks, walkways, observation decks and trail bridges, provided that no filling, flooding, dredging, draining, ditching, tiling or excavating is done, except limited filling and excavating necessary for the installation of pilings.

NR 117.05(2)(i) (i) The establishment and development of public and private parks and recreation areas, outdoor education areas, historic, natural and scientific areas, game refuges and closed areas, fish and wildlife habitat improvement projects, game farms and wildlife preserves, and public boat launching ramps, provided that:

NR 117.05(2)(i)1. 1. No filling or excavating is done except for limited filling and excavating necessary for the development of boat launching ramps, swimming beaches or the construction of park shelters or similar structures.

NR 117.05(2)(i)2. 2. Any private development allowed under this paragraph shall be used exclusively for the permitted purpose.

NR 117.05(2)(i)3. 3. The construction and maintenance of roads necessary for the uses permitted under this paragraph may be permitted if the requirements of par. (k) are met.

NR 117.05(2)(i)4. 4. Ditching, excavating, dredging, dike and dam construction may be allowed in game refuges and closed areas, fish and wildlife habitat improvement projects, game farms, and wildlife areas provided that they are done for the purpose of improving wildlife habitat or to otherwise enhance wetland values.

NR 117.05(2)(j) (j) The construction and maintenance of electric and telephone transmission lines and water, gas and sewer distribution lines, and related facilities, provided that:

NR 117.05(2)(j)1. 1. Such lines cannot as a practical matter be located outside the wetland; and

NR 117.05(2)(j)2. 2. Any filling, excavating, ditching or draining necessary for such construction or maintenance is done in a matter designed to minimize the adverse impact upon the natural functions of the wetland listed under sub. (4) (d).

NR 117.05 Note Note: Major electrical generating facilities and high-voltage transmission lines that have obtained a certificate of public convenience and necessity under s. 196.491, Stats., are not subject to the requirements of local ordinances.

NR 117.05(2)(k) (k) The construction and maintenance of roads which are necessary for the continuity of the city street system, necessary for the provision of essential utility and emergency services, or necessary to provide access to uses permitted under this subsection, provided that:

NR 117.05(2)(k)1. 1. The road cannot, as a practical matter, be located outside of the wetland;

NR 117.05(2)(k)2. 2. The road is designed and constructed to minimize the adverse impact upon the natural functions of the wetland listed under sub. (4) (d);

NR 117.05(2)(k)3. 3. The road is designed and constructed with the minimum cross-sectional area practical to serve the intended use;

NR 117.05(2)(k)4. 4. Road construction activities are carried out in the immediate area of the roadbed only; and

NR 117.05(2)(k)5. 5. Any filling, flooding, draining, dredging, ditching, tiling or excavating that is done must be necessary for the construction or maintenance of the road.

NR 117.05(2)(L) (L) The construction and maintenance of railroad lines provided that:

NR 117.05(2)(L)1. 1. Such lines cannot as a practical matter be located outside the wetland; and

NR 117.05(2)(L)2. 2. Any filling, excavating, ditching or draining necessary for such construction or maintenance is done in a manner designed to minimize the adverse impact upon the natural functions of the wetland listed under sub. (4) (d).

NR 117.05(2)(m) (m) The installation and maintenance of sealed tiles for the purpose of draining lands outside the shoreland-wetland zoning district provided that such installation or maintenance is done in a manner designed to minimize the adverse impact upon the natural functions of the shoreland-wetland listed under sub. (4) (d).

NR 117.05(2)(n) (n) The maintenance, repair, replacement, and reconstruction of existing county, city and village highways and bridges.

NR 117.05 Note Note: Activities affecting waters of the state as defined in s. 281.01 (18), Stats., which are carried out under the direction and supervision of the department of transportation in connection with highway and bridge design, location, construction, reconstruction, maintenance and repair are not subject to the prohibitions or approval requirements specified under s. 29.601, 30.11, 30.123, 30.195, 30.20, 59.692, 61.351, 62.231, 87.30 or chs. 281 to 285 or 289 to 299, Stats., except s. 281.48, Stats., if they are carried out in accordance with interdepartmental liaison procedures established by the department of natural resources and the department of transportation for the purpose of minimizing the adverse environmental impact, if any, of the activity. However, at the earliest practical time prior to the commencement of these activities, the department of transportation is required to notify the department of natural resources of the location, nature and extent of the proposed work that may affect the waters of the state, under s. 30.2022, Stats.

NR 117.05(2)(o) (o) The maintenance and repair of existing non-agricultural drainage ditches, where permissible under s. 30.20, Stats., or of other existing non-agricultural drainage systems (such as tiling) to restore pre-existing levels of drainage, including the minimum amount of filling necessary to dispose of dredged spoil, provided that the filling is permissible under ch. 30, Stats., and that dredged spoil is placed on existing spoil banks where possible.

NR 117.05(3) (3) Prohibited uses in shoreland-wetland zoning districts. Any use not listed in sub. (2) is prohibited in a shoreland-wetland zoning district unless the wetland, or a portion thereof, is rezoned by amendment of the city or village shoreland-wetland zoning ordinance in accordance with s. 62.23 (7) (d) 2., Stats., and the procedures outlined in sub. (4).

NR 117.05(4) (4) Amending shoreland-wetland zoning regulations.

NR 117.05(4)(a) (a) Official amendments to the existing ordinance or zoning code are required for all changes to shoreland-wetland zoning regulations. Such amendments shall be made in accordance with the provisions of s. 62.23 (7) (d) 2., Stats.

NR 117.05(4)(b) (b) A copy of each proposed text or map amendment to shoreland-wetland zoning regulations shall be submitted to the appropriate district office of the department within 5 days of the submission of the proposed amendment to the city or village planning agency.

NR 117.05(4)(c) (c) All proposed text and map amendments to shoreland-wetland zoning regulations shall be referred to the city or village planning agency, and a public hearing shall be held as required by s. 62.23 (7) (d) 2., Stats. The appropriate district office of the department shall be provided with written notice of the public hearing at least 10 days prior to such hearing.

NR 117.05(4)(d) (d) In order to ensure that the shoreland protection objectives in s. 281.31, Stats., will be accomplished by the city or village shoreland-wetland zoning ordinance or amendment, a city or village may not rezone a wetland in a shoreland-wetland zoning district, or any portion thereof, if the proposed rezoning may result in a significant adverse impact upon any of the following:

NR 117.05(4)(d)1. 1. Storm and floodwater storage capacity;

NR 117.05(4)(d)2. 2. Maintenance of dry season stream flow or the discharge of groundwater to a wetland, the recharge of groundwater from a wetland to another area or the flow of groundwater through a wetland;

NR 117.05(4)(d)3. 3. Filtering or storage of sediments, nutrients, heavy metals or organic compounds that would otherwise drain into navigable waters;

NR 117.05(4)(d)4. 4. Shoreline protection against soil erosion;

NR 117.05(4)(d)5. 5. Fish spawning, breeding, nursery or feeding grounds;

NR 117.05(4)(d)6. 6. Wildlife habitat; or

NR 117.05(4)(d)7. 7. Areas of special recreational, scenic or scientific interest, including scarce wetland types and habitat of endangered species.

NR 117.05(4)(e) (e) If the department determines that the proposed rezoning may have a significant adverse impact upon any of the criteria listed in par. (d), the department shall notify city or village officials of its determination either prior to or during the public hearing held on the proposed amendment.

NR 117.05(4)(f) (f) The appropriate district office of the department shall be provided with:

NR 117.05(4)(f)1. 1. A copy of the recommendations and report, if any, of the city or village planning agency on the proposed text or map amendment within 10 days after the submission of those recommendations to the city council or village board; and

NR 117.05(4)(f)2. 2. Written notice of the city council’s or village board’s action on the proposed text or map amendment within 10 days after the action is taken.

NR 117.05(4)(g) (g) If the city council or village board approves the proposed amendment and the department determines, after review as required by s. NR 117.06 (2) (b), that the city or village shoreland-wetland zoning ordinance if so amended will no longer comply with requirements of s. 62.231 or 61.351, Stats., and this chapter, the department shall, after notice and hearing, adopt a complying ordinance for the city or village under s. 62.231 (6) or 61.351 (6), Stats.

NR 117.05(4)(h) (h) If the department has notified the city or village planning agency that a proposed amendment may have a significant adverse impact upon any of the criteria listed in par. (d), that proposed amendment, if approved by the city council or village board, may not become effective until more than 30 days have elapsed since written notice of the city council or village board approval was mailed to the department, as required by par. (f). If within the 30 day period, the department notifies the city council or village board that the department intends to adopt a superseding shoreland-wetland zoning ordinance for the city or village under s. 62.231 (6) or 61.351 (6), Stats., the proposed amendment may not become effective until the ordinance adoption procedure under s. 62.231 (6) or 61.351 (6), Stats., is completed or otherwise terminated.

NR 117.05(5) (5) Nonconforming structures and uses.