Chapter NR 323

NR 323.04 Note Note: Eligibility for an exemption or general permit does not automatically result in a federal permit or state water quality certification for fill in wetlands. Some projects involving minimal wetland fill may be eligible for authorization under a U.S. Army Corps of Engineers general permit which has already been granted state water quality certification or a general permit under s. 281.36 (3g) (b), Stats. (under development) All other projects affecting wetlands will require individual water quality certification including public notice as required by s. 401, Federal Clean Water Act, and s. 281.36 (3b) (b), Stats., and carried out under chs. NR 103 and 299. For further instructions, see the department’s website at http://dnr.wi.gov under the topic “Waterway and Wetland Permits.”

NR 323.04(2)(c) (c) General standards.

NR 323.04(2)(c)1. 1. A fish habitat structure may be authorized under a general permit if it meets all the requirements in sub. (1), except for sub.(1) (c) 1., and all the requirements of this paragraph.

NR 323.04(2)(c)2. 2. Erosion control measures shall meet or exceed the technical standards for erosion control approved by the department under subch. V of ch. NR 151. Any area where topsoil is exposed during construction shall be immediately seeded and mulched or riprapped to stabilize disturbed areas and prevent soils from being eroded and washed into the waterway.

NR 323.04 Note Note: These standards can be found at the following website: http://dnr.wi.gov/topic/stormwater/standards/.

NR 323.04(2)(c)3. 3. Unless part of a permanent stormwater management system, all temporary erosion and sediment control practices shall be removed upon final site stabilization. Areas disturbed during construction or installation shall be restored.

NR 323.04(2)(c)4. 4. To protect fish habitat during spawning seasons, no general permit activity may take place during the time period specified:

NR 323.04(2)(c)4.a. a. For trout streams identified under s. NR 1.02 (7) and perennial tributaries to those trout streams, September 15 through May 15.

NR 323.04(2)(c)4.b. b. For all waters not identified under subd. 4. a. and located south of state highway 29, March 15 through May 15.

NR 323.04(2)(c)4.c. c. For all waters not identified under subd. 4. a. and located north of state highway 29, April 1 through June 1.

NR 323.04(2)(c)4.d. d. The applicant may request that the requirements in subd. 4. a., b. or c. be waived by the department on a case-by-case basis, by submitting a written statement signed by the local department fisheries biologist, documenting consultation about the proposed project, and that the local department fisheries biologist has determined that the requirements of this paragraph are not necessary to protect fish spawning for the proposed project.

NR 323.04(2)(c)5. 5. To stop the spread of invasive species and viruses from one navigable waterway to another navigable waterway, all equipment or portions of equipment used for constructing, operating, or maintaining the project, including tracked vehicles, barges, boats, silt or turbidity curtains, hoses, sheet piles, and pumps, shall be decontaminated for invasive species and viruses before and after use or prior to use within another navigable waterway. Decontamination activities shall be performed by taking actions specified in subd. 5. a. to c. or h. Decontamination shall include either subd. 5. d., e., f., g., or h. for any equipment, or portions of equipment, that is used in non-frozen navigable waters when the air temperature is above 19 degrees Fahrenheit at the time the decontamination procedures take place.

NR 323.04(2)(c)5.a. a. Inspect all equipment used for constructing, operating, or maintaining the project and remove all plants and animals, and other mud, debris, etc.

NR 323.04(2)(c)5.b. b. Drain all water from equipment used in navigable waters.

NR 323.04 Note Note: This does not apply to water in closed engine cooling systems or water tanks, or containers of potable drinking water or other beverages meant for human consumption. If a tanker truck discharges water collected from navigable waters in upland areas, the tank does not require disinfection.

NR 323.04(2)(c)5.c. c. Dispose of plants and animals in the trash. An operator may not transfer plants or animals or water from one navigable waterway to another.

NR 323.04(2)(c)5.d. d. Wash equipment at a temperature of not less than 212 degrees Fahrenheit water (steam clean).

NR 323.04(2)(c)5.e. e. Wash equipment with soap and water or high pressure water of not less than 2000 pounds per square inch.

NR 323.04(2)(c)5.f. f. Allow equipment to dry thoroughly for not less than 5 days.

NR 323.04 Note Note: Additional drying techniques including drying through natural or mechanical means or changes in drying duration may be submitted to the department for review and approval.

NR 323.04(2)(c)5.g. g. Disinfect equipment with 200 parts per million (0.5 ounces per gallon) chlorine for not less than 10 minute contact time. Every effort should be made to keep the disinfection solution and rinse water out of surface waters.

NR 323.04 Note Note: Chlorine refers to either household bleach solution (5.25% chlorine) or granular chlorine (70% calcium hypochlorite).

NR 323.04(2)(c)5.h. h. Follow the most recent department approved disinfection protocols or department approved best management practices for infested waters. The department shall maintain on its website and make available at its offices a list of the most recent disinfection protocols or department approved best management practices for invasive species and viruses.

NR 323.04 Note Note: See the department’s website at dnr.wi.gov under the topic “Waterway and Wetlands”. Recommendations for additional disinfection or decontamination protocols or department approved best management practices may be submitted to the department for review and approval to be added to this list.

NR 323.04(2)(d) (d) Individual permit required.

NR 323.04(2)(d)1. 1. Activities which do not meet the applicable standards in par. (c) shall require an individual permit.

NR 323.04(2)(d)2. 2. The department has authority under s. 30.206 (3r), Stats., to require an individual permit in lieu of a general permit.

NR 323.04(3) (3) Individual permits.

NR 323.04(3)(a) (a) Procedures.

NR 323.04(3)(a)1. 1. Individual permits shall be processed according to the procedures in ch. NR 300.

NR 323.04(3)(a)2. 2. If the department determines that a proposal submitted under this section has the potential to impact an endangered or threatened species in accordance with s. 29.604, Stats., the application shall be deemed incomplete. The department may not consider the application complete or issue an individual permit until the applicant submits documentation to demonstrate one of the following:

NR 323.04(3)(a)2.a. a. The project avoids impacts to the endangered or threatened species in accordance with s. 29.604, Stats.

NR 323.04(3)(a)2.b. b. The project has received an incidental take authorization under s. 29.604, Stats.

NR 323.04(3)(a)3. 3. If the applicant modifies the project plans to meet the requirements of subd. 2., the modified plans shall be submitted before the department may consider the application complete or issue an individual permit.

NR 323.04(3)(b) (b) Applicable activities. A fish habitat structure which is not exempt under sub. (1) and is not authorized by a general permit under sub. (2) requires authorization by an individual permit pursuant to s. 30.12 (3m) (c), Stats.

NR 323.04(3)(c) (c) Standards. A fish habitat structure meeting the standards in s. 30.12 (3m), Stats., may be authorized under an individual permit.

NR 323.04(4) (4) Existing permits. A fish habitat structure which is authorized by an existing department permit shall continue to be authorized, provided the structure is maintained in compliance with all the conditions of the original permit. Any modifications to the structure that do not comply with the original permit conditions shall require a new individual permit and shall comply with all standards in this section.

NR 323.04 History History: CR 04-064: cr. Register April 2005 No. 592, eff. 5-1-05; CR 07-094: cr. (1) (c) 11. and (2) (c) 5. Register November 2008 No. 635, eff. 12-1-08; correction in (2) (b) made under s. 13.92 (4) (b) 7., Stats., Register May 2013 No. 689; CR 22-013: am. (1) (a), (2) (a) 1., (3) (a) 1. Register June 2023 No. 810, eff. 7-1-23.

NR 323.05 NR 323.05 Wildlife habitat structures.

NR 323.05(1) (1) Exemptions.

NR 323.05(1)(a) (a) Procedures. Exemptions shall be processed according to the procedures in ch. NR 300.

NR 323.05(1)(b) (b) Applicable activities. A nesting structure that meets all the standards in par. (c) shall be exempt under s. 30.12 (1g) (d), Stats.

NR 323.05 Note Note: Eligibility for an exemption or general permit does not automatically result in a federal permit or state water quality certification for fill in wetlands. Some projects involving minimal wetland fill may be eligible for authorization under a U.S. Army Corps of Engineers general permit which has already been granted state water quality certification or a general permit under s. 281.36 (3g) (b), Stats. (under development) All other projects affecting wetlands will require individual water quality certification including public notice as required by s. 401, Federal Clean Water Act, and s. 281.36 (3b) (b), Stats., and carried out under chs. NR 103 and 299. For further instructions, see the department’s website at http://dnr.wi.gov under the topic “Waterway and Wetland Permits.”

NR 323.05(1)(c) (c) General standards.

NR 323.05(1)(c)1. 1. The nesting structure may not be located in an area of special natural resource interest or in a public rights feature as described in s. NR 1.06.

NR 323.05(1)(c)2. 2. The nesting structure may be placed and maintained only by a riparian.

NR 323.05(1)(c)3. 3. The nesting structure shall be placed entirely within the riparian’s zone of interest, as determined by one of the methods outlined in ch. NR 326.

NR 323.05(1)(c)4. 4. The nesting structure shall be placed solely for the purpose of improving wildlife habitat.

NR 323.05(1)(c)5. 5. A deposit of sand, gravel or stone under s. 30.12 (1g) (a), Stats., may be associated with the placement of a nesting structure provided the deposit is limited to the area underneath or within one foot of the structure and is less than 2 cubic yards.

NR 323.05(1)(c)6. 6. Dredging under s. 30.20 (1g) (b) 1., Stats., is allowed for the placement of a nesting structure provided the dredging does not exceed 2 cubic yards.

NR 323.05(1)(c)7. 7. The surface area of a nesting structure may not exceed 25 square feet.

NR 323.05(1)(c)8. 8. Nesting structures shall be designed and constructed of unpainted wood or of materials that are non-gloss earthtone colors that blend into a natural shoreline setting during leaf-on condition.

NR 323.05(1)(c)9. 9. Erosion control measures shall meet or exceed the technical standards for erosion control approved by the department under subch. V of ch. NR 151. Any area where topsoil is exposed during construction shall be immediately seeded and mulched or riprapped to stabilize disturbed areas and prevent soils from being eroded and washed into the waterway.

NR 323.05 Note Note: These standards can be found at the following website: http://dnr.wi.gov/topic/stormwater/standards/.

NR 323.05(1)(c)10. 10. Unless part of a permanent stormwater management system, all temporary erosion and sediment control practices shall be removed upon final site stabilization. Areas disturbed during construction or installation shall be restored.

NR 323.05(1)(d) (d) Permit required. Activities which do not meet the standards in par. (c) or are determined ineligible for an exemption by the department shall require a general permit or individual permit.

NR 323.05(1)(e) (e) Exceptions. Wood duck houses and nesting platforms attached to or supported by existing trees in their natural condition are not regulated under ch. 30, Stats., or this chapter.

NR 323.05(2) (2) General permits.

NR 323.05(2)(a) (a) Procedures.

NR 323.05(2)(a)1. 1. General permits shall be processed according to the procedures in ch. NR 300.

NR 323.05(2)(a)2. 2. If the department determines that a proposal submitted under this section has the potential to impact an endangered or threatened species in accordance with s. 29.604, Stats., the application shall be deemed incomplete. The department may not consider the application complete or issue a general permit until the applicant submits documentation to demonstrate one of the following:

NR 323.05(2)(a)2.a. a. The project avoids impacts to the endangered or threatened species in accordance with s. 29.604, Stats.

NR 323.05(2)(a)2.b. b. The project has received an incidental take authorization under s. 29.604, Stats.

NR 323.05(2)(a)3. 3. If the applicant modifies the project plans to meet the requirements of subd. 2., the modified plans shall be submitted before the department may consider the application complete or issue a general permit.

NR 323.05(2)(b) (b) Applicable activities. A wildlife habitat structure that meets the standards in par. (c) shall be eligible for a general permit under ss. 30.12 (3) (d) and 30.206, Stats.

NR 323.05 Note Note: Eligibility for an exemption or general permit does not automatically result in a federal permit or state water quality certification for fill in wetlands. Some projects involving minimal wetland fill may be eligible for authorization under a U.S. Army Corps of Engineers general permit which has already been granted state water quality certification or a general permit under s. 281.36 (3g) (b), Stats. (under development) All other projects affecting wetlands will require individual water quality certification including public notice as required by s. 401, Federal Clean Water Act, and s. 281.36 (3b) (b), Stats., and carried out under chs. NR 103 and 299. For further instructions, see the department’s website at http://dnr.wi.gov under the topic “Waterway and Wetland Permits.”

NR 323.05(2)(c) (c) Standards.

NR 323.05(2)(c)1. 1. A wildlife habitat structure may be authorized under a general permit if it meets all the requirements in sub. (1) except for sub. (1) (c) 1., and all the requirements of this paragraph.

NR 323.05(2)(c)2. 2. Erosion control measures shall meet or exceed the technical standards for erosion control approved by the department under subch. V of ch. NR 151. Any area where topsoil is exposed during construction shall be immediately seeded and mulched or riprapped to stabilize disturbed areas and prevent soils from being eroded and washed into the waterway.

NR 323.05 Note Note: These standards can be found at the following website: http://dnr.wi.gov/topic/stormwater/standards/.

NR 323.05(2)(c)3. 3. Unless part of a permanent stormwater management system, all temporary erosion and sediment control practices shall be removed upon final site stabilization. Areas disturbed during construction or installation shall be restored.

NR 323.05(3) (3) Individual permits.

NR 323.05(3)(a) (a) Procedures.

NR 323.05(3)(a)1. 1. Individual permits shall be processed according to the procedures in ch. NR 300.

NR 323.05(3)(a)2. 2. If the department determines that a proposal submitted under this section has the potential to impact an endangered or threatened species in accordance with s. 29.604, Stats., the application shall be deemed incomplete. The department may not consider the application complete or issue an individual permit until the applicant submits documentation to demonstrate one of the following:

NR 323.05(3)(a)2.a. a. The project avoids impacts to the endangered or threatened species in accordance with s. 29.604, Stats.

NR 323.05(3)(a)2.b. b. The project has received an incidental take authorization under s. 29.604, Stats.

NR 323.05(3)(a)3. 3. If the applicant modifies the project plans to meet the requirements of subd. 2., the modified plans shall be submitted before the department may consider the application complete or issue an individual permit.

NR 323.05(3)(b) (b) Applicable activities. A wildlife habitat structure which is not exempt under sub. (1) and is not authorized by a general permit under sub. (2) requires authorization by an individual permit pursuant to s. 30.12 (3m) (c), Stats.

NR 323.05(3)(c) (c) Standards. A wildlife habitat structure meeting the standards in s. 30.12 (3m), Stats., may be authorized under an individual permit.

NR 323.05(4) (4) Existing permits. A wildlife habitat structure which is authorized by an existing department permit shall continue to be authorized, provided the structure is maintained in compliance with all the conditions of the original permit. Any modifications to the structure that do not comply with the original permit conditions shall require a new individual permit and shall comply with all standards in this section.

NR 323.05 History History: CR 04-064: cr. Register April 2005 No. 592, eff. 5-1-05; correction in (2) (b) made under s. 13.92 (4) (b) 7., Stats., Register May 2013 No. 689; CR 22-013: am. (1) (a), (2) (a) 1., (3) (a) Register June 2023 No. 810, eff. 7-1-23.

NR 323.06 NR 323.06 Enforcement.

NR 323.06(1) (1) Noncompliance with the provisions of ss. 30.12, 30.20 and 30.206, Stats., this chapter, or any conditions of an exemption, general permit or individual permit issued by the department, constitutes a violation and may result in a forfeiture, fine or imprisonment. The department may seek abatement under s. 30.294, Stats., for any activity in violation of ss. 30.12, 30.20 and 30.206, Stats.

NR 323.06(2) (2) If the activity may be authorized by a general permit under s. 30.206, Stats., failure of an applicant to follow the procedural requirements may not, by itself, result in abatement of the activity.

NR 323.06(3) (3) When an after-the-fact permit application has been filed with the department, the department shall follow the procedures in ch. NR 300 for violations.

NR 323.06(4) (4) Any violation of these rules shall be treated as a violation of the statutes they interpret or are promulgated under.

NR 323.06(5) (5) No person may place a fish or wildlife habitat structure in a navigable waterway if the activity is not eligible for an exemption, authorized by a general permit or individual permit issued under this chapter, or otherwise authorized under this chapter.

NR 323.06 History History: CR 04-064: cr. Register April 2005 No. 592, eff. 5-1-05; CR 22-013: am. (3) Register June 2023 No. 810, eff. 7-1-23.