Register July 2010 No. 655
Chapter NR 328
SHORE EROSION CONTROL STRUCTURES IN NAVIGABLE WATERWAYS
Subchapter I — Shore Erosion Control Structures on Inland Lakes and Impoundments
NR 328.05 General permits. NR 328.06 Individual permits. NR 328.07 Prohibited erosion control methods. NR 328.08 Data requirements and site assessment methods. Subchapter II — Municipal Breakwater Permits
NR 328.24 Conditions of permits. Subchapter III — Shore Erosion Control Structures on Rivers and Streams
NR 328.34 Pre-existing structures. NR 328.35 General permits. NR 328.36 Individual permits. NR 328.38 Data requirements and site assessment methods. Ch. NR 328 NoteNote: Sections NR 328.01 to 328.09 were created as emergency rules effective April 19, 2004. Sections NR 328.01 to 328.09 were repealed and recreated by emergency rule effective August 24, 2004.
NR 328.01(1)(1) The purpose of this subchapter is to establish reasonable procedures and limitations for exempt activities, general permits and individual permits for placement of shore erosion control structures in inland lakes and impoundments as regulated under s. 30.12, Stats., in order to protect the public rights and interest in the navigable, public waters of the state as defined in s. 30.10, Stats. NR 328.01(2)(2) The standards for exemptions, general permits and individual permits in this chapter balance the reasonable right of riparians to control shore erosion under Wisconsin law with the public rights and interests in navigable waters. (Doemel v. Jantz, 180 Wis. 225, 193 N.W., 393 (1923)). The public interest in navigable waters includes navigation, recreation, fish and wildlife habitat, water quality and natural scenic beauty. NR 328.01(3)(3) Natural shoreline features provide natural erosion control in various ways. Nearshore lakebeds and beach slopes change and shoals form, erosion uncovers or sorts out sand, gravel, cobbles, boulders and bedrock from beneath glacial till and other fine soils. These more energy resistant materials are formed into wave-breaking, energy-absorbing barriers that eliminate, or slow, further erosion. Natural vegetation provides erosion control in several ways. Plants form a network of roots that hold soil particles together and stabilize the bank. Exposed stalks, stems, branches, foliage and fallen trees dampen waves, reduce local flow velocities, and dissipate energy against the plant rather than eroding the soil. Vegetation also acts as a buffer to trap suspended sediment and induce its deposition. NR 328.01(4)(4) Shoreline erosion control structures allowed under this rule are setting-dependent and based on erosive energy at a site. Erosive energy is a reflection of habitat features at a site. Low-energy settings are found to contain fine-size nearshore sediments, stable natural vegetation, and absent or natural levels of erosion. In low-energy and some moderate energy sites vegetation can effectively meet erosion control needs without infringement on the public interest. Shore protection from vegetation alone may be inadequate in some low- to moderate-energy settings and many high-energy settings; therefore, methods that rely on technical structures or a combination of vegetation with technical structures, i.e., large substrates, may be necessary. Riprap, vegetated riprap and integrated toe protection are preferred structural shore protection methods in high-energy settings with erosion problems. NR 328.01(5)(5) Standards for exemptions are intended to provide clear and consistent requirements so that individuals can determine whether they qualify, and easily design projects to meet the requirements. To achieve this, exemption standards establish reasonable installation practices to minimize environmental impacts, establish reasonable construction and design requirements consistent with the purpose of the activity, and establish reasonable limitations on location. NR 328.01(6)(6) Standards for general permits are intended to ensure that cumulative adverse environmental impact of authorized activities is insignificant and that issuance of the general permit will not injure public rights or interests, cause environmental pollution as defined in s. 299.01 (4), Stats., or result in material injury to the rights of any riparian owner. To achieve this, general permit standards establish: construction and design requirements consistent with the purpose of the activity; location requirements that ensure that the activity will not have an adverse impact on fish and wildlife habitat, water quality and natural scenic beauty, or materially interfere with navigation or have an adverse impact on the riparian property rights of adjacent riparian owners. NR 328.01(7)(7) Standards and factors for individual permits are intended to provide direction for detailed evaluation of permit applications, and to balance case-by-case review with consistent decision-making. Individual permits may only be granted where the department determines that the structure will not materially obstruct navigation, will not be detrimental to the public interest, and will not materially reduce the flood flow capacity of a stream. NR 328.01 HistoryHistory: CR 02-099: cr. Register April 2005 No. 592, eff. 5-1-05. NR 328.02(1)(1) Except as provided in s. 30.2023, Stats., this subchapter applies to construction, placement and maintenance of shore erosion control structures regulated under s. 30.12 (1), (1g) (a), (i), (j) and (k), (2m), (3) (a) 3c., 3g., 3r. and 13. and (3m), Stats. Any person that intends to construct, place or maintain a shore erosion control structure in any inland lake or impoundment shall comply with all applicable provisions of this chapter and any permit issued under this chapter. NR 328.02 NoteNote: This subchapter does not apply to the Great Lakes or outlying waters as defined in s. 29.001(63), Stats. NR 328.02 NoteNote: Shore erosion control structures for lakes and impoundments in the areas described in s. 30.203, Stats., (Seawalls; Wolf River and Fox River basins) that do not qualify for an exemption are regulated under this chapter. NR 328.02(2)(2) Shore erosion control measures such as grading to establish a stable slope, revegetation or other bioengineering methods that do not involve the placement of structures on the bed of a waterway are not regulated under s. 30.12, Stats., or this subchapter. NR 328.02 NoteNote: A permit is required under s. 30.19, Stats., and ch. NR 341 if land disturbance or excavation exceeds 10,000 square feet on the bank of the navigable waterway. NR 328.02 HistoryHistory: CR 02-099: cr. Register April 2005 No. 592, eff. 5-1-05. NR 328.03NR 328.03 Definitions. In this subchapter: NR 328.03(1)(1) “Area of special natural resource interest” has the meaning in s. 30.01 (1am), Stats., and as identified by the department in s. NR 1.05. NR 328.03 NoteNote: “Area of special natural resource interest” means any of the following:
NR 328.03 Note(a) A state natural area designated or dedicated under ss. 23.27 to 23.29, Stats. NR 328.03 Note(b) A surface water identified as a trout stream by the department under s. NR 1.02 (7). NR 328.03 Note(bm) A surface water identified as an outstanding or exceptional resource water under s. 281.15, Stats. NR 328.03 Note(c) An area that possesses significant scientific value, as identified by the department in s. NR 1.05. NR 328.03 NoteInformation and lists can be obtained by contacting the department, or found on the department’s website at http://dnr.wi.gov, under the topic “Waterway and Wetland Permits”. NR 328.03(2)(2) “Biological shore erosion control structure” means a structure that relies solely on biological materials. NR 328.03(3)(3) “Biological materials” means living or organic materials that are biodegradable such as native grasses, sedges, forbs, shrubs and trees; live stakes and posts; non-treated wood; jute netting; fiber rolls and mats; logs; and branches. NR 328.03 NoteNote: Temporary breakwaters, with non-biodegradable elements, are considered a permissible element during the plant establishment phase of a biological erosion control project.
NR 328.03(5)(5) “Department” means the department of natural resources. NR 328.03(7)(7) “Grading” means the physical disturbance of the bank by the addition, removal or redistribution of soil. NR 328.03(8)(8) “Hard armoring” means a shore erosion control structure that relies solely on inert materials, and includes but is not limited to riprap and seawalls. NR 328.03(9)(9) “High energy site” means a site where the storm-wave height calculated under s. NR 328.08 (1) is greater than or equal to 2.3 feet, or where the erosion intensity score calculated under s. NR 328.08 (2) has a score of greater than 67. NR 328.03(10)(10) “Inert materials” means those materials that slowly degrade, such as chemically treated wood, stone, stainless and galvanized steel, plastics and synthetic polymers. NR 328.03(11)(11) “Integrated toe protection” means a structure combining 2 separate treatments: toe protection at the base of the bank and vegetation establishment on the remaining upper portion of the bank above the ordinary high water mark. NR 328.03 NoteNote: The maximum toe protection structure elevation is equal to the ordinary high water mark plus one-half of the storm-wave height.
NR 328.03 NoteNote: The toe protection relies on materials such as stone, armor units, fiber rolls or wattles to protect the base of the bank. Above the toe protection, the remainder of the bank is revegetated by installing a shoreland buffer or with brush layering, brush mattresses, fiber rolls, live stakes, vegetated geogrid, rolled erosion control products or wattles. Plant materials may also be incorporated as part of the shore protection design below the ordinary high water mark as well.
NR 328.03(12)(12) “Low energy site” means a site where the storm-wave height calculated under s. NR 328.08 (1) is less than 1.0 foot, or where the erosion intensity score calculated under s. NR 328.08 (2) has a score of 47 or less. NR 328.03(14)(14) “Maximum toe elevation” means the elevation of the bank toe mark plus the storm-wave height estimated under s. NR 328.08 (1). NR 328.03(15)(15) “Moderate energy site” means a site where the storm-wave height calculated under s. NR 328.08 (1) is greater than or equal to 1.0 foot but less than 2.3 feet, or where the erosion intensity score calculated under s. NR 328.08 (2) has a score of 48 to 67. NR 328.03 NoteNote: Common law doctrine of avulsion secures to waterfront property owners the ability to reclaim land suddenly lost to erosion (AG ex rel Becker v. Bay Boom Wild River and Fur Company, 172 Wis. 363 1920.)
NR 328.03(16)(16) “Offshore” means located a minimum of 10 horizontal feet waterward from the ordinary high water mark. NR 328.03(17)(17) “Ordinary high water mark” means the point on the bank or shore up to which the presence and action of water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognizable characteristic. NR 328.03(18)(18) “Navigable waterway” means any body of water with a defined bed and bank, which is navigable under the laws of the state. In Wisconsin, a navigable body of water is capable of floating the lightest boat or skiff used for recreation or any other purpose on a regularly recurring basis. NR 328.03 NoteNote: This incorporates the definition at s. 30.01(4m), Stats., and current case law, which requires a watercourse to have a bed and banks, Hoyt v. City of Hudson, 27 Wis. 656 (1871), and requires a navigable waterway to float on a regularly recurring basis the lightest boat or skiff, DeGayner & Co., Inc. v. DNR, 70 Wis. 2d 936 (1975); Village of Menomonee Falls v. DNR, 140 Wis. 2d 579 (Ct. App. 1987). NR 328.03(19)(19) “Permanent breakwater” means a structure constructed of stone, rock, concrete or other non-degradable materials and located offshore for the purpose of diminishing the force of the waves and protecting the shoreline. NR 328.03 NoteNote: These structures can be designed to provide fish and wildlife habitat in addition to erosion control by incorporating vegetation on the breakwater and in the nearshore zone. Examples of permanent breakwaters include stone dikes, barrier islands, stone islands and submerged offshore shoals.
NR 328.03(20)(20) “Replacement” means a degree of structural changes to the shore erosion control structure by which some or all of the structure is being removed and recreated. NR 328.03 NoteNote: For seawalls, any replacement of a portion of the seawall down to or at the footing of the structure is considered replacement. For riprap, replacement of filter fabric or replacement of the base substrate is considered replacement.
