Chapter NR 328

NR 328.21(2)(b) (b) As part of the permit application, a public entity shall provide information to demonstrate to the satisfaction of the department that the public entity has all of the following:

NR 328.21(2)(b)1. 1. Statutorily assigned duties, authorities or requirements that may reasonably be construed to include control of shore erosion and protection of aquatic habitat.

NR 328.21(2)(b)2. 2. A system of governance that allows participation in decision making by a range of public interests.

NR 328.21(2)(b)3. 3. Institutional permanence of a duration similar to the life of the structure.

NR 328.21 History History: CR 01-103: cr. Register June 2002 No. 558, eff. 7-1-02.

NR 328.22 NR 328.22 Definitions. As used in this subchapter:

NR 328.22(1) (1) “Breakwater” means the placement of stone, concrete or similar inert material 10 or more horizontal feet offshore, generally parallel to the shoreline for the purpose of controlling shore erosion and preserving or restoring aquatic habitat. Breakwater designs may include, but are not limited, to stone dikes, stone islands, barrier islands and submerged offshore shoals.

NR 328.22(2) (2) “Comprehensive plan” means a plan that includes data on water resources, including public rights and interests in navigable waters; data on existing and potential uses of the water body and any use impairments; alternatives and recommended actions to protect or restore water resources or allocate uses of the water body.

NR 328.22(3) (3) “Department” means the department of natural resources.

NR 328.22(4) (4) “Municipality” means any town, village, city or county in this state.

NR 328.22(5) (5) “Structure” means anything man-made, having shape, form and utility either permanently or temporarily attached to or extending above the ground or lakebed.

NR 328.22 History History: CR 01-103: cr. Register June 2002 No. 558, eff. 7-1-02.

NR 328.23 NR 328.23 Standards. Breakwaters may be authorized where all of the following apply:

NR 328.23(1) (1) They are determined by the department to be the best management practice to control shore erosion and preserve or restore aquatic habitat.

NR 328.23(2) (2) The structure be designed by a licensed professional engineer to be stable under stated maximum water level and wave conditions in order to avoid a failed structure that quickly becomes a hazard to users of the waters.

NR 328.23(3) (3) The practice is specifically recommended for the purpose specified in sub. (1) in a comprehensive plan approved by the department for management of a specific water body and its watershed.

NR 328.23(4) (4) The requirements of s. 1.11, Stats., are met.

NR 328.23(5) (5) The department has complied with the notice and hearing procedures in s. 30.02 (3) and (4), Stats.

NR 328.23 Note Note: 2003 Wis. Act 118 repealed s. 30.02, Stats.

NR 328.23 History History: CR 01-103: cr. Register June 2002 No. 558, eff. 7-1-02.

NR 328.24 NR 328.24 Conditions of permits. In addition to any conditions deemed necessary to protect public rights and interests in navigable waters under s. 30.12, Stats., any authorization issued by the department under this subchapter shall contain the following conditions:

NR 328.24(1) (1) The structure shall remain under public ownership or control. Public ownership and control shall be established by documentation of at least one of the following as part of the permit application:

NR 328.24(1)(a) (a) Fee title ownership of the structure by a municipality or public entity.

NR 328.24(1)(b) (b) Lease with a term of 25 years or more of the structure to a municipality or public entity.

NR 328.24(1)(c) (c) Conservation easement on the structure held by a municipality or public entity that includes the rights to construct and maintain the structure, right of public access to the structure.

NR 328.24(1)(d) (d) Title to, lease of, or conservation easement securing necessary rights to use and management of the structure and the area to be protected from wave energy.

NR 328.24(2) (2) No ancillary structures or facilities, other than scientific measuring devices and navigational markers, shall be located on or attached to the breakwater.

NR 328.24 History History: CR 01-103: cr. Register June 2002 No. 558, eff. 7-1-02.

subch. III of ch. NR 328 Subchapter III — Shore Erosion Control Structures on Rivers and Streams

NR 328.31 NR 328.31 Purpose.

NR 328.31(1) (1) The purpose of this subchapter is to establish reasonable procedures and limitations for general permits and individual permits for placement of shore erosion control structures in rivers and streams 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 328.31(2) (2) The standards for 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 to navigation, recreation, fish and wildlife habitat, water quality and natural scenic beauty in navigable waters. (Doemel v. Jantz, 180 Wis. 225, 193 N.W., 393 (1923)).

NR 328.31(3) (3) The standard for general permits recognizes that stream channels naturally move back and forth across their floodplains as the energy of water current is dissipated against the stream banks. Watershed land cover, reflecting rainfall infiltration and soil type, predicts the nature of in-stream habitat features as well as the extent of stream channel movement.

NR 328.31(4) (4) This subchapter establishes differing choices of the types of general permits available based on ecoregion and land-use principles. Streams in predominantly forested watersheds have a high percent of natural shore vegetation, including wetlands and large woody cover. Streams of the Northern Lakes and Forests and the North Central Hardwood Ecoregions are environmentally healthy in comparison to other ecoregions that contain more agricultural and urban land use. Streams in predominantly forested watersheds also exhibit seasonally stable flows. Conversely, streams in agriculturally dominant watersheds exhibit more frequent and larger flooding events. These higher flows create severe bank erosion problems. Eroding banks deliver large amounts of sediment and impair instream habitat. Streams in predominantly urban watersheds are frequently confined by man-made structures, residences, and industries that cannot be moved. This subchapter establishes a broader array of general permits available for streams in agricultural or urban dominant watersheds.

NR 328.31(5) (5) This subchapter authorizes bank erosion control treatments based on erosive potential at a site within the stream. Erosive potential is a reflection of habitat features at a site. Natural shoreline features provide natural erosion control in various ways. The force of current sorts out sand, gravel, cobbles, boulders and bedrock from beneath glacial till and other fine soils. These more energy resistant materials form energy-absorbing barriers that eliminate, or slow, erosion. Natural vegetation provides erosion control in several ways. Plant roots form a matrix that holds soil particles together to stabilize banks. 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. Low-erosion potential sites are often typified by abundant natural vegetation, gradually sloped banks, gravel/rubble/boulder substrates at the toe of the bank, and no stratified soil layers. At low erosion potential and some moderate erosion potential sites, vegetation can effectively meet erosion control needs without infringement on habitat, navigation, natural scenic beauty or other public interests. Vegetation alone may be inadequate in some moderate erosion potential sites and many high erosion potential sites; therefore, methods that rely on technical structures or a combination of vegetation with technical structures may be necessary. Re-vegetated, topsoil-covered riprap and integrated bank protection are preferred structural bank protection methods in high-erosive potential settings.

NR 328.31(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 328.31(7) (7) 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 328.31 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.

NR 328.32 NR 328.32 Applicability.

NR 328.32(1) (1) Except as provided in s. 30.2023, Stats., this subchapter applies to construction, placement and maintenance of bank erosion control structures regulated under s. 30.12 (1), (1g) (a), and (k), (2m), (3) (a) 3r. and 13. and (3m), Stats. Any person that intends to construct, place or maintain a bank erosion control structure in any river or stream shall comply with all applicable provisions of this chapter and any permit issued under this chapter.

NR 328.32(2) (2) Erosion control measures such as grading to establish a stable slope, revegetation or other bioengineering methods that do not involve the placement of structures below the ordinary high water mark of a waterway or disturbance of more than 10,000 square feet on the bank are not regulated under s. 30.12 or 30.19, Stats., or this subchapter.

NR 328.32(3) (3) Bank erosion control structures solely located above the ordinary high water mark are likely to migrate below the OHWM as the energy of water current is dissipated against the toe of the stream bank. When this migration occurs, the bank erosion control structure is considered subject to the provisions of this chapter.

NR 328.32 Note Note: A permit is required if land disturbance or excavation exceeds 10,000 square feet on the bank of the navigable waterway (s. 30.19, Stats., and ch. NR 341) or if the activity is conducted in a wetland (ss. 281.17 and 281.36, Stats.).

NR 328.32 Note Note: Erosion control activities may be subject to county, city or village ordinances. Local zoning ordinances place restrictions on grading, buffers, and the cutting of vegetation in the shoreland zone. The riparian is required to comply with, and obtain all necessary permits under, local shoreland ordinances.

NR 328.32 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.

NR 328.33 NR 328.33 Definitions. In this subchapter:

NR 328.33(1) (1) “Bank erosion control structure” means a structure with defined shape, size, form and utility constructed and maintained for the purpose of protecting a streambank from erosion.

NR 328.33(2) (2) “Biological materials” means living or organic materials that are 100% biodegradable such as native grasses, sedges, forbs, shrubs and trees; live stakes and posts; non-treated wood for staking; jute netting; fiber rolls and mats, erosion control blankets and turf reinforcement mats composed of natural fibers; logs; root wads; tree revetments; and branches.

NR 328.33 Note Note: Temporary breakwaters, with non-biodegradable elements, are considered a permissible element during the plant establishment phase of a biological erosion control project.

NR 328.33(3) (3) “Biostabilization” means a structure that relies solely on biological materials and may include bank reshaping. Biological bank erosion control structures include but are not limited to native vegetation, fiber rolls, fiber mats, live stakes, brush mattresses, fascines, branch packing, erosion control blankets, turf reinforcement mats, brush layering, encapsulated soil lifts, or revegetation by seeding.

NR 328.33(4) (4) “Commercial marina” has the meaning in ch. NR 326.

NR 328.33(5) (5) “Department” means the department of natural resources.

NR 328.33(6) (6) “Grading” means the physical disturbance of the bank by the addition, removal or redistribution of soil.

NR 328.33(7) (7) “Inert materials” means those materials that slowly degrade, such as chemically treated wood, stone, stainless and galvanized steel, plastics and synthetic polymers.

NR 328.33(8) (8) “Integrated bank treatment” means a structure that combines 2 separate treatments: structural treatment with inert materials for toe protection at the base of the bank and biostabilization on the upper portion of the bank.

NR 328.33(9) (9) “Municipal marina” has the meaning in ch. NR 326.

NR 328.33(10) (10) “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 328.33(11) (11) “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 328.33 Note Note: 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 328.33(12) (12) “Replacement” means a degree of structural changes to the bank erosion control structure by which some or all of the structure is removed and recreated. 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.

NR 328.33(13) (13) “Riparian” means an owner of land abutting a navigable waterway.

NR 328.33(14) (14) “Riprap” means a layer or layers of rock, including filter material, placed on the bed and bank of a navigable waterway to prevent erosion, scour or sloughing of the existing bank.

NR 328.33(15) (15) “Seawall” means an upright structure that is steeper than 1.5 feet vertical to one foot horizontal and that is installed parallel to the bank to prevent the sliding or slumping of the land and to protect the adjacent upland from the action of surface water. Seawalls are commonly constructed of timber, rock (including gabions), concrete, steel or aluminum sheet piling, and may incorporate biological components. Biostabilization structures steeper than 1.5 feet vertical to one foot horizontal, such as encapsulated soil-lifts are not considered seawalls.

NR 328.33(16) (16) “Structural treatment” means a system of non-living materials with a specific configuration installed as a means of bank stabilization including, but not limited to, riprap, tree revetments, logs, rootwads, dormant post, jacks, coir logs, bulkheads, and stream barbs.

NR 328.33(17) (17) “Toe” means the break in slope at the foot of a bank where it meets the streambed.

NR 328.33(18) (18) “Wetland” 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 328.33 Note Note: Common law doctrine of avulsion secures to the waterfront property owner 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 328.33 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.

NR 328.34 NR 328.34 Pre-existing structures. A streambank erosion control structure authorized by department permit prior to August 1, 2007, 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 permit and shall comply with all standards in this section. Bank erosion control structures that were not authorized prior to August 1, 2007, require authorization prior to any repair, modification or replacement.

NR 328.34 History History: CR 06-126: cr. Register July 2007 No. 619, eff. 8-1-07.

NR 328.35 NR 328.35 General permits.

NR 328.35(1) (1) Procedures. General permits shall be processed according to the procedures in ch. NR 300.

NR 328.35(2) (2) Applicable activities. Projects that meet all the criteria in sub. (3) and either sub. (4), (5) or (6) are eligible for general permit coverage under ss. 30.12 (3) (d) and 30.206, Stats.

NR 328.35(3) (3) General standards.

NR 328.35(3)(a) (a) 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 328.35(3)(a)1. 1. The project avoids impacts to the endangered or threatened species in accordance with s. 29.604, Stats.

NR 328.35(3)(a)2. 2. The project has received an incidental take authorization under s. 29.604, Stats.

NR 328.35(3)(b) (b) If the applicant modifies the project plans to meet the requirements of par. (a), the modified plans shall be submitted before the department may consider the application complete or issue a general permit.

NR 328.35(3)(c) (c) The bank erosion control structure may not be placed in a wetland.

NR 328.35 Note Note: Eligibility for a 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 with 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 328.35(3)(d) (d) Bank erosion control structures may be placed only by a riparian.

NR 328.35(3)(e) (e) To minimize adverse impacts on fish movement, fish spawning, egg incubation periods and high stream flows, placement may not occur during any of the following time periods:

NR 328.35(3)(e)1. 1. For trout streams identified under s. NR 1.02 (7) and perennial tributaries to those trout streams, September 15 through May 15.

NR 328.35(3)(e)2. 2. For all waters not identified in subd. 1. and located south of state highway 29, March 15 through May 15.

NR 328.35(3)(e)3. 3. For all waters not identified in subd. 1. and located north of state highway 29, April 1 through June 1.

NR 328.35(3)(e)4. 4. The applicant may request that the requirement in subd. 1., 2. or 3. 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 shore erosion control 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 328.35(3)(f) (f) Any grading, excavation and land disturbance shall be confined to the minimum necessary for the construction and may not exceed 10,000 square feet.

NR 328.35 Note Note: 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. Bank shaping activities necessary to protect stream and river shorelines from erosion on lands used entirely for agriculture are exempt from this subchapter.

NR 328.35(3)(g) (g) 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 sodded, seeded and mulched, covered with erosion mat or riprapped to stabilize disturbed areas and prevent soils from being eroded and washed into the waterway.