Chapter NR 341

Register July 2010 No. 655

Chapter NR 341

GRADING ON THE BANK OF NAVIGABLE WATERWAYS

NR 341.01   Purpose.

NR 341.02   Applicability.

NR 341.03   Definitions.

NR 341.035   Bank determination.

NR 341.04   Grading application.

NR 341.05   Erosion control plan requirements.

NR 341.06   Stormwater management plan requirements.

NR 341.07   Construction site inspections and maintenance.

NR 341.08   General permit for project sites.

NR 341.09   Individual permits.

NR 341.10   Enforcement.

Ch. NR 341 Note Note: Chapter NR 341 was created as an emergency rule effective May 19, 2004.

NR 341.01 NR 341.01 Purpose. The purpose of this chapter is to establish criteria defining those activities needing a grading permit for grading sites as required by s. 30.19 (1g) (c), Stats.; and to specify permit requirements necessary to protect public rights and interest and to protect riparian rights for grading sites regulated under this chapter.

NR 341.01 History History: CR 04-085: cr. Register April 2005 No. 592, eff. 5-1-05.

NR 341.02 NR 341.02 Applicability.

NR 341.02(1) (1) Grading sites. This chapter applies to activities regulated under s. 30.19 (1g) (c), Stats. An application for a grading permit shall be filed with the department pursuant to ch. NR 300 by any person that intends to grade or remove soil from the bank of any navigable waterway where the area exposed by the grading or removal will exceed 10,000 square feet on the surface of the bank as determined in s. NR 341.035. This includes areas that are part of a larger common plan of development or sale where multiple separate and distinct grading activities may be taking place at different times on different schedules, but under one plan, such that the total area exposed by grading or removal will exceed 10,000 square feet on the bank.

NR 341.02 Note Note: Nonmetallic mining projects shall be processed under ch. NR 340 and shall meet all the standards in ch. NR 340 not ch. NR 341.

NR 341.02(2) (2) NR 216 construction permits. Sites in compliance with a construction site stormwater discharge permit administered under subch. III of ch. NR 216 and also meeting the conditions of s. NR 341.08 shall be deemed to be in compliance with the provisions of this chapter.

NR 341.02(3) (3) Local administration of NR 216. Sites in compliance with the terms of an authorized local program for the administration of construction site stormwater discharge permits under subch. III of ch. NR 216, and consistent with the conditions of s. NR 341.08 as well as procedural requirements agreed to in writing between the department and the municipality shall be deemed to be in compliance with the provisions of this chapter.

NR 341.02(4) (4) Exemptions. This chapter does not apply to:

NR 341.02(4)(a) (a) The construction or repair of any public highway, where public highway has the meaning given for highway in s. 340.01 (22), Stats.

NR 341.02(4)(b) (b) Any agricultural use of land.

NR 341.02(4)(c) (c) An activity that affects a navigable inland lake that is located wholly or partly in any county having a population of 750,000 or more.

NR 341.02(4)(d) (d) Any activity that affects a portion of Lake Michigan, Lake Superior or a navigable stream that is located within a county having a population of 750,000 or more.

NR 341.02 Note Note: The landowner of a site exempt under pars. (c) and (d) is still required to submit a notice of intent under subch. III of ch. NR 216 for land disturbing construction activity of one or more acres.

NR 341.02 History History: CR 04-085: cr. Register April 2005 No. 592, eff. 5-1-05; CR 22-013: am. (1) Register June 2023 No. 810, eff. 7-1-23.

NR 341.03 NR 341.03 Definitions. For the purposes of this chapter the following definitions apply:

NR 341.03(1) (1) “Agricultural use of land” means planting, growing, cultivating and harvesting of crops for human or livestock consumption, pasturing or yarding of livestock, sod farms and beekeeping. This definition does not include the construction of structures such as barns, manure storage facilities or barnyard runoff control systems.

NR 341.03 Note Note: This definition is equivalent to the definition in s. 30.40 (1), Stats., and differs from the definition in ss. NR 151.002 (2) and 216.42 (2) only in that beekeeping is included and tree nurseries are not included.

NR 341.03(2) (2) “Department” means the department of natural resources.

NR 341.03(3) (3) “Final stabilization” means that all land disturbing construction activities at the grading site have been completed and that a uniform perennial vegetative cover has been established with a density of at least 70% of the cover for the unpaved areas and areas not covered by permanent structures or that employ equivalent permanent stabilization measures.

NR 341.03(4) (4) “Grading” means the physical disturbance of the land surface by the addition, removal or redistribution of soil.

NR 341.03(5) (5) “Land disturbing construction activity” means any man-made alteration of the land surface resulting in a change in topography or existing vegetative or non-vegetative soil cover that may result in stormwater runoff and lead to increased soil erosion and movement of sediment into waters of the state. Land disturbing construction activity includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling and grading activities.

NR 341.03(6) (6) “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 341.03 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 341.03(7) (7) “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 341.03(8) (8) “Priority navigable waterway” has the meaning in s. 30.19 (1b) (c), Stats., and as identified by the department in s. NR 1.07.

NR 341.03 Note Note: Section 30.19 (1b) (c), Stats., provides that “priority navigable waterway” means any of the following:

NR 341.03 Note 1. A navigable waterway, or a portion of a navigable waterway, that is identified as an outstanding or exceptional resource water under s. 281.15, Stats.

NR 341.03 Note 2. A navigable waterway, or a portion of a navigable waterway, identified as a trout stream.

NR 341.03 Note 3. A lake that is less than 50 acres in size.

NR 341.03 Note 4. Any other navigable waterway, or portion of a navigable waterway, that the department has determined, by rule, contains sensitive fish and aquatic habitat and that the department has specifically identified by rule.

NR 341.03 Note Information 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 341.03(9) (9) “Stabilize” means the process of making a site steadfast or firm, minimizing soil movement by the use of practices such as mulching and seeding, sodding, landscaping, paving, graveling or other appropriate measures.

NR 341.03(10) (10) “Total project area” means the area of land disturbing construction activity both within and outside of the defined bank, if it is part of the same project.

NR 341.03 History History: CR 04-085: cr. Register April 2005 No. 592, eff. 5-1-05.

NR 341.035 NR 341.035 Bank determination.

NR 341.035(1) (1) Determination of the bank. For purposes of establishing jurisdiction under s. 30.19, Stats., the bank of a navigable waterway shall be determined as follows:

NR 341.035(1)(a) (a) Non-priority navigable waterways. For navigable waterways that are not priority navigable waterways, the bank is 75 feet landward from the ordinary high water mark. However, if at 75 feet or less from the ordinary high water mark the slope is 12% or greater, the bank shall extend further landward to the point where the slope of the land becomes less than 12%, provided the slope is less than 12% for more than 50 feet. See Figure 1.

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NR 341.035(1)(b) (b) Priority navigable waterways. For priority navigable waterways, the bank is 300 feet landward from the ordinary high water mark. However, if at 300 feet or less from the ordinary high water mark the slope is 10% or greater, the bank shall extend further landward to the point where the slope of the land becomes less than 10%, provided the slope is less than 10% for more than 50 feet.

NR 341.035(1)(c) (c) Complete interruption. Notwithstanding pars. (a) and (b), the bank may not include any areas where the slope or drainage of the land into the navigable waterway is completely interrupted. Completely interrupted means a topographic break that stops runoff from reaching navigable waters.

NR 341.035(2) (2) Measurements. For purposes of establishing jurisdiction under s. 30.19, Stats., the measurement of the bank of a navigable waterway shall be determined as follows:

NR 341.035(2)(a) (a) The bank distance shall be measured on a horizontal plane.