“Duck Creek Drainage District" means Outagamie Drainage District No. 6 that is also known as the Duck Creek Drainage District and is located in Outagamie County.
“Fishing raft" means any raft, float or structure, including a raft or float with a superstructure and including a structure located or extending below or beyond the ordinary high-water mark of a water, which is designed to be used or is normally used for fishing, which is not normally used as a means of transportation on water and which is normally retained in place by means of a permanent or semipermanent attachment to the shore or to the bed of the waterway. “Fishing raft" does not include a boathouse or fixed houseboat regulated under s. 30.121
nor a wharf or pier regulated under ss. 30.12
“Fixed houseboat" means a structure not actually used for navigation which extends beyond the ordinary high-water mark of a navigable waterway and is retained in place either by cables to the shoreline or by anchors or spudpoles attached to the bed of the waterway.
“Flotation device" means any device used to provide flotation for a fishing raft, including each individual barrel or styrofoam coffin.
“Governing body" means a town board, a village board of trustees, a city council or a county board.
“Great Lakes water body" means Lake Superior or Lake Michigan and includes any bay or harbor that is part of Lake Superior or Lake Michigan.
“Harbor facility" means every facility useful in the maintenance or operation of a harbor, including transportation facilities of all types, terminal and storage facilities of all types, wharves, piers, slips, basins, ferries, docks, bulkheads and dock walls, and floating and handling equipment, power stations, transmission lines and other facilities necessary for the maintenance and operation of such harbor facilities.
“Line of navigation" means the depth of a navigable water that is the greater of the following:
Three feet, as measured at summer low levels.
The depth required to operate a boat on the navigable water.
“Mooring" when used as a noun means a mooring anchor and mooring buoy together with attached chains, cables, ropes and pennants and related equipment, unless the term is qualified or restricted.
“Mooring anchor" means any anchor or weight which is designed to rest on the bed or to be buried in the bed of a navigable water, which is designed to be attached by a chain, cable, rope or other mechanism to a mooring buoy and which is designed to be left in position permanently or on a seasonal basis.
“Mooring buoy" means any float or marker which is attached to a mooring anchor and either is suitable for attachment to a boat through the use of a pennant or other device or facilitates the attachment of the boat to the mooring anchor.
“Motor vehicle" has the meaning designated under s. 340.01 (35)
except that this term does not include snowmobiles.
“Municipality" means any town, village, city or county in this state.
“Navigable waters" or “navigable waterway" means any body of water which is navigable under the laws of this state.
“Net pen" means an enclosure placed in a body of water and used to hold or rear fish.
“Pier" means any structure extending into navigable waters from the shore with water on both sides, built or maintained for the purpose of providing a berth for watercraft or for loading or unloading cargo or passengers onto or from watercraft. Such a structure may include a boat shelter which is removed seasonally. Such a structure may include a boat hoist or boat lift, and the hoist or lift may be permanent or may be removed seasonally.
“Piling" means a group of piles.
“Riparian zone" means the area that extends from riparian land waterward to the line of navigation as determined by a method that establishes riparian zone lines between adjacent riparian owners in a manner that equitably apportions access to the line of navigation.
“Secretary" means the secretary of natural resources.
“Sensitive area" means an area of aquatic vegetation identified by the department as offering critical or unique fish and wildlife habitat, including seasonal or lifestage requirements, or offering water quality or erosion control benefits to the body of water.
“Surplus water" means any water of a stream that is not being beneficially used, as determined by the department.
“Swimming raft" means a floating platform without railings, roof or walls that is adequately anchored to the bed of navigable waters and is designed for swimming, diving and related activities.
“Watercraft" means any device used and designed for navigation on water.
“Wharf" means any structure in navigable waters extending along the shore and generally connected with the uplands throughout its length, built or maintained for the purpose of providing a berth for watercraft or for loading or unloading cargo or passengers onto or from watercraft. Such a structure may include a boat hoist or boat lift, and the hoist or lift may be permanent or may be removed seasonally.
“Wolf River municipality" means any city, village or town which adjoins or includes any part of the Wolf River or its stream tributaries from the Shawano dam downstream to Lake Poygan.
No threshold showing that a waterway is actually navigated for commercial or recreational purposes is necessary in order to prove that the waterway is navigable. City of Oak Creek v. Department of Natural Resources, 185 Wis. 2d 424
, 518 N.W.2d 276
(Ct. App. 1994).
Permit procedure for utility facilities. 30.025(1b)(a)
“Commission" means the public service commission.
“Permit" means an individual permit, a general permit, an approval, or a contract required under this subchapter or subch. II
, a permit or an approval required under ch. 31
, a storm water discharge permit required under s. 283.33 (1) (a)
, or a wetland general permit or wetland individual permit required under s. 281.36
or under rules promulgated under subch. II of ch. 281
to implement 33 USC 1341
Except as provided in pars. (b)
, this section applies to a proposal to construct a utility facility if the utility facility is required to obtain, or give notification of the wish to proceed under, one or more permits.
This section does not apply to a proposal to construct a utility facility if the only permit that the utility facility is required to obtain from the department is a storm water discharge permit under s. 283.33 (1) (a)
This section does not apply to a proposal to construct a utility facility for ferrous mineral mining and processing activities governed by subch. III of ch. 295
, unless the person proposing to construct the utility facility elects to proceed in the manner provided under this section.
(1m) Preapplication process.
Before filing an application under this section, a person proposing to construct a utility facility shall notify the department of the intention to file an application. After receiving such notice, the department shall confer with the person, in cooperation with the commission, to make a preliminary assessment of the project's scope, to make an analysis of alternatives, to identify potential interested persons, and to ensure that the person making the proposal is aware of all of the following:
The permits that the person may be required to obtain and the permits under which the person must give notification of the wish to proceed.
The information that the person will be required to provide.
The timing of information submissions that the person will be required to provide in order to enable the department to participate in commission review procedures and to process the application in a timely manner.
Any person proposing to construct a utility facility to which this section applies shall, in lieu of separate application for permits, submit one application for permits together with any additional information required by the department. The application shall be filed with the department at the same time that an application for a certificate is filed with the commission under s. 196.49
or in a manner consistent with s. 196.491 (3)
and shall include the detailed information that the department requires to determine whether an application is complete and to carry out its obligations under sub. (4)
. The department may require supplemental information to be furnished thereafter.
A person who applies to the commission for a certificate under s. 196.49
or 196.491 (3)
is eligible to apply under par. (a)
for any permit that the utility facility may require and to receive such permit.
Once the applicant meets the requirements of sub. (1s) (a)
, the department may schedule the matter for a public hearing. Notice of the hearing shall be given to the applicant and shall be published as a class 1 notice under ch. 985
and as a notice on the department's Internet website. The department may give such further notice as it deems proper, and shall give notice to interested persons requesting same. The department's notice to interested persons may be given through an electronic notification system established by the department. Notice of a hearing under this subsection published as a class 1 notice, as a notice on the department's Internet website, and through the electronic notification system established by the department shall include the time, date, and location of the hearing, the name and address of the applicant, a summary of the subject matter of the application, and information indicating where a copy of the application may be viewed on the department's Internet website. The summary shall contain a brief, precise, easily understandable, plain language description of the subject matter of the application. One copy of the application shall be available for public inspection at the office of the department, at least one copy in the regional office of the department, and at least one copy at the main public library, of the area affected. Notwithstanding s. 227.42
, the hearing shall be an informational hearing and may not be treated as a contested case hearing nor converted to a contested case hearing.
(2g) Participation in commission proceedings. 30.025(2g)(a)(a)
The department shall review every proposed utility facility subject to this section, including each location, site, or route proposed for the utility facility, to assess whether each proposed location, site, or route can meet the criteria for proceeding under the authority of or obtaining the required permits, and shall provide that information to the commission.
The department shall participate in commission investigations or proceedings under s. 196.49
or 196.491 (3)
with regard to any proposed utility facility that is subject to this section. In order to ensure that the commission's decision is consistent with the department's responsibilities, the department shall provide the commission with information that is relevant to only the following:
Environmental issues that concern the proposed utility facility.
Public rights in navigable waters that may be affected by the proposed utility facility.
Location, site, or route issues concerning the proposed utility facility, including alternative locations, sites, or routes.
The department shall treat the commission's decision under s. 196.49
or 196.491 (3)
as concluding that there is no practicable alternative for the utility facility if all of the following apply:
The department has participated in the commission's investigations or proceedings under sub. (2g)
If par. (a)
applies, the department may not require the applicant for the proposed utility facility to undertake further analysis of any utility facility alternatives, including an analysis of alternative methods of meeting the need for the project or alternative locations, sites, or routes in order to satisfy the criteria under sub. (3)
. The department may identify adjustments that may be required to address permitting issues within the location, site, or route approved by the commission under s. 196.49
or 196.491 (3)
(3) Permit Issuance.
The department shall issue, or authorize proceeding under, the necessary permits if it finds that the applicant has shown that the proposal:
Complies with environmental statutes administered by the department and rules promulgated thereunder, and federal environmental standards which the department has authority to enforce.
(3m) Environmental assessments for certain projects.
The department is not required to prepare an environmental impact statement under s. 1.11 (2) (c)
for the construction of a project that is specified in s. 196.491 (4) (c) 1m.
and for which one or more permits are required, but shall prepare an environmental assessment regarding the construction if the department's rules require an environmental assessment.
The permit may be issued, or the authority to proceed under a permit may be granted, upon stated conditions deemed necessary to assure compliance with the criteria designated under sub. (3)
Except as provided in par. (c)
, the department shall grant or deny the application for a permit for the utility facility within 30 days of the date on which the commission issues its decision under s. 196.49
or 196.491 (3)
Notwithstanding the deadline in par. (b)
, upon agreement between the department and a person who submits an application under s. 196.491 (3)
for a permit to construct a high-voltage transmission line, the department shall grant or deny the application within 45 days after the department receives all of the information necessary for it to carry out its obligations under this subsection, as determined by the department.
(5) Exclusive procedures.
The procedures provided under this section are exclusive and apply in lieu of any other procedures that would otherwise apply to permits applied for under this section.
Lower Wisconsin State Riverway.
For activities in the Lower Wisconsin State Riverway, as defined in s. 30.40 (15)
, no person obtaining a permit under subchs. I
may start or engage in the activity for which the permit was issued unless the person obtains any permit that is required for the activity under s. 30.44
History: 1989 a. 31
Enforcement of forfeitures; abatement of nuisances; infringement of public rights. 30.03(2)(2)
The district attorney of the appropriate county or, at the request of the department, the attorney general shall institute proceedings to recover any forfeiture imposed or to abate any nuisance committed under this chapter or ch. 31
All forfeitures shall be recovered by civil action as provided in ch. 778
and when collected shall be paid directly into the state treasury.
If the department learns of a possible violation of s. 281.36
or of the statutes relating to navigable waters or a possible infringement of the public rights relating to navigable waters, and the department determines that the public interest may not be adequately served by imposition of a penalty or forfeiture, the department may proceed as provided in this paragraph, either in lieu of or in addition to any other relief provided by law. The department may order a hearing under ch. 227
concerning the possible violation or infringement, and may request the hearing examiner to issue an order directing the responsible parties to perform or refrain from performing acts in order to comply with s. 281.36
or to fully protect the interests of the public in the navigable waters. If any person fails or neglects to obey an order, the department may request the attorney general to institute proceedings for the enforcement of the department's order in the name of the state. The proceedings shall be brought in the manner and with the effect of proceedings under s. 111.07 (7)
In determining an appropriate remedy for a violation under this chapter relating to a pier or wharf, the department may not order the removal of a pier or wharf unless the department considers all reasonable alternatives offered by the department and the owner of the pier or wharf relating to the location, design, construction, and installation of the pier or wharf.
No penalty may be imposed for violation of a hearing examiner's order under this subsection, but violation of a judgment enforcing the order may be punished in civil contempt proceedings.
Under sub. (4), the department of natural resources has jurisdiction to pursue any “possible violation" of the public trust doctrine as embodied in ch. 30. ABKA Limited Partnership v. Department of Natural Resources, 2002 WI 106
, 255 Wis. 2d 486
, 648 N.W.2d 854
The department of natural resources has a statutory duty under sub. (4) (a) to proceed against piers it believes to be in violation of ch. 30 or contrary to the public's rights in the waters of the state. No administrative rule limits the department's statutory enforcement authority, nor could it do so. Baer v. Department of Natural Resources, 2006 WI App 225
, 297 Wis. 2d 232
, 724 N.W.2d 638
Summary judgment is not permitted in forfeiture actions for violations of ch. 30. The relevant procedural statutes cannot be reconciled with the summary judgment procedure. Although the parties agreed to the filing of a written answer in lieu of an appearance, such an agreement cannot provide the basis to impose upon the statutory scheme a summary judgment procedure that does not otherwise exist. State v. Ryan, 2012 WI 16
, 338 Wis. 2d 695
, 809 N.W.2d 37
The department of natural resources may enforce the terms of lakebed grants under sub. (4) (a) as long as the enforcement does not conflict with s. 30.05. 78 Atty. Gen. 107
Applicability of chapter to municipally-owned submerged shorelands.
Nothing in this chapter relative to the establishment of bulkhead or pierhead lines or the placing of structures or deposits in navigable waters or the removal of materials from the beds of navigable waters is applicable to submerged shorelands in Lake Michigan, the title to which has been granted by the state to a municipality.