See also ch. NR 326
, Wis. adm. code.
When a department of natural resources decision prohibited a structure under s. 30.13 and the riparian owner did not seek review under s. 227.20 [now s. 227.57], the trial court had no jurisdiction to hear an action by the owner seeking a declaration that the structure was a “pier" permitted under s. 30.13. Kosmatka v. Department of Natural Resources, 77 Wis. 2d 558
, 253 N.W.2d 887
In considering whether a proposed structure is detrimental to the public interest, the department of natural resources is authorized to weigh relevant policy factors including the preservation of the natural beauty of the state's waters, the public's fullest use of the waters, and the convenience of riparian owners. Sterlingworth Condominium Association v. Department of Natural Resources, 205 Wis. 2d 710
, 556 N.W.2d 791
(Ct. App. 1996), 95-3526
The permitting criteria under department of natural resources rules are supplemental to the criteria under sub. (1). To escape the requirement of obtaining a permit, the requirements of both the statute and rules must be met. Sea View Estates Beach Club, Inc. v. Department of Natural Resources, 223 Wis. 2d 138
, 588 N.W.2d 667
(Ct. App. 1998), 97-3418
Riparian rights are qualified by reasonable use and are subordinate to public rights. The common law requires reasonable use by riparian owners to be determined by the extent and capacity of the lake, the uses to which it has been put, and the rights that other riparian owners on the same lake also have. The inquiry is highly fact-specific, and determinations are made on a case-by-case basis. Hilton v. Department of Natural Resources, 2006 WI 84
, 293 Wis. 2d 1
, 717 N.W.2d 166
Historical use, however it is determined, is one of the factors that an administrative law judge may weigh in balancing the private rights and public interests at stake in riparian rights/public trust doctrine cases. The cases do not establish any set definition of historical use or any hard and fast methodology for determining it. That historic use must be based on something like passage of an ordinance or department of natural resources contact is not required by public policy considerations. An ALJ may review local ordinances in making a permit determination but is not required to do so. Hilton v. Department of Natural Resources, 2006 WI 84
, 293 Wis. 2d 1
, 717 N.W.2d 166
Wharves and piers placed and maintained by persons other than riparian owners. 30.131(1)(1)
Notwithstanding s. 30.133
, a wharf or pier of the type which does not require a permit under ss. 30.12 (1)
that abuts riparian land and that is placed in a navigable water by a person other than the owner of the riparian land may not be considered to be an unlawful structure on the grounds that it is not placed and maintained by the owner if all of the following requirements are met:
The owner of the riparian land or the owner's predecessor in interest entered into a written easement that was recorded before December 31, 1986, and that authorizes access to the shore to a person who is not an owner of the riparian land.
The person to whom the easement was granted or that person's successor in interest is the person who places and maintains the wharf or pier.
The placement and maintenance of the wharf or pier is not prohibited by and is not inconsistent with the terms of the written easement.
The wharf or pier has been placed seasonally in the same location at least once every 4 years since the written easement described in par. (a)
The wharf or pier is substantially the same size and configuration as it was on April 28, 1990, or during its last placement before April 28, 1990, whichever is later.
The placement of the wharf or pier complies with the provisions of this chapter, with any rules promulgated under this chapter and with any applicable municipal regulations or ordinances.
Notwithstanding s. 30.133
, an easement under sub. (1)
may be conveyed if it is conveyed at the same time, and to the same person, that the land to which the easement is appurtenant is conveyed.
History: 1989 a. 217
; 1993 a. 167
This section does not grant rights to a nonriparian owner vis a vis a riparian owner. The statute speaks only to the lawfulness of a pier maintained under a nonriparian access easement. The terms and purpose of the easement may include the right to use and maintain the pier. Wendt v. Blazek, 2001 WI App 91
, 242 Wis. 2d 722
, 626 N.W.2d 78
Prohibition against conveyance of riparian rights. 30.133(1)(1)
Beginning on April 9, 1994, and except as provided in s. 30.1335
, no owner of riparian land that abuts a navigable water may grant by an easement or by a similar conveyance any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water. This right to cross the land may not include the right to place any structure or material, including a boat docking facility, as defined in s. 30.1335 (1) (a)
, in the navigable water.
This section does not apply to riparian land located within the boundary of any hydroelectric project licensed or exempted by the federal government, if the conveyance is authorized under any license, rule or order issued by the federal agency having jurisdiction over the project. This section does not apply to riparian land that is associated with an approval required for bulk sampling or mining that is required under subch. III of ch. 295
Small lock boxes were not “intended for any type of independent use" within the meaning of a condominium “unit" under s. 703.02 (15) and were not valid condominium units. Without a valid condominium unit, the transfer of riparian rights purportedly attached to the condominium lock boxes was in violation of this section. ABKA Limited Partnership v. Department of Natural Resources, 2002 WI 106
, 255 Wis. 2d 486
, 648 N.W.2d 854
This section prohibits the severing by easement or by a similar conveyance of riparian rights from the riparian lands to which they are attached, preventing the reservation of riparian rights apart from riparian land by an easement, as well as the granting of riparian rights to a nonriparian. Berkos v. Shipwreck Bay Condominium Association, 2008 WI App 122
, 313 Wis. 2d 609
, 758 N.W.2d 215
Marina condominiums. 30.1335(1)(a)
“Boat docking facility" means a pier, wharf, boat slip, or multi-boat-slip facility.
“Dwelling" means a structure or part of a structure that is used or intended to be used as a home or residence by one or more persons to the exclusion of all others.
“Marina condominium" means a condominium in which the common elements, limited common elements, or condominium units consist of or include boat docking facilities and to which either or both of the following apply:
One or more of the boat docking facilities is not appurtenant to a dwelling.
No owner of riparian land may create a marina condominium on the riparian land on or after June 1, 2007. Any declaration for a marina condominium that is recorded on or after June 1, 2007, is invalid and establishes ownership of the riparian land as a tenancy in common that is held by the owners of the marina condominium units.
Notwithstanding sub. (2)
, a declaration that creates or purports to create a marina condominium and that is recorded before June 1, 2007, shall be effective in creating the marina condominium regardless of subsequent activity affecting the declaration.
If a marina condominium as described in par. (a)
contains more than 300 boat slips, the declarant shall make at least 40 percent of the total number of boat slips in the marina condominium available for rent or for transient use by the public. When the declarant conveys title to, or another interest in, a condominium unit that is affected by this restriction on use, the declarant shall include a statement of the restriction in the instrument of conveyance.
For a marina that is converted into a marina condominium, if the owner of the marina is issued a permit or other authorization under this subchapter to place, maintain, or use a boat docking facility before the date that a declaration was recorded converting the marina into a marina condominium, the permit or authorization shall be deemed to satisfy the requirements of the other sections of this subchapter and may not be rescinded or modified by the department or a municipality or by court or administrative order if the grounds for the rescission or modification are based on the fact that the marina has been converted to a marina condominium. The permit or authorization shall remain in effect regardless of any subsequent activity affecting the declaration. This paragraph does not apply to any permit or authorization that is issued after the date that the declaration was recorded converting the marina into a marina condominium.
For a marina condominium that was not previously a marina, if the owner of a marina condominium is issued a permit or other authorization under this subchapter to place, maintain, or use a boat docking facility, the permit or authorization shall be deemed to satisfy the requirements of the other sections of this subchapter and may not be rescinded or modified by the department or a municipality or by court or administrative order if the grounds for the rescission or modification are based on the fact that the boat docking facility is part of a marina condominium as opposed to a marina. The permit or authorization shall remain in effect regardless of any subsequent activity affecting the declaration.
(5) Increase in size or number.
An amendment or modification of a declaration as described under sub. (3) (a)
may not increase the size of the boat docking facility or the size or the number of boat slips in a boat docking facility.
(6) Subsequent activity affecting a declaration.
For purposes of this section, subsequent activity affecting the declaration consists of any of the following:
Any amendment, modification, or restatement of the declaration by court or administrative order or by consent of the owners of the condominium units as authorized under ch. 703
Any determination by court or administrative order that the declaration is void or voidable or that the condominium units in the condominium are not intended for any type of independent use.
(7) Department enforcement.
Notwithstanding sub. (4)
, the department retains the authority to enforce the terms and conditions of a permit or other authorization except to the extent that such terms and conditions relate to the form of ownership of a boat docking facility.
History: 2007 a. 20
; 2009 a. 180
Use of exposed shore areas along streams. 30.134(1)(a)
“Artificial ditch" means a ditch, channel, canal or other stream of water that has no prior history as a stream.
“Exposed shore area" means the area of the bed of a navigable body of water that is between the ordinary high-water mark and the water's edge.
“Riparian" means the owner, lessee or occupant of land that abuts a navigable body of water.
Members of the public may use any exposed shore area of a stream without the permission of the riparian only if it is necessary to exit the body of water to bypass an obstruction.
(3) Restrictions; members of public. 30.134(3)(a)(a)
In using an exposed shore area of a stream, as authorized under sub. (2)
, a member of the public may not enter the exposed shore area except from the water, from a point of public access on the stream, or with the permission of the riparian.
Use of an exposed shore area of a stream by members of the public does not grant an easement or other right to the exposed shore area that is greater than the right granted to the public under this section.
(4) Restrictions; riparians; others. 30.134(4)(a)(a)
No riparian may prohibit a member of the public from using, as authorized under this section, an exposed shore area of a stream.
No riparian may charge a fee for the use, as authorized under this section, of an exposed shore area of a stream.
No person may obstruct a highway with the intention to impede or prohibit access by the public to an exposed shore area of a stream.
The right granted to the public under this section to use an exposed shore area of a stream does not apply to any of the following:
An exposed shore area of an impoundment on a stream.
Any location on a stream where there is no surface water flowing in the stream.
History: 1999 a. 9
; 2001 a. 16
Regulation of water ski platforms and jumps. 30.135(1)(1)
A riparian owner placing a water ski platform or water ski jump in a navigable waterway is exempt from the permit requirements under this chapter if all of the following requirements are met:
The platform or jump does not interfere with public rights in navigable waters.
The platform or jump does not interfere with rights of other riparian owners.
The platform or jump is located at a site that ensures adequate water depth and clearance for safe water skiing.
If the department determines that any of the requirements under sub. (1)
are not met, the riparian owner shall submit an application for an individual permit to the department. The notice and hearing provisions under s. 30.208 (3)
apply to the application.
History: 1997 a. 27
; 2003 a. 118
Reports of and hearings on violations. 30.14(1)(1)
Municipalities to report violations.
The governing body of each municipality shall promptly report to the department every violation of s. 30.12
which occurs or which it has reason to believe is likely to occur within the municipal boundaries.
(2) Hearings by department.
Upon complaint by any person to the department that any wharf, pier or other structure exists in navigable water in violation of s. 30.12
or that any wharf, pier or other structure proposed to be built in navigable water will violate s. 30.12
, the department shall investigate and may hold a hearing to determine whether the wharf, pier, or other structure is or would be in violation of those sections. If no hearing is held, the complainant shall be informed of the results of the investigation.
History: 1987 a. 374
; 1997 a. 174
Penalty for unlawful obstruction of navigable waters. 30.15(1)(1)
Any person who does any of the following shall forfeit not less than $10 nor more than $500 for each offense:
Unlawfully obstructs any navigable waters and thereby impairs the free navigation thereof.
Unlawfully places in navigable waters or in any tributary thereof any substance that may float into and obstruct any such waters or impede their free navigation.
Constructs or maintains in navigable waters, or aids in the construction or maintenance therein, of any boom not authorized by law.
Constructs or places any structure or deposits any material in navigable waters in violation of s. 30.12
(3) Each day a separate violation.
Each day during which an obstruction, deposit or structure exists in violation of sub. (1)
is a separate offense.
History: 1987 a. 374