Chapter 30

30.18 Cross-reference Cross-reference: See also chs. NR 142 and 300, Wis. adm. code.

30.18 Annotation This section is to be strictly construed. Any diversion of water lawful at common law is permitted without a permit unless it is for irrigation, agriculture, or to maintain normal water levels. State ex rel. Chain O’Lakes Protective Association v. Moses, 53 Wis. 2d 579, 193 N.W.2d 708.

30.18 Annotation This section applies to diversions from nonnavigable, as well as from navigable, streams. Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734 (1974).

30.18 Annotation The legislature abrogated the common law riparian right of irrigation and substituted the permit procedure under sub. (3). Omernick v. Department of Natural Resources, 71 Wis. 2d 370, 238 N.W.2d 114 (1974).

30.18 Annotation Section 94.26 exempts cranberry growers from permit requirements of this section. State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980).

30.19 30.19 Enlargement and protection of waterways.

30.19(1b) (1b) Definition. In this section:

30.19(1b)(a) (a) “Artificial water body” means a body of water that does not have a history of being a lake or stream or of being part of a lake or stream.

30.19(1b)(b) (b) “Bank” means either of the following:

30.19(1b)(b)1. 1. Land area that is, in size, the greater of the following:

30.19(1b)(b)1.a. a. The portion of land surface that extends 75 feet landward from the ordinary high-water mark of any navigable waterway.

30.19(1b)(b)1.b. b. The portion of land surface extending landward from the ordinary high-water mark of any navigable waterway to the point where the slope is less than 12 percent.

30.19(1b)(b)2. 2. A bank as determined by the department by rule under sub. (1d).

30.19(1b)(c) (c) “Priority navigable waterway” means any of the following:

30.19(1b)(c)1. 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.

30.19(1b)(c)2. 2. A navigable waterway, or a portion of a navigable waterway, identified as a trout stream.

30.19(1b)(c)3. 3. A lake that is less than 50 acres in size.

30.19(1b)(c)4. 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.

30.19(1c) (1c) Definition; applicability. The definition of “bank” under sub. (1b) does not apply after the 90th day after the day the rule under sub. (1d) is submitted to legislative council staff under s. 227.15 (1) or the day that the rule promulgated under sub. (1d) goes into effect, whichever is earlier.

30.19(1d) (1d) Rules; banks of navigable waterways.

30.19(1d)(a) (a) The department shall promulgate a rule to determine what constitutes a bank for purposes of this section in accordance with all of the following:

30.19(1d)(a)1. 1. For priority navigable waterways, the department shall promulgate a rule stating that a bank is, in size, the greater of the following:

30.19(1d)(a)1.a. a. The portion of land surface that extends a certain distance landward from the ordinary high-water mark of the navigable waterway, but the distance under the rule may not exceed 300 feet.

30.19(1d)(a)1.b. b. The portion of land surface that extends landward from the ordinary high-water mark of the navigable waterway to the point where the slope is measured to be a certain percentage, but the percentage under the rule may not be less than 10 percent.

30.19(1d)(a)1m. 1m. The rule promulgated under subd. 1. may apply to specific priority navigable waterways or to classes of priority navigable waterways.

30.19(1d)(a)2. 2. For navigable waterways that are not priority navigable waterways, the department shall promulgate a rule stating that a bank is, in size, the greater of the following:

30.19(1d)(a)2.a. a. The portion of the land surface that extends a certain distance landward from the ordinary high-water mark of the navigable waterway, but the distance under the rule may not exceed 75 feet.

30.19(1d)(a)2.b. b. The portion of land surface that extends landward from the ordinary high-water mark of the navigable waterway to the point where the slope is measured to be a certain percentage, but the percentage under the rule may not be less than 12 percent.

30.19(1d)(a)2m. 2m. The rule promulgated under subd. 2. may apply to specific navigable waterways or to classes of navigable waterways.

30.19(1d)(am) (am) The rule under this subsection may not require or allow the department to deviate from, or create an exemption from, the requirements of the rules promulgated under this section in determining what constitutes a bank at an individual, specific site.

30.19(1d)(b) (b) In promulgating the rule under this subsection, the determination under this subsection of what constitutes a bank may not include any land where the slope or drainage of the land into the navigable waterway is completely interrupted.

30.19(1d)(c) (c) To the extent practicable, the rule under this subsection shall be consistent with rules promulgated by the department that relate to shorelands, as defined in s. 59.692 (1) (b), and floodplains, and rules promulgated under s. 281.16 (2) that relate to protective areas for wetlands and waterways.

30.19(1d)(d) (d) In promulgating the rule under this subsection, the department shall consider public rights and interests for the purpose of furthering the public trust in navigable waters.

30.19(1g) (1g) Permits required. Unless an individual or a general permit has been issued under this section or authorization has been granted by the legislature, no person may do any of the following:

30.19(1g)(a) (a) Construct, dredge, or enlarge any artificial water body that connects with an existing navigable waterway.

30.19(1g)(am) (am) Construct or enlarge any part of an artificial water body that is or will be located within 500 feet of the ordinary high-water mark of, but that does not or will not connect with, an existing navigable waterway. An artificial water body that meets the requirements of this paragraph includes a stormwater management pond that does not discharge into a navigable waterway except as a result of storm events.

30.19(1g)(c) (c) Grade or remove topsoil from the bank of any navigable waterway where the area exposed by the grading or removal will exceed 10,000 square feet.

30.19(1m) (1m) Exemptions. A person is exempt from the permit requirements under this section for any of the following:

30.19(1m)(a) (a) The construction or repair of any public highway.

30.19(1m)(b) (b) Any agricultural use of land.

30.19(1m)(bm) (bm) The maintenance or repair of an artificial water body or fish farm that is registered with the department of agriculture, trade and consumer protection, except that this exemption does not apply to the requirement under sub. (1g) (c).

30.19(1m)(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.

30.19(1m)(cm) (cm) Any activity that affects a portion of Lake Michigan or of Lake Superior that is located within a county having a population of 750,000 or more.

30.19(1m)(d) (d) Any activity that affects a portion of a navigable stream that is located within a county having a population of 750,000 or more.

30.19(1m)(dm) (dm) The dredging of any part of an artificial water body that does not connect with a navigable waterway. An artificial water body that meets the requirements of this paragraph includes a stormwater management pond that does not discharge into a navigable waterway except as a result of storm events.

30.19(1m)(e) (e) Any work required to maintain the original dimensions of an enlargement of an artificial water body done pursuant to a permit or legislative authorization under sub. (1g) (a) or (am).

30.19(1m)(f) (f) Any land grading activity authorized under a stormwater discharge permit issued under s. 283.33.

30.19(1m)(g) (g) Any land grading activity authorized by a permit issued by a county under a shoreland zoning ordinance enacted under s. 59.692.

30.19(1m)(h) (h) Any activity that affects a portion of a navigable stream and that is related to the construction, access, or operation of a new manufacturing facility within an electronics and information technology manufacturing zone designated under s. 238.396 (1m).

30.19(3r) (3r) General permits. The department shall issue statewide general permits under s. 30.206 that authorize persons to do all of the following:

30.19(3r)(a) (a) Engage in an activity specified in sub. (1g) (am) substantially in accordance with best management practices required for storm water discharge permits under ch. 283.

30.19(3r)(b) (b) Engage in an activity specified in sub. (1g) (c).

30.19(4) (4) Individual Permits.

30.19(4)(a) (a) For activities that are not exempt under sub. (1m) and that are not subject to a general permit under sub. (3r), a person may apply to the department for an individual permit in order to engage in an activity for which a permit is required under sub. (1g).

30.19(4)(b) (b) The notice and hearing provisions of s. 30.208 (3) to (5) apply to an application under par. (a).

30.19(4)(c) (c) The department shall issue an individual permit pursuant to an application under par. (a) if the department finds that all of the following requirements are met:

30.19(4)(c)1. 1. The activity will not be detrimental to the public interest.

30.19(4)(c)2. 2. The activity will not cause environmental pollution, as defined in s. 299.01 (4).

30.19(4)(c)3. 3. Any enlargement connected to a navigable waterway complies with all of the laws relating to platting of land and sanitation.

30.19(4)(c)4. 4. No material injury will result to the riparian rights of any riparian owners of real property that abuts any water body that is affected by the activity.

30.19(4)(d) (d)

30.19(4)(d)1. 1. In this paragraph, “covered municipality” has the meaning given in s. 281.16 (1) (br).

30.19(4)(d)2. 2. If the applicant is a covered municipality seeking an individual permit for the construction of a stormwater management pond in an artificial water body, whether navigable or nonnavigable, for the purpose of achieving compliance with performance standards specified in a permit under s. 283.33 (1) (b), (c), (cg), or (cr) or with an approved total maximum daily load under 33 USC 1313 (d) (1) (C), the department shall, in making its determinations under par. (c), take into consideration the sediment control in and water quality improvements to the watershed as a whole that result from the stormwater management pond.

30.19(5) (5) Requirement for public access. A permit issued under this section to construct an artificial water body and to connect it to a navigable waterway shall require that the navigable portion of the artificial water body be a public waterway if the connecting portion is navigable. The department may impose such further conditions in the permit on public access as it finds reasonably necessary to protect public health, safety, welfare, rights and interest and to protect private rights and property.

30.19 History History: 1971 c. 273; 1979 c. 34 s. 2102 (39) (g); 1979 c. 221; 1983 a. 36; 1987 a. 374; 1995 a. 227; 2003 a. 118; 2011 a. 167; 2013 a. 1; 2015 a. 387; 2017 a. 21, 58, 365.

30.19 Cross-reference Cross-reference: See also chs. NR 300, 340, 341, 343, and 353, Wis. adm. code.

30.19 Annotation The department of natural resources has subject matter jurisdiction to issue after-the-fact permits, as well as those issued prior to the commencement of construction. Capoun Revocable Trust v. Ansari, 2000 WI App 83, 234 Wis. 2d 335, 610 N.W.2d 129, 99-1146.

30.19 Annotation The only specific exemption from the jurisdiction of the department of natural resources over navigable waters is that of s. 30.19 (1) (d) [now s. 30.19 (1m)], concerning agricultural uses of land. The department determines dam regulations for dams on drainage ditches, regardless of the purpose of the dam. 63 Atty. Gen. 355.

30.19 Annotation When a bulkhead line has been established, a riparian owner must nonetheless obtain a permit or contract pursuant to s. 30.20 prior to removing material from the bed of a navigable water landward of the bulkhead line, but within the original ordinary high water mark. 63 Atty. Gen. 445.

30.19 Note NOTE: The above annotated materials cite to the pre- 2003 Wisconsin Act 118 version of s. 30.19.

30.195 30.195 Changing of stream courses.

30.195(1) (1) Permit required. Unless a permit has been issued under this section or authorization has been granted by the legislature, no person may change the course of or straighten a navigable stream.

30.195(2) (2) Individual permits.

30.195(2)(a) (a) A riparian owner shall apply to the department for an individual permit in order to engage in activities for which a permit is required under sub. (1).

30.195(2)(b) (b) The notice and hearing provisions of s. 30.208 (3) to (5) apply to an application under par. (a).

30.195(2)(c) (c) The department shall issue an individual permit applied for under this section to a riparian owner if the department determines that all of the following requirements are met:

30.195(2)(c)1. 1. The applicant is the owner of any land upon which the change in course or straightening of the navigable stream will occur.

30.195(2)(c)2. 2. The proposed change of course or straightening of the navigable stream will improve the economic or aesthetic value of the applicant’s land.

30.195(2)(c)3. 3. The proposed change of course or straightening of the navigable stream will not adversely affect the flood flow capacity of the stream or otherwise be detrimental to the public interest.

30.195(2)(c)4. 4. The proposed change of course or straightening of the navigable stream will not be detrimental to the rights of other riparian owners located on the stream or all of these riparian owners have consented to the issuance of the permit.

30.195(4) (4) Liability for negligence. No common law liability, and no statutory liability which may be provided elsewhere in these statutes, for damages resulting from the changing of the course of or from the straightening of a stream is in any manner affected by this section, nor does this section create any liability on the part of the state for any such damages, but a person who changes the course of a stream or straightens a stream in accordance with a permit granted pursuant to this section is presumed to have exercised due care in such changing or straightening.

30.195(7) (7) Application of section. This section does not apply to any of the following:

30.195(7)(a) (a) Municipal or county-owned lands in counties having a population of 750,000 or more.

30.195(7)(b) (b) Activity related to the construction, access, or operation of a new manufacturing facility located in an electronics and information technology manufacturing zone designated under s. 238.396 (1m).

30.195 History History: 1987 a. 374; 2003 a. 118; 2013 a. 1; 2017 a. 58.

30.195 Cross-reference Cross-reference: See also chs. NR 300, 340, and 353, Wis. adm. code.

30.195 Annotation The elements of proof required for a conviction under sub. (1) are discussed. 67 Atty. Gen. 265.

30.196 30.196 Enclosure of navigable waters; issuance of permits to municipalities. A municipality may enclose navigable waters by directing, placing or restricting navigable waters into an enclosed drain, conduit, storm sewer or similar structure if the department grants the municipality an individual permit. The department may grant this permit to a municipality after following the notice and hearing requirements under s. 30.208 (3) to (5) if it finds that granting the permit:

30.196(1) (1) Is in the public interest;