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)
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:
The activity will not be detrimental to the public interest.
Any enlargement connected to a navigable waterway complies with all of the laws relating to platting of land and sanitation.
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.
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)
, 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.
(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.
See also chs. NR 305
, and 353
, Wis. adm. code.
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
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.
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.
Changing of stream courses. 30.195(1)(1)
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.
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)
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:
The applicant is the owner of any land upon which the change in course or straightening of the navigable stream will occur.
The proposed change of course or straightening of the navigable stream will improve the economic or aesthetic value of the applicant's land.
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.
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.
(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.
(7) Application of section.
This section does not apply to any of the following:
Municipal or county-owned lands in counties having a population of 750,000 or more.
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)
See also chs. NR 305
, and 353
, Wis. adm. code.
The elements of proof required for a conviction under sub. (1) are discussed. 67 Atty. Gen. 265.
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)
if it finds that granting the permit:
Will not violate public rights; and
Will not endanger life, health or property.
Removal of material from beds of navigable waters. 30.20(1)(1)
Permits or contracts required. 30.20(1)(a)
Unless a contract has been entered into with the department under sub. (2) (a)
or authorization has been granted by the legislature, no person may remove any material from the bed of a natural navigable lake or from the bed of any outlying waters.
Unless an individual or a general permit has been issued by the department under this section or authorization has been granted by the legislature, no person may remove any material from the bed of any lake or navigable stream that is not described under par. (a)
A removal of material from the bed of a farm drainage ditch which was not a navigable stream before ditching is exempt from the individual and general permit requirements under this section unless the department finds that the proposed removal may have a long-term adverse effect on cold-water fishery resources or may destroy fish spawning beds or nursery areas.
A person who proposes a removal under subd. 1.
which may have an effect on cold-water fishery resources or may affect fish spawning beds or nursery areas shall notify the department at least 10 days prior to the removal.
A removal of material is exempt from the permit and contract requirements under this section if the material does not contain hazardous substances, the material is not being removed from an area of special natural resource interest, and if any of the following applies:
The removal is the amount necessary to place or maintain a structure that is exempt from any permitting requirements in this chapter.
The removal is by hand or by hand-held devices without the use or aid of external or auxiliary power.
A removal of material by the drainage board for the Duck Creek Drainage District from a drain that the board operates in the Duck Creek Drainage District is exempt from the individual and general permit requirements under this section if the removal is required, under rules promulgated by the department of agriculture, trade and consumer protection, in order to conform the drain to specifications imposed by the department of agriculture, trade and consumer protection after consulting with the department of natural resources.
The removal of material by a drainage district from the bed of a ditch operated by the drainage district is exempt from the individual and general permit requirements under this section if all of the following apply:
The material is removed for the purpose of maintaining the ditch.
The material is not removed from an area that is listed in a database maintained by the department identifying contaminated properties and other activities related to the investigation and cleanup of contaminated soil or groundwater in this state.
If the removed material is spread on land, all of the following apply:
The material is graded and smoothed to blend into cultivated lands.
The surface slope of the material does not exceed a slope of 8 to 1.
The material is not more than 2 feet deep at the top of the bank of the ditch.
If the removed material is placed in a district corridor established under s. 88.74
, no portion of a pile of the removed material is closer than 12 feet from the top of the bank of the ditch, is piled at any angle other than a stable angle of repose for that material, nor has a slope exceeding a slope of 2 to 1.
The drainage district, in maintaining the drainage ditch, does all of the following in order to prevent the spread of invasive species or the spread of viruses from one navigable water to another:
Removes plants, animals, and mud and other debris from all equipment it uses to maintain the drainage ditch before the equipment is placed in any other navigable water.
Washes all equipment that it uses to maintain the drainage ditch with high pressure water of not less than 2,000 pounds per square inch before it is placed in any other navigable water or allows the equipment to dry for not less than 5 days before it is placed in any other navigable water.
Except as provided in this subdivision, the removal activity does not occur between March 15 and the immediately following June 1. A department fish biologist assigned to the area in which the removal activity is located may waive the requirement that the limitation in this subdivision apply to an exemption under this paragraph.
If the drainage ditch is classified by the department as a trout stream or tributary of a trout stream, the drainage district coordinates the time of its removal activities with department fisheries staff.
The department may promulgate rules concerning the exempt activities under sub. (1g)
that only do any of the following:
Establish reasonable procedures for undertaking the removal of material to minimize environmental impacts.
Establish reasonable limitations on the location of the removal of material at the site affected by the activity.
Notwithstanding par. (a)
, the rules under par. (a) 1.
may not establish procedures that prohibit undertaking the removal of material or that render the undertaking of the removal of material economically cost-prohibitive.
(1m) Permits or contracts in lieu of exemptions.
The department may decide to require that a person engaged in an activity that is exempt under sub. (1g)
apply for an individual permit or contract, or seek authorization under a general permit if the department has conducted an investigation and visited the site of the activity and has determined that conditions specific to the site require restrictions on the activity in order to prevent any of the following:
Significant adverse impacts to the public rights and interests.
Material injury to the riparian rights of any riparian owner.
A person may submit to the department a written statement requesting that the department determine whether a proposed activity is exempt under sub. (1g)
. The statement shall contain a description of the proposed activity and site and shall give the department consent to enter and inspect the site.
The department shall do all of the following within 15 days after receipt of a statement under par. (a)
Enter and inspect the site on which the activity is located, subject to s. 30.291
, if the department determines such an inspection is necessary.
Make a determination as to whether the activity is exempt.
Notify in writing the person submitting the statement of which general permit or individual permit will be required, or whether a contract will be required, if the department determines that the activity is not exempt.
If the department does not take action under par. (b)
, the department may not require at any time that the person proposing to engage in the activity apply for an individual permit, seek authorization under a general permit, or apply to enter a contract unless required to do so by a court or hearing examiner.
If a statement under par. (a)
is not given or if the statement does not give consent to inspect, the 15-day time limit under par. (b)
does not apply.
The department shall issue statewide general permits under s. 30.206
that authorize any person to remove material for maintenance purposes from an area from which material has been previously removed.
No person may be authorized to proceed under a general permit issued under par. (a)
unless the person has demonstrated to the department that material has been previously removed from the area for which the person has requested authorization to proceed.
(2) Contracts and individual permits. 30.20(2)(a)(a)
The department may enter into a contract on behalf of the state for the removal and lease or sale of any material from the bed of any navigable lake or of any outlying waters if the contract is consistent with public rights. A person seeking to enter into such a contract shall apply to the department. Each contract entered into under this paragraph shall contain any conditions that the department determines are necessary for the protection of the public interest and the interests of the state. Each contract entered into under this paragraph shall also fix the amount of compensation to be paid to the state for the material to be removed, except that the contract may not require that any compensation be paid for material if the material will not be resold. Each contract entered into under this paragraph may not run for more than 5 years. The department may allow one extension of a contract entered into under this paragraph, upon application to the department. The extension shall be for the same period as the original contract.