Section 295.605. Impacts to navigable waters.

 

(1)   Definition. In this section, “navigable water activity" means an activity for which an approval is required under s. 30.12 , 30.123 , 30.19 , 30.195 , or 30.20 .

(1m)   Limitation. This section does not apply to any navigable water activity associated with a mining operation if the application for the approval for the navigable water activity is filed after the department issues a mining permit for the mining operation.

(2)   Approval required. No person may engage in any navigable water activity associated with bulk sampling or mining unless the person has been granted an approval as provided under sub. (4) .

(3)   Application; riparian status.

(a) For purposes of an approval under ss. 30.12 , 30.123 , 30.19 , 30.195 , and 30.20 , a person who is not the owner of a piece of riparian property may exercise a riparian right held by the owner of the piece of riparian property if any of the following apply:

1. The person leases the piece of riparian property from the owner.

2. The person holds an easement on the piece of riparian property and the easement authorizes the person to exercise that riparian right.

(b) If a person is applying for more than one approval for a navigable water activity, the person may file a single application. The application shall include any information requested by the department under s. 295.45 (3) .

(4)   Requirements.

(a) Generally. The department shall grant an approval for a navigable water activity if the navigable water activity meets all of the following requirements:

1. The navigable water activity will not significantly impair public rights and interests in a navigable water.

2. The navigable water activity will not significantly reduce the effective flood flow capacity of a stream.

3. The navigable water activity will not significantly affect the rights of riparian owners or the applicant obtains the consent of the riparian owners.

4. The navigable water activity will not significantly degrade water quality.

(b) Measures. The person applying for the approval shall submit a plan to the department containing proposed measures to meet the requirements under par. (a) and a proposed schedule for implementing the measures. The plan shall include one or more of the following measures:

1. Measures to offset significant impacts to navigable waters by providing public access to, restoring, or enlarging up to 1.5 acres, but not less than one acre, of navigable waters in exchange for each acre of navigable waters that is significantly impacted.

2. Measures to improve public rights or interests in navigable waters.

3. Measures to offset significant impacts to water quality or quantity.

4. Measures to enhance flood storage.

5. A mitigation program as provided under s. 295.60 (8) .

6. Conservation measures as provided in s. 295.61 .

(bg) Measures excluded from consideration. In determining if a navigable water activity meets the requirements under par. (a) with regard to a navigable water, the department may not consider any proposed measure under par. (b) if the navigable water is any of the following:

1. A perennial stream, if the drainage area of the portion of the stream upstream from the farthest downstream point of the navigable water activity is more than 2 square miles. In this subdivision, “perennial stream" means a stream that has a continuous flow every day of every year in which there is average precipitation.

2. A navigable water, other than a stream, that is more than 2 acres in area every day of every year in which there is average precipitation and that is not a freeze-out pond, as defined in s. 29.001 (29) .

3. A class I, class II, or class III trout stream.

(bn) Plan review; finding. In reviewing the plan, the department may require that measures that are in addition to, or in conjunction with, one or more of the measures specified in par. (b) 1. to 6. be included in the plan. After reviewing the plan and application, if the department finds that the requirements under par. (a) will be met by implementing some or all of the measures contained in the plan, the department shall determine which measures shall be required, shall approve a schedule for implementation, and shall grant the approval.

(c) Applicability of requirements. The requirements that are specified in par. (a) 1. to 4. are in lieu of any requirements required for approvals under ss. 30.12 (3m) (c) , 30.123 (8) (c) , 30.19 (4) (c) , 30.195 (2) (c) , and 30.20 , including those that relate to the state's or public's interests, and shall be used, in conjunction with the measures required under par. (b) , in any evaluation by the department pursuant to 33 USC 1341 .

(5)   Approval conditions. The department may impose conditions in an approval for a navigable water activity that it determines to be necessary to ensure that the navigable water activities subject to the approval meet the requirements under sub. (4) (a) .

(6)   Relationship to other laws.

(a) Chapter 30 and any rules promulgated under that chapter apply to any navigable water activity subject to this section to the extent that they do not conflict with this section, except as provided in par. (b) .

(b) Sections 30.209 and 30.2095 and any rules promulgated under those sections, do not apply to any navigable water activity that is subject to this section.

2013 a. 1 .