Section 30.12. Structures and deposits in navigable waters.

 

(1)   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:

(a) Deposit any material or place any structure upon the bed of any navigable water where no bulkhead line has been established.

(b) Deposit any material or place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line.

(1g)   Exemptions. A riparian owner is exempt from the permit requirements under this section for the placement of a structure or the deposit of material if the structure or material is located in an area other than an area of special natural resource interest, does not interfere with the riparian rights of other riparian owners, and is any of the following:

(a) A deposit of sand, gravel, or stone that totals less than 2 cubic yards and that is associated with any activity or project that is exempt from an individual permit or a general permit under this subchapter.

(b) A structure, other than a pier or a wharf, that is placed on a seasonal basis in accordance with rules promulgated by the department.

(c) A fish crib, spawning reef, wing deflector, or similar device that is placed on the bed of navigable waters for the purpose of improving fish habitat.

(d) A bird nesting platform, wood duck house, or similar structure that is placed on the bed of a navigable water for the purpose of improving wildlife habitat.

(e) A boat shelter, boat hoist, or boat lift that is placed on a seasonal basis adjacent to the riparian owner's pier or wharf or to the shoreline on the riparian owner's property, in accordance with rules promulgated by the department.

(f)

1. A pier or wharf to which all of the following apply:

a. It is no more than 6 feet wide.

b. It extends no further than to a point where the water is 3 feet at its maximum depth as measured at summer low levels, or to the point where there is adequate depth for mooring a boat or using a boat hoist or boat lift, whichever is farther from the shoreline.

c. It has no more than 2 boat slips for the first 50 feet of the riparian owner's shoreline footage and no more than one additional boat slip for each additional 50 feet of the riparian owner's shoreline footage.

2. Notwithstanding the width limitation in subd. 1. , a pier may have an area as a loading platform that is more than 6 feet wide if the surface area of the platform does not exceed 200 square feet.

(g) An intake structure and pipe that is placed on the bed of a navigable water for the purpose of constructing a dry fire hydrant to supply water for fire protection.

(h) A piling that is driven into the bed of a navigable water adjacent to the owner's property for the purpose of deflecting ice, protecting an existing or proposed structure, or providing a pivot point for turning watercraft.

(i) Riprap in an amount not to exceed 100 linear feet that is placed to replace existing riprap located in an inland lake or Great Lakes water body and that includes the replacement of filter fabric or base substrate.

(j) Riprap in an amount not to exceed 300 linear feet that is placed to repair existing riprap located in an inland lake or Great Lakes water body, and that consists only of the placement of additional rock or the redistribution of existing rock within the footprint of the existing riprap.

(k) A biological shore erosion control structure, as defined by rule by the department.

(km) An intake or outfall structure that is less than 6 feet from the water side of the ordinary high-water mark and that is less than 25 percent of the width of the channel in which it is placed.

(1h)   Personal watercraft secured to piers allowed. A riparian owner may secure to a pier or wharf up to 2 personal watercraft for the first 50 feet of the riparian owner's shoreline footage and one additional personal watercraft for each additional 50 feet of the riparian owner's shoreline footage without affecting the riparian owner's eligibility for an exemption under sub. (1g) (f) . For the purpose of this subsection, “personal watercraft" has the meaning given in s. 30.50 (9d) .

(1j)   Boat slips for certain piers and wharves.

(a) Subject to pars. (b) and (c) , the riparian owner or owners of a property that is adjacent to a lake of 50 acres or more and on which there are 3 or more dwelling units or on which there are commercial structures may, in lieu of placing a pier or wharf described under sub. (1g) (f) , place a pier or wharf that has either of the following number of boat slips, whichever is smaller:

1. Four boat slips for the first 50 feet of the property's shoreline footage and no more than 2 boat slips for each additional 50 feet of the property's shoreline footage.

2. One boat slip for each dwelling unit, plus an additional number of boat slips if the additional slips are open to the public and the use of the additional slips is limited to the transient docking of boats for less than 24 hours.

(b) If the riparian owner or owners of a property described in par. (a) are eligible to place a pier or wharf with the number of boat slips specified in par. (a) , the pier or wharf must be located in an area other than an area of special natural resource interest, may not interfere with the riparian rights of other riparian owners, and must meet all of the requirements for the placement of the pier or wharf specified under sub. (1g) (f) except for the limitation on the number of boat slips allowed under sub. (1g) (f) .

(c) If the riparian owner or owners of a property described in par. (a) are eligible and propose to place a pier or wharf with the number of boat slips specified in par. (a) , the riparian owner or owners shall apply to the department for an individual permit under s. 30.208 authorizing the configuration of the pier or wharf unless the configuration is authorized by the department under a general permit under s. 30.206 . The department may not deny the permit on the basis of the number of slips proposed by the riparian owner or owners if the number of slips proposed does not exceed the number allowed under par. (a) . A riparian owner or owners who apply for a permit under this paragraph shall be presumed to be entitled to the number of slips allowed under par. (a) .

(1k)   Exemption for certain structures.

(a) In this subsection, “structure" means a pier, wharf, boat shelter, boat hoist, or boat lift.

(b) In addition to the exemptions under sub. (1g) , a riparian owner of a pier or wharf that was placed on the bed of a navigable water before April 17, 2012, is exempt from the permit requirements under this section unless any of the following applies:

1m. The department notified the riparian owner before August 1, 2012, that the pier or wharf is detrimental to the public interest.

2. The pier or wharf interferes with the riparian rights of other riparian owners.

(cm) The department may not take any enforcement action under this chapter against a riparian owner for the placement of any of the following:

1. A structure for which the department has issued a permit under this section, if the structure is in compliance with that permit.

2. A structure for which the department has issued a written authorization, if the structure is in compliance with that written authorization.

3. A structure that is exempt under par. (b) .

(e) A riparian owner who is exempt under par. (b) from the permit requirements under this section or who is exempt under par. (cm) from enforcement action under this chapter may do all of the following:

1. Repair and maintain the exempt structure without obtaining a permit from the department under this section unless the owner enlarges the structure.

2. If the exempt structure is a pier or wharf, relocate or reconfigure the pier or wharf if the riparian owner does not enlarge the pier or wharf.

(f) If the department determines that the owner of a structure is not entitled to an exemption under this subsection, the owner may bring an action for declaratory judgment under s. 806.04 in the circuit court for the county in which the riparian property is located. The owner is not entitled to a contested case hearing or judicial review under ch. 227 .

(1m)   Duck Creek Drainage District structures and deposits. A structure or deposit that the drainage board for the Duck Creek Drainage District places in a drain that the board operates in the Duck Creek Drainage District is exempt from the permit requirements under this section if either of the following applies:

(a) The department of agriculture, trade and consumer protection, after consulting with the department of natural resources, specifically approves the structure or deposit.

(b) The structure or deposit is required, under rules promulgated by the department of agriculture, trade and consumer protection, in order to conform the drain to specifications approved by the department of agriculture, trade and consumer protection after consulting with the department of natural resources.

(1n)   Floating toilet facilities.

(a) In this subsection, “national park service" means the national park service, federal department of the interior.

(b) The placement of a pier that meets all of the following requirements is exempt from the permit requirements under this section:

1. The pier contains a floating toilet facility that meets technical specifications approved by the national park service for floating toilet facilities.

2. The pier is owned and placed by the national park service along a federally owned shoreline in a federally administered area of the St. Croix National Scenic Riverway.

(1p)   Rules.

(a) The department may promulgate rules concerning the exempt activities under sub. (1g) and concerning piers and wharves under sub. (1j) that only do any of the following:

1. Establish reasonable installation practices for the placement of structures or the deposit of material to minimize environmental impacts.

2. Establish reasonable construction and design requirements for the placement of structures under sub. (1g) (c) , (d) , (f) , (g) , (h) , and (km) that are consistent with the purpose of the activity and for piers and wharves under sub. (1j) .

3. Establish reasonable limitations on the location of the placement of structures or the deposit of material at the site affected by the activity.

(b) Notwithstanding par. (a) , the rules under par. (a) 1. and 2. may not establish practices or requirements that prohibit the placement of structures or the deposit of material or that render the placement of structures or the deposit of material economically cost-prohibitive.

(2m)   Permits 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 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:

(a) Significant adverse impacts to the public rights and interests.

(b) Environmental pollution, as defined in s. 299.01 (4) .

(c) Material injury to the riparian rights of any riparian owner.

(2r)   Exemption determinations.

(a) 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.

(b) The department shall do all of the following within 15 days after receipt of a statement under par. (a) :

1. 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.

2. Make a determination as to whether the activity is exempt.

3. Notify in writing the person submitting the statement which general or individual permit will be required for the activity, if the department determines that the activity is not exempt.

(c) 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 or seek authorization under a general permit unless required to do so by a court or hearing examiner.

(d) 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.

(3)   General permits.

(a) The department shall issue statewide general permits under s. 30.206 that authorize riparian owners to do all of the following:

1. Place a layer of sand or similar material on the bed of a lake adjacent to the owner's property for the purpose of improving recreational use.

3c. Place riprap in order to replace or repair existing riprap, other than riprap that is exempt under sub. (1g) (i) or (j) .

3g. Place riprap on the bed or bank of a navigable water adjacent to an owner's property in an amount up to and including 100 continuous feet in an inland lake of 300 acres or more.

3r. Place riprap on the bed or bank of a navigable water adjacent to an owner's property in an amount up to and including 300 continuous feet in a Great Lakes water body.

4. Place crushed rock or gravel, reinforced concrete planks, adequately secured treated timbers, cast in place concrete or similar material on the bed of a navigable stream for the purpose of developing a ford if an equal amount of material is removed from the stream bed.

5. Place crushed rock or gravel, reinforced concrete planks, cast in place concrete or similar material on the bed of navigable waters adjacent to the owner's property for the purpose of building a boat landing.

6. Place a permanent boat shelter adjacent to the owner's property for the purpose of storing or protecting watercraft and associated materials.

13. Place a seawall to replace an existing seawall for which a permit has been issued or an exemption granted under this chapter, or for which no permit was required at the time the seawall was built. The replacement may not exceed 100 continuous feet in an inland lake of 300 or more acres and may not exceed 300 continuous feet in a Great Lakes water body. In issuing the permit, the department may impose conditions on the replacement of a seawall located in an area of special natural resource interest only if those conditions do not prohibit the replacement of a seawall located in an area of special natural resource interest.

14. Place a pier or wharf on the bed of a navigable water that is in, or that would directly affect, an area of special natural resource interest and that is adjacent to the owner's property if the pier or wharf does not interfere with the riparian rights of other riparian owners and it meets the requirements of sub. (1g) (f) .

(b)

1. The department shall issue a statewide general permit under s. 30.206 that authorizes a person to place a net pen in a Great Lakes water body or a tributary of a Great Lakes water body if all of the following apply:

a. The net pen is placed for the purpose of holding or rearing fish for noncommercial purposes.

b. The fish held or reared in the net pen are stocked by the department or by a person who is in compliance with s. 29.736 .

c. The fish held or reared in the net pen are released by the department or by a person who is in compliance with s. 29.736 into the same body of water in which the net pen is placed.

2. A general permit issued for the purpose described in this section shall authorize a person to place a net pen in a Great Lakes water body or a tributary of a Great Lakes water body for a period not to exceed 8 weeks. The general permit may not limit the number of times that a person may place a net pen in a Great Lakes water body or a tributary of a Great Lakes water body under the authority of that general permit.

(c) The department may impose conditions on general permits issued under par. (a) 6. to govern the architectural features of boat shelters and the number of boat shelters that may be constructed adjacent to a parcel of land. The conditions may not govern the aesthetic features or color of boat shelters or the distance at which a boat shelter may extend from the shore, except to prohibit a boat shelter from extending beyond the line of navigation, and may not be based on the degree to which adjacent land is developed. The conditions shall be designed to ensure the structural soundness and durability of boat shelters. A municipality may enact ordinances that are consistent with this paragraph and with any conditions imposed on general permits issued to regulate the architectural features of boat shelters that are under the jurisdiction of the municipality.

(d) The department may impose conditions relating to the location, design, construction, and installation of a pier or wharf placed under the authority of a general permit issued under par. (a) 14. , but may not prohibit a riparian owner from placing a pier or wharf that meets the requirement of the general permit.

(3m)   Individual permits.

(a) For a structure or deposit that is not exempt under sub. (1g) and that is not subject to a general permit under sub. (3) , and for a structure or deposit for which the department requires an individual permit under sub. (2m) or s. 30.206 (3r) , a riparian owner may apply to the department for the individual permit that is required under sub. (1) in order to place the structure for the owner's use or to deposit the material.

(am)

1. Except as provided under subd. 2. , the department may not refuse to allow a riparian owner to apply for an individual permit for the placement of a pier or wharf, including a solid pier, that exceeds the number of boat slips authorized under sub. (1g) (f) or (1j) . The department shall evaluate permit applications under this paragraph on an individual basis and shall grant such applications if the department finds that the pier or wharf meets the requirements under par. (c) 1. to 3.

2. The department may deny an individual permit to the riparian owner or owners of a property that is adjacent to a lake of 50 acres or more and on which there are 3 or more dwelling units if the riparian owner or owners apply for an individual permit for the placement of a pier or wharf with a number of boat slips that exceeds the number of boat slips specified in sub. (1j) (a) 2.

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

(c) The department shall issue an individual permit to a riparian owner for a structure or a deposit pursuant to an application under par. (a) if the department finds that all of the following requirements are met:

1. The structure or deposit will not materially obstruct navigation.

2. The structure or deposit will not be detrimental to the public interest.

3. The structure or deposit will not materially reduce the flood flow capacity of a stream.

(cm) In determining whether to issue an individual permit to the owner of a proposed pier or wharf, the department may not deny the permit 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.

(cr) In determining whether to issue an individual permit to the owner of a proposed permanent boat shelter, the department may not deny the permit on the basis of any of the following:

1. The distance at which the shelter will extend from the shore, except that the department may deny the permit on the basis that the boat shelter will extend beyond the line of navigation.

2. The degree to which adjacent land is developed.

(d)

1. In this paragraph, “ solid pier" means a pier that does not allow for the free flow of water beneath the pier.

2. The department may promulgate rules that limit the issuance of individual permits for solid piers to outlying waters, harbors connected to outlying waters, the Fox River from the dam at De Pere to Lake Winnebago, Lake Winnebago, and the Mississippi River. The rules may establish reasonable conditions to implement the criteria under par. (c) 1. to 3. The rules may not prohibit the issuance of individual permits for solid piers used for private or commercial purposes.

(5)   Penalty. Any person violating this section or any term or condition of a permit issued pursuant thereto shall be fined not more than $1,000 or imprisoned not more than 6 months or both.

1975 c. 250 , 421 ; 1977 c. 130 , 447 ; 1981 c. 226 , 330 ; 1981 c. 390 s. 252 ; 1987 a. 374 ; 1989 a. 31 ; 1993 a. 132 , 151 , 236 , 491 ; 1995 a. 27 , 201 , 227 ; 1997 a. 35 , 248 ; 1999 a. 9 ; 2001 a. 16 ; 2003 a. 118 , 321 , 326 , 327 ; 2007 a. 204 ; 2011 a. 25 , 153 , 167 ; 2013 a. 1 , 75 ; 2015 a. 387 . Cross-reference: See also chs. NR 305 , 320 , 323 , 326 , 328 , 329 , and 353 , Wis. adm. code. In a state proceeding to enforce a department of natural resources order requiring an owner of land abutting a navigable lake to remove a quantity of fill, the burden of proof is on the state to establish the nonexistence of a bulkhead line. State v. McFarren, 62 Wis. 2d 492 , 215 N.W.2d 459 (1974). Sub. (1) (a) does not apply to conduct that only indirectly and unintentionally results in deposits on lake beds. State v. Deetz, 66 Wis. 2d 1 , 224 N.W.2d 407 (1974). When a department of natural resources decision prohibited a structure under this section and the riparian owner did not seek review under s. 227.20 [now 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 (1977). “Navigable waters" under this section are waters that are navigable in fact. A ski jump was a “structure" under this section. The public trust doctrine is discussed. State v. Bleck, 114 Wis. 2d 454 , 338 N.W.2d 492 (1983). Section 66.24 (5) (c) [now 200.11 (5) (c)] does not exempt sewerage districts from the requirements of s. 30.12. Cassidy v. Department of Natural Resources, 132 Wis. 2d 153 , 390 N.W.2d 81 (Ct. App. 1986). An area need not be navigable to be a lakebed. The ordinary high water mark is determinative. State v. Trudeau, 139 Wis. 2d 91 , 408 N.W.2d 337 (1987). The holder of an easement does not qualify as a riparian owner. De Nava v. Department of Natural Resources, 140 Wis. 2d 213 , 409 N.W.2d 151 (Ct. App. 1987). 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 702 (Ct. App. 1996), 95-3526 . Review of local ordinances may be made in making a determination under sub. (2), but is not required. Issuance of a permit conditioned on compliance with a local ordinance was reasonable. Borsellino v. Department of Natural Resources, 2000 WI App 27 , 232 Wis. 2d 430 , 606 N.W.2d 255 , 99-1220 . Although in granting pier permits under s. 30.12 the department of natural resources acts in furtherance of the public trust, a cause of action cannot be based only on a general allegation of a violation of the public trust doctrine. Borsellino v. Department of Natural Resources, 2000 WI App 27 , 232 Wis. 2d 430 , 606 N.W.2d 255 , 99-1220 .

Note

The above annotated materials cite to the pre- 2003 Wisconsin Act 118 version of s. 30.12. Microsoft Windows NT 6.1.7601 Service Pack 1 New Law Eases Requirements: Navigable Waterway Permits. Wheeler. Wis. Law. Aug. 2012. Microsoft Windows NT 6.1.7601 Service Pack 1