Section 30.18. Withdrawal of water from lakes and streams.

 

(2)   Permit required.

(a) Streams. No person may withdraw water from a stream in this state without an individual permit under this section if the withdrawal meets either of the following conditions:

1. The withdrawal is for the purpose of maintaining or restoring the normal level of a navigable lake or the normal flow of a navigable stream, regardless of whether the navigable lake or navigable stream is located within the watershed of the stream from which the water is withdrawn.

2. The withdrawal is for the purpose of agriculture or irrigation.

(b) Streams or lakes. No person, except a person required to obtain an approval under s. 281.41 , may withdraw water from any lake or stream in this state without an individual permit under this section if the withdrawal will result in a water loss averaging 2,000,000 gallons per day in any 30-day period above the person's authorized base level of water loss.

(3)   Application for permit.

(a) Application; streams.

1. Except as provided in par. (b) , an applicant for a permit required under sub. (2) (a) shall file the application with the department setting forth the name and post-office address of the applicant, the name of the stream from which the water will be withdrawn, the point in the stream from which it is proposed to withdraw the water, the name of the lake or stream or the location and riparian status of the land to which the water is to be transferred, the location and description of the canal, tunnel or pipes and other works through which the water is to be withdrawn and transferred, the amount of water to be withdrawn, the periods of time when it is proposed to withdraw such water, the time required for the completion of the canal and other structures necessary for the completed project and, if required by the department, 4 copies of plans showing cross sections and profiles for any canal, tunnel, pipes or other works for withdrawing and transferring the water and any dam and control works at the point of withdrawal and at the point of discharge.

2. For a withdrawal under sub. (2) (a) 1. , a map or maps shall accompany the application with a scale of not less than one inch per 2,000 feet, showing the land topography and the probable course of the proposed canal and other works, and the ownership of all lands upon which will be located the canal, tunnel, pipes and all other works for the completed project.

3. For a withdrawal under sub. (2) (a) 2. , the application shall include written statements of consent to the withdrawal from all riparian owners who are making beneficial use of the water proposed to be withdrawn.

4. The department may require such additional information as may be pertinent.

(b) Application; streams or lakes. An application for a permit required under sub. (2) (b) shall be submitted in the form required under s. 281.35 (5) (a) . If the withdrawal also meets either condition specified under sub. (2) (a) , the application shall also comply with par. (a) .

(4)   Notice of hearing on application.

(a) The notice and hearing provisions of s. 30.208 (3) to (5) shall apply to an application under sub. (3) . In addition to providing notice as required under s. 30.208 (3) to (5) , the department shall mail a copy of the notice to every person upon whose land any part of the canal or any other structure will be located, to the clerk of the next town downstream, to the clerk of any village or city in which the lake or stream is located and which is adjacent to any municipality in which the withdrawal will take place and to each person specified in s. 281.35 (5) (b) or (6) (f) , if applicable.

(b) If a hearing on the application for a permit is conducted as a part of a hearing under s. 293.43 , the notice and hearing provisions in that section supersede the notice and hearing provisions of par. (a) .

(5)   Approval of application.

(a) Streams. The department shall approve an application for a permit required under sub. (2) (a) if the department determines both of the following:

1. That the proposed withdrawal will not injure any public rights in navigable waters.

2. That the water to be withdrawn is surplus water, or if it is not surplus water, that all riparians who may be adversely affected by the withdrawal have consented to the proposed withdrawal.

(b) Streams or lakes. The department shall approve an application for a permit required under sub. (2) (b) if the grounds for approval specified under s. 281.35 (5) (d) are met and, if the permit is also required under sub. (2) (a) , if the department makes the determinations specified under par. (a) .

(6)   Permits; use of water; reporting; review.

(a) Contents of permit. The department shall specify on each permit issued under this section the quantity of water that may be withdrawn and the times during which water may be withdrawn. In addition, if the permit is one which is required under sub. (2) (b) , the permit shall comply with s. 281.35 (6) .

(b) Use of water. A person issued a permit under this section for the purpose of irrigation or agriculture may use the water on any land contiguous to the permittee's riparian land, but may not withdraw more water than it did before August 1, 1957, without applying to the department for a modification of the permit.

(c) Reporting required. The department shall require each permittee under this section to report its volume and rate of withdrawal and its volume and rate of water loss, if any, in the form and at the times specified by the department.

(d) Review of permits. If the permit is one that is required under sub. (2) (a) , but not under sub. (2) (b) , and the permit was issued on or after August 1, 1957, the department shall review the permit at least once every 5 years. If the permit is one that is required under sub. (2) (b) , the department shall review the permit as required under s. 281.35 (6) (b) .

(6m)   Revocation.

(a) The department shall revoke a permit issued under sub. (5) (a) , which is not subject to sub. (2) (b) , if it finds any of the following:

1. That the water being withdrawn is no longer surplus water, except that the department may allow the withdrawal to continue if all riparians adversely affected by the withdrawal continue to consent to it.

2. If the withdrawal is from a stream designated by the department as a trout stream, that the revocation is desirable for conservation purposes.

(b) The department may revoke any permit issued under sub. (5) (a) , which is not subject to sub. (2) (b) , if it finds that the withdrawal is detrimental to the stream from which the water is withdrawn.

(c) The department may revoke a permit issued under sub. (5) (b) only as provided under s. 281.35 (6) .

(7)   Prerequisites to project construction. After an application under this section has been filed with the department, the applicant may enter any land through which it is proposed to withdraw or transfer the water for the purposes of making any surveys required for drafting the plans for the project, but no work shall be commenced on the canal, headworks or other structures necessary for the project until the plans for the same have been approved by the department. Any person having received a permit required under sub. (2) (a) may construct upon the land of another the canal and other works authorized by the permit after the damage which will be sustained by the owner or owners of such land has been satisfied, or has been determined as provided for in ch. 32 , and after the final sum so determined and all costs have been paid to the persons entitled thereto or to the clerk of the circuit court on their account.

(8)   Department may raise water elevations. If after examination and investigation the department determines that it is necessary to raise water elevations in any navigable stream or lake for conservation purposes, the department may, if funds are available from any source other than license fees, determine and establish the elevations to which the water may be raised or maintained, but the water elevation may not be established below the normal elevation. If any lands are damaged by raising the water levels above normal and the department cannot acquire the right to flow the lands by agreement with the owner, the department may acquire the lands or the right to flow the lands by condemnation under ch. 32 .

(9)   Judicial review. Any order or determination made by the department is subject to judicial review as prescribed in ch. 227 .

1979 c. 221 ; 1985 a. 60 ; 1987 a. 374 ; 1995 a. 227 ; 2003 a. 118 ; 2007 a. 227 ; 2011 a. 167 . Cross-reference: See also chs. NR 142 and 305 , Wis. adm. code. 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 . 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). 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). 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).