Section 30.20. Removal of material from beds of navigable waters.

 

(1)   Permits or contracts required.

(a) Unless a contract has been entered into with the department under sub. (2) (a) or (b) 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.

(b) 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) .

(1g)   Exemptions.

(a)

1. 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.

2. 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.

(b) 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:

1. The removal is the amount necessary to place or maintain a structure that is exempt from any permitting requirements in this chapter.

2. The removal is by hand or by hand-held devices without the use or aid of external or auxiliary power.

(c) 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.

(1k)   Rules.

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

1. Establish reasonable procedures for undertaking the removal of material to minimize environmental impacts.

2. Establish reasonable limitations on the location of the removal of material at the site affected by the activity.

(b) 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:

(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.

(1r)   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 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.

(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, seek authorization under a general permit, or apply to enter a contract 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.

(1t)   General permits.

(a) 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.

(am) 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.

(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.

(b) The department may enter into a contract on behalf of the state for the removal and lease or sale of any mineral, ore, or other material from beneath the bed of a navigable water that the state may own if the contract will be consistent with public rights and if the navigable water will not be disturbed in the removal operation. 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 interest of the state. Each contract entered into under this paragraph shall also fix the compensation to be paid to the state for the mineral, ore, or other material to be removed. Each contract entered into under this paragraph may not run for more than 75 years. Should any doubt exist as to whether the state, in fact, owns such lake bed or stream bed such contract or lease shall be for such interests, if any, as the state may own. Title to the royalties to be paid when mining operations are begun shall be determined at such future time as royalties for ores so sold are paid or are due and payable.

(bn) For a removal that is not exempt under sub. (1g) and that is not subject to a general permit under sub. (1t) , a person may apply to the department for an individual permit that is required under sub. (1) (b) in order to remove material from the bed of any lake or stream not described under sub. (1) (a) .

(c) The department shall issue an individual permit pursuant to an application under par. (bn) if the department finds that the issuance of the permit will be consistent with the public interest in the lake or stream.

(d) If an applicant for a permit under par. (bn) submits the application at least 30 days before the proposed date of the removal, the department may issue the permit for a period of up to 10 years. The department may allow one extension of a permit issued under this paragraph, upon application to the department. The extension shall be for the same period of time as the original permit.

(e) The notice and hearing provisions of s. 30.208 (3) to (5) apply to an application for a permit or contract under this subsection.

1977 c. 391 ; 1979 c. 34 s. 2102 (39) (g) ; 1981 c. 330 ; 1983 a. 27 s. 2202 (38) ; 1985 a. 332 s. 251 (1) ; 1987 a. 374 ; 1999 a. 9 , 185 ; 2003 a. 118 ; 2011 a. 167 . Cross-reference: See also chs. NR 305 , 320 , 323 , 345 , 346 , 347 , and 353 , Wis. adm. code. Before proceeding to remove an obstruction under s. 88.90 (3), one must obtain a permit under s. 30.20. State v. Dwyer, 91 Wis. 2d 440 , 283 N.W.2d 448 (Ct. App. 1979). When a bulkhead line has been established, a riparian owner must nonetheless obtain a permit or contract pursuant to 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.

Note

The above annotated materials cite to the pre- 2003 Wisconsin Act 118 version of s. 30.20. Microsoft Windows NT 6.1.7601 Service Pack 1