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STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES THE ROLE OF THE WISCONSIN DEPARTMENT OF NATURAL RESOURCES IN THE PROTECTION OF THE PUBLIC INTEREST IN NAVIGABLE WATERS COASTAL ZOjN- APRIL, 1978 INFORMATION CENTER ANN PREZYNA, ROBERT L. TAYLOR Financial assistance for the preparation of this report has been provided through the Wisconsin Coastal Management Program by the Coastal Zone Management Act of 1972, administered by the Federal Office of Coastal Zone Management, National Oceanic and Atnospheric Administration. US Department of Commerce NOAA CoactzR ",7,:@A-ccs Ccmtcr Library 2224, souta !:S:@)zon Avenue Charleston, SC 29405-2413 j Table of Contents Page I..Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 11. Federal Statutes and Their Effect on the State's Regulation Of Its Navigable Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Regarding the Process by Which Permits and Authority Are Granted to do Work on the Beds of the Great Lakes . . . . . . . . . . . . . . . . . . . . . . . 4 A. Issuance of water retiulatory permits under Chapter 30 . . . . . . . . . . . 4 B. Section 30.11: establishment of bulkhead lines . . . . . . . . . . . . . . 6 C. Section 30.12: permits for structures and deposits in navigable waters 8 0. Section 30.13: wharves, piers and pierhead lines . . . . . . . . . . . . . 11 E. Section 30.19: enlargement of waterways . . . . . . . . . . . . . . . . . . 13 F. Section 30.20: removal of material from beds of navigable waters . . . . . 13 IV. Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . 14 Figures: 1. Field Districts and Areas . . . . . . . . . . . . . . . .. . . . . . . . 17 2. Permit Procedure Flow Chart . . . . . . . . . . . . . . . . . I. . . . . 18 Appendices: A. Problem Statement: Toward a Definition of the Public Interest . . . 19 B. Selected Subsections from the Wisconsin Statutes . . . . . . . . . . 21 C. Selected Sections from the Policies and Procedures Manual of the Wisconsin Department of Natural Resources . . . . . . . . . . . . . . . 27 D@ Selected Chapters from the Administrative Code for the Wisconsin Department of Natural Resources . . . . . . . . . . . . . . . . . . . 59 E. Case List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 TIN. ACKNOWLEDGEMENTS This report could not have been completed without the assistance of a number of individuals that provided us with the guidance and support that we most always were in need of. The following persons contributed significant amounts of time, energy and expertise toward the completion of this report: Edmund Brick, Chief, Water Regulation Section, Departmen t of Natural Resources Heather Coleinan, Office of Coastal Zone Management, NOAA, Washington, D.C. Kathryn Curtner, Bureau of Legal Services, Department of Natural Resources John Donatell, Water Management Investigator, Northwest District, Department of Natural Resources Ronald Fassbender. Water Management Investigator, Lake Michigan District, Department of Natural Resources Scott Hausman, Water -Management Investigator. Southeast District, Department of Natural Resources James Kurtz, Director, Bureau of Legal Services, Department of Natural Resources George Meyer, Bureau of Legal Services, Department of Natural Resources David Owens, State Planning Office, Department of Administration Louis Posekany, Bureau of Environmental Impact, Department of Natural Resources Peter Peshek, Public Intervenor, Department of Justice A special acknowledgement to Mr. Ted Lauf for having confidence in our ability to perform this task and acting as our "red tape cutter" and chief troubleshooter. Of course, none of what you are reading could be possible without the assistance of our clerical support staff. Ms. Laura Grady's expertise in this area is greatly appreciated. A word about the authors. Ann Prezyna is a member of the District of Columbia Bar and a graduate of the George Washington School of Law. Robert L. Taylor is currently a second year law student at the University of Wisconsin School of Law-Madison. THE ROLE OF THE WISCONSIN OEPARTKENT OF NATURAL RESOURCES IN THE PROTECTION OF THE PUBLIC INTEREST IN NAVIGABLE WATERS. 1. Historical Backqround In order to fully understand the department's role in the protection of the public interest in navigable waters, it is helpful to understand the historic underpinnings of public and-private rights and interests in the state's waters - when and how they originated and evolved both in the legislature and in court. A convenient starting point is Revolutionary War times. After the Revolutionary War the thirteen original states, while still impoverished, were confronted with the spectre of paying off war debts. States without western lands were demanding that states, like Virginia, claiming lands to the west cede-these lands to the Confederation to be sold to pay off their debts. In 1783 the Virginia Legislature authorized cession of the Northwest Territory to the Confederation. The actual deed of conveyance was executed in 1784 and was subject to two conditions. First, new states were to be admitted to the Union with the same sovereign rights as the original states. Second, at Virginia's insistence, navi able yaler-flowing into the the c Y2A . U ig ays. The latter condition was based on the fear that states created from the Northwest Territory might impose toll charges for the use of their waterways. Both conditions were incorporated into the Northwest Ordinance of 1787 which set up the government for the Northwest Territory. Section 1, Article IX of the Wisconsin Constitution, adopted in 1848 and approved by the Act of Congress admitting Wisconsin to the Union, incorporated word-for-word the language of the Northwest Ordinance regarding navigable waters. Essentially, it provides that the state shall have concurrent jurisdiction on all rivers and lakes bordering on the state so far as the rivers or lakes form a common boundary between the state and any other state or territory. In addition, it provides that the Mississippi River, the navigable waters leading into the Mississippi and St. Lawrence Rivers, and the carrying places in between are common highways, forever free to state inhabitants and other U.S. citizens alike, without tax, impost or duty. The Northwest Ordinance merely 'provides that navigable waters are to be public highways. It does not define the term "navigable water". Nor did the federal government offer guidance to the states. Therefore the definition of navigable water became a problem for determination by each state individually. Each state adopted a test to suit its own particular needs and interests. For ixample, states along the Atlantic seaboard rely on the salt water test of navigability. Using this test, streams are considered to be navigable up to the point where the tide ebbs and flows. Thus streams may fail to meet this standard even with a width of more than 100 yards. In Wisconsin the time-honored definition of navigability is "navigable in fact." What determines where a body of water is "navigable In fact", however, has varied with the times. In the nineteenth century, the saw-log definition of navigability which emerged was based on the early economic activity of the area. The vast timberlands of Northern Wisconsin attracted lumbering operations As early as 1809. In order to accommodate the timber barons, therefore, the saw-log rule was established by the state Supreme Court in Olson v. Merrill (1877). In this case the stream in question had sufficient water to permit the runnTng of iogs on17 in certain seasons of the year. Trees had to be cleared out of the waterway and men stationed along the banks in order to keep the logs moving. In holding the stream to be navigable, the court stated that the public interest in the pine-growing regions of the state required such a finding. Since 1911 it has become unnecessary in determining the navigability of a stream to establish a past history of floating logs or other commercial use. Rather, any stream is deemed "navigable in fact" if It is capable of floating a boat, skiff or canoe of the shallowest draft used for recreational purposes (Muench v. Public Service Commission (1952)). Thus, in line with changes in public attitudes, the Wisconsin Supreme Court has breadened the test of navigability to include recreational as well as commercial uses of water. Similarly, the court has stated may times that the state holds title to the beds of navigable waters, including the Great Lakes, in trust for the public uses and purposes of navigation, fishing, and other 4 -rights incident to public wa-ters at common law (see, for example, Angelo Y. Railroad Commission (1927)). This trust was transferred from the federal government to WisconsiF -upon its-a-am-issio-n-t-o-Fe-union by terms of the Northwest Ordinance (Illinois Steel Co. Y. Bilot (1901) at 426). Because the state is the owner in fee of the beds of the Great Lakes, with the exception of the' lake bed grants made to municipalities under Section 24.39(4), Wis. Stats. and various session Taws, these lands are subject to state regulation and control, as well as to whatever requirements Congress imposes with respect to public navigation and commerce (McLennan v. Prentice (1893) at 443). The common law rights of riparians along the banks of the Great Lakes to enjoy a reasonable use of the water may therefore be qualified by statute in addition to being subject to the rights of other riparians and of the public at large. When these rights come into conflict, public rights generally prevail (Beuscher 1970 at sec. 308a). At common law, as rights appurtenant to ownership of the banks, a riparian owner along a navigable water can extend his/her possession beyond, or otherwise intrude within, the natural shore of a navigable water in one of two ways. One way is to construct a wharf or a pier from the front of the riparian's land out into the lake just far enough to achieve access to water sufficiently deep to navigate boats (Yates v. City of Milwaukee (1870)). This right, being held to further public use of the water to w public ownership of the bed is subordinate, is passively licensed by the state. The second way, based on the necessity of self-preservation, is to intrude into the water as far as is necessary to construct works to protect the land when water is naturally wearing away and overtopping the banks, the so-called "common enemy" doctrine @Oiedrich v. Northwest Union Railway @o. (1877) at 262-3). As mentioned above,,these common Taw rights are subject to several limitations. First, even at common law a riparian owner cannot extend a structure out into the water more than is reasonably necessary for navigation,purposes or for the protection of property, as the case may be. Otherwise, the structure is deemed an unlawful obstruction subject to abatement as a public nuisance. (Cohen v. Wausau Boom Co. (1879)). Second, as private rights, riparian rights are subject to the puElic trUs-t in na Tg-a-b)e waters and the beds of navigable waters. In addition to navigation in the original sense of the word, public rights under the trust doctrine have been expanded to encompass recreational uses of the state's waters including but not limited to rowing, canoeing, bathing. sailing, fishing, swimming, hunting, skating, and enjoyment of scenic beauty - sometimes referred to as the "incidents of navigation" Nekoosa-Edwards Paper Co. v. Railroad Commission (1930) at 46 and State v. Public Service Commission ( r9_5 67. Third, riparian rig ts are subject to t e rights of other -ripar'ian-6-wners along the lake Jg1ja Mill Co. v.Shores (1886) at 479). Last, riparian rights may be regulated or prohibited by statute (Kannege-r-g7PT-at 377). The first exercise of authority over navigable waters by-the Wisconsin legislature was not designed to protect the public trust but rather to protect the interest of the big guy Cread lumber baron) against encroachment by the little guy (read general public). That is, the statutes were drafted to literally clear the way for the transport of logs to market by declaring obstructions of navigable waters, as defined by the saw-l.og test (above), to be contrary to public policy and, therefore. subject to abatement as public nuisances (Posekany 1978). But at the marketplace, new groups, mainly the farmers, were gaining in power and making their interests known to the legislature. The farmers, as well as the lumbermen who preceded them to power, we=reemanding legislative accommodation of mills - mills to turn saws and mills to turn grinding stones. So early on the legislature passed the first Mill Dam Act. This act declared waters to be nonnavigable for purposes of furnishing mill power. This exception got everyone excited, so the following legislature rescinded the act. A second Mill Dam Act was passed in 1855. For the purpose of erecting mill dams, it declared a stream to be nonnavigable, but oniy to the extent that a mill could be erected and not so far as to prohibit navigation Cread log passagel, God forbid. This act, too, received the jud-icial axe (Posekany 1978). Fortunately, a trust-minded and public opinion-conscious court showed the legislature the way to the protection of public as well as private rights in navigable waters. Originally the legislature regulated the respective rights of riparian owners and the public. That is, the legislature itself granted franchises and permits (Bond v. Wojahn (1954) at 239-240).. In general, these first statutes were vague, making enforcement anJ-puFaFt-iveaction difficult, if not impossible, to obtain. After numerous court tests and redrafts, however, the legislature delegated its authority to protect navigable waters, as well as tome of its trust responsibilities, to the Railroad Commission In 1910 (Posekany 1978). The Railroad Commission was renamed the Public Service Commission in 1933. Control over navigable waters was at that time delegated to the 'dater Powers Section which consisted of only four people. As an engineering outfit, the Water Powers Section was primarily concerned with the design of structures - their safety features. 7hey also tended to be sympathetic to local economic arguments; that is, the needs of the individual applicant and other members of the private sector carried considerably more weight then than now (Sayles 1978).. 3 With only four staff members, enforcement action was seldom taken at the initiative of the commission itself but rather in response to complaints from outside the organization. Even so, the vast majority of all enforcement actions were directed toward individuals acting without a permit. Once a permit was obtained, however, little follow-up was pursued CSayles 1978). Nor was cooperation with the federal regulatory authorities in this area very apparent. In fact, when the Corps of Engineers and the PSC were not being openly aggressive towards ohe another, they were most likely ignoring each other (Sayles 19781. Events leading up to legislative reorganization and the subsequent transfer of authority from the PSC to the Department of Resource Development in 1965 were a long time in coming. Politically and conceptually, ORD originated during the 1958 gubernatorial campaign, when the economic position of Wisconsin relative to the other states became a major issue. Each candidate offered*a prescription for the economic growth and development of the state. Candidate Gaylord Nelson's proposal - relying heavily for spiritual guidance on the ideas of the eminant legal scholar, Jacob Beuscher - was to create a new state agency solely devoted to solving the varied resource problems of Wisconsin (Lehmann, Wiley and Hall 1977). Water was viewed as the state's most valuable resource from the point of view of its development potential - both in terms of the commercial prospects of the Great Lakes following the opening of the St. Lawrence Seaway and the recreational attractions of Northern Wisconsin. Whereas the PSC could only deal with the state's water resources within a narrow purview - primarily the problems of hydro- electric power - it was thought that a new super-agency could provide a managerial overview and permit badly needed water use planning that had been almost wholly lacking in the state up to this time. When Nelson became governor, his reorganization plans were realized although his predictions about the future development potential of Wisconsin's waterways were only half right (Lehmann, Wiley and Hall 1977). Further centralization and consolidation of functions occurred in 1967, when the Department of Resource Development merged with the Wisconsin Conservation Commission to form the Department of Natural Resources. In contrast to the days of the Water Powers Section, there has been a great increase in the size of the office with a corresponding tendency to diversification, both functionally and geographically (Sayles 1978). Due to the development of standards, the department is also less permissive than was the PSC with respect to the types of projects that it will certify. Specifically, the physical effect (environmental impact) of a project is carefully scrutinized, especially its impact on water quality. In part, this change is due to the fact that the "opposition" (Izaak Walton types) has become increasingly well organized (Sayles 1978). II. Federal statutes and their effect on the state's regulation of its navigable waters The Department of the Army, acting through the Corps of Engineers, is responsible for administer ing Federal laws regulating activities in navigable waters of the U.S., including the Great Lakes. Authority for these regulatory programs is based primarily on Section 10 of the Rivers and Harbors Act of 1899 C-33 U.S.C. 5401) and Section 404 of the Federal C11pan Water Act, as amended (133 U.S.C: �1344). Basically, a Corps permit is required to locate a structure, excavate or discharge dredged or fill material in waters of the United States* Activities requiring permits include, but are not limited to, the following: beach nourishment; construction of boat ramps, breakwaters, bulkheads, groins, jetties, piers and wharves; dredging; filling; mooring buoys; and installing riprap. Until 1968, the Corps administered the 1899 Act regulatory program only to protect navigation and the navigable capacity of the nation's waters. In that year, however, the Department of the Army revised its policy with respect to the review of permit applications under Section 10. It published a list of factors, in addition to navigation, to be considered in reviewing these applications: fish, wildlife, conservation, pollution, aesthetics, ecology and the general public interest. (33 C.F.R. 9209.120). This change in policy identified the new type of review as a "public interest review". It was adopted in response to a growing national concern for environmental values relating to our nation's water resources and in response to related Federal legislation. On April 4, 1974, the Corps of Engineers published final revisions of its permit regulations (33 C.F.R. 9209.120). Among other changes, these revisions adopted additional factors of concern in the public interest review, including: economics, historic values, flood damage prevention, land use classification, recreation, water supply and water quality. Section 404 of the Federal Clean Water Act established a permit program administered for the Secretary of the Army, acting through the Chief of Engineers, to regulate the discharge of dredged or fill material into waters of the United States. Applications for Section 404 permits are evaluated by using guidelines. The Chief of Engineers can decide to issue a permit in apparent violation of these guidelines, however, if the interests of navigation require. In addition, the Administrator of EPA may restrict or prohibit the discharge of any dredged or fill material that may have an unacceptable adverse effect on municipal water supplies, shell fish beds, fishery areas, wildlife or recreation areas. In July 1977, all regulations pertaining to the permit program of the Corps of Engineers were published in a new series of Title 33, C.F.R. 4 - Part 320 describes the general policies used by the Corps in reviewing permit applications, including: the public interest review; policies on wetlands, fish, wildlife, water quality, and historic, scenic or recreational values; interference with adjacent properties or Federal projects; and requirements for other permits or certifications. With respect to the public interest review, three additional factors were added: energy needs, safety and food requirements. With respect to the Corps' policy regarding other permits or certifications required for the same activity, the Corps will process permit applications concurrently with other required applications. If another required permit or certification is denied, they will not issue a permit. The district engineer is authorized to process a permit to conclusion, however, if the other agency fails to take definitive action within three months after issuance of public notice by the Corps. Part 322 describes the specific policies and procedures foliowed by the Corps in evaluating applications for structures or work in or affecting navigable waters of the United States pursuant to Section 10 of the Rivers and Harbors Act of 1899. In addition, some activities will also require permits under Section 404. Four types of authorizations are used In the issuance of Section 10 permits: (1) The nationwide permit process encompasses activities previously grandfathered or exempted from the Section 10 permit requirement and small structures having only a minimal impact an the environment. (2) Letters of permission are issued on an individual basis under abbreviated review procedures if the district engineer thinks that the proposed work is minor and without significant impact an environmental values and no opposition is expected. (3) Individual permits are issued on an ad hoe basis. (4) Lastly, general permits are issued for future minor works or structures in a particular geographic region if the proposed activity is shown to have only a minimal impact, individually or in combination with other related activities, on the environment. Similarly, Part 323 describes the specific policies and procedures to be followed by the Corps in evaluating applications under Section 404. In sum, district engineers have been delegated expanded authority to deny permits, including those deemed not in the public interest. Denial authority previously was limited to navigational conflicts or denial of state or local authorization or certification. Recent amendments to the Clean Water Act include provisions granting states with approved programs authority to issue permits for dredge and fill activities in most waters and wetland areas (PL 9S-217, signed December 2. 1977). State programs must demonstrate themselves capable of accomplishing the same objectives as the Federal permit program if they are to be approved by the EPA administrator. Thus state permit programs must include enforcement authority comparable to the Federal program, adequate resources including staff and funds, and ensure full and complete coordination with all related Federal, state and local programs. III. Regarding the process by which permits and-authority are granted to.do work on the bed of the rreat Lakes A. Issuance of Water Regulatory Permits Under Chapter 30 Prior to April 20, 1977, permits, except for contested cases or cases delegated to the district director, were processed by the central office - that is, by the Bureau of Water Regulation and Zoning. Authority to approve or deny permit applications was first vested in the administrator of the Division of Environmental Protecti0n (5/5/72), later in the administrator of the Division of Enforcement (5/5/75). Since that time, however, there has been a continual shift toward decentralization of the permit procedure, from the central office in Madison out to the three coastal districts - Northwest, Lake Michigan, and Southeast. In general, the district now serves as the clearinghouse while the bureau keeps a lookout for unusual or controversial activities and maintains professional staff with expertise in certain subject areas. The generalTzed procedure for Chapter 30 permits is set out in Manual Code 3506.1 (Appendix C). Under this process the applicant submits a permit request to the district director. In the Northwest and Lake Michigan districts, the district office fields the application out to the appropriate area office for investigation (Figure 2). In the Southeast district, which has no area offices, the field investigation is conducted by the district office. Copies of the application are also sent by the district office to the central office (Bureaus of Water Regulation and Zoning and Environmental Impact) and to the county zoning administrator. Field review is conducted by the area fish manager, the area wildlife manager, the area conservation warden, and the area water management investigator in the Northwest and Lake Michigan districts and by their functional counterparts in the Southeast district office. The field report is primarily environmental (Form 3500-23). It examines impacts on fish, considering the value of the species, its class and abundance; impacts on productivity, especially the effect on nursery and spawning areas; habitat, including bottom type and vegetation; wi-ldlife (considering their value and abundance); the stability of the shoreline; flood plain and shoreland zoning considerations (zoning classification; present land use within 300 feet of the shoreline; conflicts with NR 115 or 116, Wis. Adm. Code; and the existence of other required regulatory authority - village or city, town, county, and federal (Corps of Engineers)); special environmental considerations Laesthetic values, for example); and the overall impact on the environment, considering the ecological diversity of the area and its contribution to the stability of the lake. In addition to these environmental considerations, the water regulation investigation also looks at present public use of the project site (for navigation. hunting, fishing, trapping, swimming, etc.); the presence of areas of historic, scientific, or archeological value; and the impact on adjacent property owners. Copies of the field report are sent to the central office for review. In addition, the central office will be consulted where technical input beyond that available at the district level is required. The area supervisor will return the completed field report to the district office with the area office's recommendations: no objection or objection on the basis of written facts. Manual Code 3551.1 requires the district's evaluation to reflect standards for flood plain management (under Sec. 87.30, Wis. Stats. and NR 116, Wis. Adm. Code), shoreland standards Cunder Sec. 144.26, Wis. Stats. and NR 115, Wis. Adm. Code) and erosion hazards (under Executive Order 67, dated 11/26/73). Once the field report is deemed sufficient, the application is forwarded to the district's environ- mental impact coordinator for assessment pursuant to NR 150, Wis. Adm. Code. The impact coordinator will prepare Form 1600-1, the environmental impact assessment screening worksheet. The EIA considers the existing environment, the purpose of and need for the project, all beneficial and adverse impacts (physical, biological, economic and social), the probability of adverse impacts that cannot be avoided, any irreversible or irretrievable commitments of resources, and the possibility of implementing reasonable.alternatives. On this basis, the impact coordinator will evaluate any perceived secondary effects, new environmental effects, the effects on geographically scarce resources, energy impacts, economic impacts and social impacts. In the course of this evaluation, the following questions will be answered: will the action be precedent setting? Do reasonable alternatives exist? How controversial is the project? Will it be consistent with long-range policies and plans? Are there foreseeable cumulative impacts which are major or significant? What is the impact on historic, scientific or archeological sites? Will future options be foreclosed? On the basis of the field report and the environmental impact assessment worksheet, a final assessment, consisting of both a technical analysis and professional opinion, will be made of the probable envi7nmental impact of the proposed project. If the permit request is not subject to notice and hearing under Sections 30.02 and 31.06, Wis. Stats., the district director wil] proceed to grant or deny the request at this point. Summary action can be taken on applications for bulkhead lines under Section 30.11, Wis. Stats. (although adoption of a municipal ordinance does require notice and hearing); sand blankets, fish cribs and rip-rap under Section 30.12, Wis. Stats.; and dredging under Section 30.20, Wis. Stats. All are processed almost entirely at the district level, although informal interaction with the central office is maintained regarding questions which cannot be locally answered. The reasons for exempting certain types of permit actions from the requirements of notice and hearing is based on the legislative judgment that most projects of these types are of relatively minor public impact and generally are noncontroversial in nature. That is, past experience indicates a lack of public concern for the great majority of these projects. Of course, an additional consideration is expediting the process vis-a-vis the applicant, making it easier both in terms of the expense and the time involved (Meyer 1978). In particular, riprap permits are excluded because the right to protect property against the action of water by building works along the banks is a basic riparian right at common law. Installing riprap is also important to erosion control. Therefore, It was thought desirable to make the process short and simple. Similarly, the desirability of fish cribs for fish management purposes encouraged simplification of the permit review process (Meyer 1978). All other types of permit requests, namely applications for structures under Section 30.12, Wis. Stats. and waterway enlargements under Section 30.19, Wis. Stats., are subject to notice and hearing. In lieu of once-mandatory hearing requirements. however, permits of this type are now subject to the so-called 30-day notification procedure (Chapter 90, Laws of 1973). Section 31.06, Wis. Stats. provides that upon receipt of an application for a permit, the department may order a hearing of its own accord, or it may waive the hearing requirement absent a specific request for one being submitted within 30 days. The district office will send copies of the notice to ONR personnel (the Bureau of Legal Services, the Bureau of Water quality, the Bureau of Environmental Impact, the Bureau of Water Regulation and Zoning and the Office of Coastal Zone Management), the Scientific Areas Preservation Council, the,Oepartment of Health and Social 6 Services, the State Board of Soil and Water Conservation Districts, the attorney general's office, various environmental groups, the applicant, the local zoning administrator, county and municipal clerks, adjacent property owners and the Corps of Engineers. In addition, the central office sends notification to the local newspaper for informational purposes. The applicant is required to publish notice as well in each county in which affected riparian lands are located CLawry 1978). After publication of notice, the district must wait 30 days before continuing the permit review process. If no objections are received, the water management investigator consults with the environmental impact coordinator and submits recommendations to the district director. The district director will then approve or deny the permit. Copies of the district's order are sent- to the Bureaus of Water Regulation and Zoning, Legal Services and Environmental Impact and to the county zoning administrator. If there are written objections to a particular project, the water management investigator will draft a memo to Madison requesting a hearing and transferring the environmental assessment and other files to the Bureaus of Water Regulation and Zoning, and Legal Services. Objections may be initiated from within the department itself or from without. If objections are made, a hearing will be held. At the conclusion of the hearing, the hearing examiner will determine whether a permit will be issued. From that point on, the process is in the hands of the central office Cmanual Code 3505.1). In 1976, there were approximately 63 permit applications submitted to do work on the beds of the Great Lakes. Of this total, 58 were approved, one denied and four pending. The one denial was based on two grounds: that the proposed spoil deposition site was below the ordinary high water mark in violation of Section 30.12, and that the project as a whole would be a futile effort from an engineering standpoint. The 63 permit applications included the following activity types: bulkhead lines under Section 30.11 - none; structures and deposits under Section 30.12(21(a) - 19; sand blankets under Section 30.12(2)(b) - none; fish cribs under Section 30.12(2)(c) - none; riprap under Section 30.12C2)(d) - 19; waterway enlargements under Section 30.19 - two; and dredging under Section 30.20 23. Of these 63 requests, 45 were submitted to the Lake Michigan district office (LMD), 14 to the Northwest District Office (NWO), and four to the Southeast District Office (SED). (Table 11. Table 1: Distribution by type and district of Chapter 30 permit applications submitted in 1976. Activity Type LMO NWO SED Bulkheads 0 0 0 Structures and Deposits 12 6 1 Sand Blankets 0 0 0 Fish Cribs 0 0 0 Riprap 17 1 1 Waterway Enlargement 0 0 2 Dredging 16 7 a 2M TT _T In deciding whether to grant or deny permit applications for physical alterations to navigable waters, the districts look to statutory standards, administrative code provisions, court decisions, internal operating procedures, executive orders and administrative practices. Only the criteria established by statute, administrative code, and the Supreme Court are mandatory considerations. The rest are policy considerations which often provide the criteria for determining what the "public interest" is on a case-by-case basis. B. Section 30.11: Establishment of bulkhead lines A bulkhead line is a legislatively determined "shoreline" defining the boundary between upland and water. This artificial shoreline may differ from ihe existing natural shoreline and from the low and high watermarks. Under Section 30.11, any municipality (defined by Subsection 30.01(l) to mean any village, city, town or county) may establish a bulkhead line along any section of a navigable water within its boundaries by municipal ordinance. The Department of Natural Resources must approve under Subsection 30.11(3) -(see Form 3500-21 7 The purpose of a bulkhead line is to prevent major physical encroachment into a navigable waterway, except where such encroachment would be in the public interest. For example, bulkhead lines may be used to regularize shorelines. They also enable installation of shore protective works, construction of improved dock and recrWional facilities, elimination of debris pockets and beautification of shoreline appearances by allowing placement of structures or fill to accomplish these purposes. That is, it is lawful'to deposit material and place structures upon the bed of a navigable water only within the limitations of a lawfully established bulkhead line. Be that as it may, although a bulkhead ltne has been established, a riparian owner must still obtain a permit or a contract under Section 30.20 before removing material from the bed of a navigable.water landward of a bulkhead line but within the original ordinary high watermark. A riparian does not have to obtain a permit pursuant to Section 30.12C2)(.b)., however, in order to place a sand blanket between the bulkhead line and the ordinary high watermark (1974'0.A.G.' 445). In addition, under Subsection 24.39C41 (created by Chapter 535, Laws of 1961) the state may lease rights to submerged lands. This provision is applicable to Lake Michigan and Superior, the Mississippi and St. Croix rivers, the Fox river from Green Bay upstream to the point where it meets the Wolf river, and to the segments of all other bodies of water In which the U.S. Army Corps of Engineers provides and maintains commercial navigation channels. A lease may be granted to an individual for the purposes of aiding navigation and constructing or improving harbor facilities. A lease may be granted to a municipality for the purpose of constructing or improving recreation facilities related to navigation for public use. Bulkhead line approval must be obtained, however, before filling or placing of structures may be done on leased lands. Oock and pier lines were first regulated under Section 30.02, Stats. 1917. Regulation of shore lines Clater termed bulkhead linesl was incorporated into the statute by amendment in 1933. All lines had to be established in the interest of the public. Shore lines were to conform as nearly as possible to the natural shoreline. Section 30.02 was renumbered to become 30.11 by Chapter 449, Laws of 1959. The 1959 amendments also changed the term "shoreline" to "bulkhead line" to conform to federal terminology. The 1933 standards for establishing shorelines, however, were retained for bulkhead lines. Counties were also granted the"right to establish bulkhead lines. Previously, only villages, cities and towns enjoyed this authority. In addition, Sections 30.04 (deeming shorelines lawfully established prior to 1960 to be bulkhead lines subsequent to January 1, 1960), 30.05 Cexcluding municipally-owned submerged sharelands in Lake Michigan from the provisions of Chapter 30), and 30.06 Cenabling the department to waive the applicability to specified navigable waters of all or part of Section 30.11, among other provisionsl were created at this time. Subsequent amendments have modified Subsection (2) to allbw bulkhead lines to be farther out from shore than otherwise if part of a lease CChapter 535, Laws of 19611, created Subsection CS) requiring that leases be executed in the public Interest CChapter 535, Laws of 1961)., modified the notice requirements of Subsection (5)(c) (Chapter 252, Laws of 19651, and provided that lease disapproval be based an apparent threatened excessive destruction of wildlife habitat rather than objection of the Wisconsin Conservation Commission CChapter 276, Laws of 1969). Standards for approving bulkhead lines in nonleased areas are more stringent than standards for approving bulkhead lines in leased areas. Bulkhead lines in nonleased lands may be approved if found to be in strict geographic conformance with the natural shoreline and if found to be in the public interest. Regarding the first requirement, Town of Ashwaubenon v. Public Service Commission (1963) implies that strict geographic conformity alone cannot be used as a basis for denial of a b-u7khead line. Rather, the court said that such discretionary factors as the existing and potential use of the intermediate area, the existence of engineering complications, the cost of dredging and filling, the prospect of damage to scenic or recreational use of the river, the presence of pollution, and the influence upon navigation may be considered. This case was based on Section 30.11 prior to its amendment in 1969, however. Therefore, that it represents the current state of the law is not clear (Meyer 1978). To be on the safe side. the factors cited in Ashwaubenon should be addressed in determining whether a proposed bulkhead line meets the geographic conTo-rmity requirement. Indeed, many of these same considerations are used by the department to determine whether a proposed bulkhead line is in the public interest. In cases where only the strict geographic conformance standard is not met, however, the staff should still oppose approval. Establishment of a bulkhead line must also be found to be in the public interest (Subsection 30.11C2)). In gencral,.any use which has a public benefit that significantly outweighs a potential private benefit will be deemed to be in the public interest. Structures and fill consistent with this public purpose may be placed behind-the bulkhead line. Another factor which the department must consider is the impact on water quality. The potential of water pollutants leaching from fill material or of polluted runoff from activities conducted on top of the filled area must be evaluated. The department may withhold approval until the 8 applicant can assure placement of proper fill up to and along the entire length of the bulkhead line within a specified time period. Conditional approval may be granted if a municipality agrees to placement of fill within that time period. Other conditions which may be required include assurances that the project will not adversely affect flows, assurances that shoreland zoning standards promulgated under NR 115 will be complied with, limitations on the height of fill, and prohibition of structures. Bulkhead lines in violation of any law, especially flood plain or shoreland zoning ordinancei, cannot be approved under any circumstances. Establishment of a bulkhead line cannot interfere with the rights of nonconsenting riparian owners. A bulkhead line can cross upland if the owner agrees, or If just compensation is paid for the loss of the property. In addition, the upland area may be removed if necessary to promote the public interest. Bulkhead lines may not be approved where to do so would violate the trust by which the state holds lands for public use. For example, the ONR may not approve a bulkhead line where the net effect would be to transform a substantial amount of lake bed into upland. The reason is that approval may result in the appropriation by private riparian owners of land which is held in trust by the state for the public. Such land can be transferred only to a public body for public purposes C1960 O.A.G. 126). In addition, a hearing may be held where the lineis of considerable length, involves a relatively large area of lake bed, is a matter of concern for governmental agencies or for the general public, or for any other reason deemed appropriate. The department has no power to regulate the establishment of bulkhead lines on submerged lands in Lake Michigan, where the title to such has been granted to a municipal Ity. The only significant difference in approving bulkhead lines in leased areas is that conformance to the shoreline is not required. Prior to the execution of a lease by the board of commissioners of public lands, the ONR must determine whether the proposed physical changes are consistent with the public interest, and that execution of the lease will not threaten excessive destruction of wildlife habitat. These factors must also be considered for bulkhead lines in nonleased areas (Weinberg 1977). C. Section 30.12: Permits for structures and deposits in navigable waters Section 30.020)(b), now part of Section 30.12, was inserted in the statutes by the 1933 legislature. It prohibited the deposit of any material or the placement of any structure upon the bed of a navigable water, (I)-where no shoreline had been established or (2) beyond a shoreline where established. Wisconsin common law was to the same effect (Diedrich v. Northwestern Union Railway Lo. (1877) at 266). The legislature first provided for the issuance of permits to build structures on the beds of navigable waters in 1949 (Chapter 335, Laws of 1949). In that year, Section 30.02(l)(b) was amended to enable the Public Service Commission to grant to any riparian owner the right to build a structure, or to maintain a preexisting structure, for the riparian's own use, if the structure did not materially obstruct navigation. Section 30.02(l)(b) was again changed in 1951 (Chapter 712, Laws of 19511. Two additional stindards were to be met before a riparian would be granted the right to build or maintain a structure in navigable water. The structure could not reduce the effective flood flow capacity of a stream and could not prove detrimental to the public Interest. The law remained unchanged tintil after submission of the 1959 report by the WiscopSin Legislative Council. The report proposed the replacement of Section 30.02(l)(b) by a new Section 30.12C2)(a). The revised language provided for the issuance of permits, after notice and hearing, by the Public Service Commission, to build or maintain, for a riparian's own use, a structure in navigable water, if the same three conditions as in the 1951 version of the statutes were met. As presently written, Section 30.12(l) makes it unlawful to deposit any material or to place any structure an the bed of a navigable water where no bulkhead line ha's been established (Subsection (a)) or beyond a lawfully established bulkhead line CSubsection (b)) absent a permit from DNR. DNR may grant a permit to a riparian owner to build or maintain a structure for the riparian's own use if thrc,-a.conditions are met. The proposed structure must not materially obstruct navigation, reduce the effective flood flow capacity of a stream, or prove detrimental to the public interest. 9- As to the first requirement - that the permit applicant be a riparian owner there is considerable support for the proposition that it includes any person with a defined interest in real estate (a tenant, for example). Regarding the definition of structure, Subsection 30.12(2) does not provide for the issuance of a permit for the deposit of material. flany works are made of sand, gravel or concrete which is merely dumped. Whether such a pile of material qualifies as a structure or not was addressed by 1950 O.A.G. 230, holding that the term structure, as used in an earlier version of the statutes, Included any artificial creation possessing utility because of its form, rather than a mere deposit of material. These two principles mus-t-a-Tw-ays be found for a-Fer-mit to be granted (Kurtz 1978). Again, the determination is one which the ONR makes only after examining all the facts and circumstances of a particular case. The three statutory standards - effect on navigation, impact on stream capacity and the public interest test - are at the crux of the approval process. These standards being general in nature, however, considerable leeway is allowed regarding the type of evidence that can/should be presented. In determining whether a particular structure is a material obstruction to navigation, the department employs a balancing test to determine whether the obstruction to navigation is greater than any offsetting aid to navigation either in the area adjacent to the fill or in the entire lake. The department will also deny a permit if it feels that a project will impede navigation (Hixon v. Public Service Commission (1966)). The public interest test includes any factor which bears on whether the proposed structure will be detrimental to the navigable water in question, the rights of other riparian owners or the public trust. In general, the factors which the districts consider in determining whether a proposed project will be in the public interest or not may be divided into three groups: biological parameters, physical parameters and social parameters. Within the biological category, three areas of concern require protection: sport and commercial fisheries, game species and threatened or endangered plant and animal species. In this regard, a district will consider the impact of-a proposed project on habitat. Factors to be considered include the possibility and extent of lake bottom disturbance, impact on wetlands in both a qualitative and a quantitative sense, and impact on specifiedareas of concern, such as spawning and nursery areas. The second question asked is what effect a project will have on the health and stability of the lake ecosystem. Issues which arise include the impact on the diversity and productivity of an area and whether there will be significant adverse environmental changes without compensatory replacement or improvement. Considerations of physical change address possibilities of soil erosion along the shoreline; effects on littoral drift patterns, especially the possibility and extent of downdrift deposition or updrift deposition and downdrift beach starvation; and changes in wave action and ice formation. Evaluation of the social or cultural impacts of a proposal is the most elusive and least thoroughly looked at area of investigation. Public health is a factor, primarily the effect on water quality. Indeed, the Department of Health and Social Services is involved in waterway enlargement notices under Section 30.19. Public safety considerations address questions of navigational hazards - for example. whether the project will pose a hazard to recreational boaters. Public welfare encompasses many considerations, including: aesthetics; surface water use conflicts and interference with shoreline uses; presence of scientific areas; presence of archeological or historic sites; controversy; impact on adjoining property owners; purpose, especially the potential for public use or the criticalness to private use; economic impact on the surrounding area and neighboring facilities; effectiveness and useful life; and the financial capacity of the applicant. A last consideration is compliance with other regulatory authorities: county, municipal and federal. Local authority requirements usually involve compliance with flood plain and shoreland zoning ordinances and building codes. Federal authority requirements usually involve compliance with U.S. Army Corps of Engineers' permit requirements under Section 10 of the River and Harbor Act and Sections 403 and 404 of the Federal Clean Water Act, as amended. The Supreme Court of Wisconsin has interpreted the "public interest test" on a number of occasions. In Clafin v. Department of Natural Resources (1973), the court held that the determination that a specit7c-s-truFt-ureis deit-riim-en-577t-o tne pubiic interest an the ground that it impairs the natural beauty of a lake is a proper basis for denial of a permit. Similarly, the court upheld action by the ONR requiring abutting landowners to remove fill from a lake bed in order to protect the public - 10 interest in maintaining one of the state's most important resources (State v. McFarren (1974)). Compare this with Hixon v. Public Service Commission (19661, in which the F5C denied a permit on grounds that the proposal would constitute an unnecessary obstruction to navigation, would not allow for the free flow of water, and would be detrimental to the public interest. Here the court sustained the PSC's findings without a statement of the reasons why the commission determined that the project would be detrimental to the public interest! In addition, some municipalities have adopted zoning ordinances requiring compliance before certain structures can be built. DNR policy encourages an applicant to secure a municipal permit before applying for a departmental permit. .Manual Code 3535.1 (effective 2/19/751 describes the procedure for handling applications for permits to place a layer of sand or similar material an a lake bed under Section 30.12C2)(b). Once an applicant submits a request to ONR, the receiving office forwards a request to the district director. The district director will then send Form 3500-17, Application for a Sand Blanket Permit, to -the applicant. After the applicant returns the completed form, the district director will arrange for site inspection and completion of a field report, Form 3500-23. The district director will then approve or deny the application. If approved, conditions of approval might require use of pea gravel instead of sand, prohibition of use of plastic liner instead of sand, or reduced area or depth of coverage. Copies of completed Form 3500-17 are sent to the applicant, Bureau of Water Regulation and Zoning, Bureau of Environmental Impact, and area supervisor, among others. Manual Code 3526.1 provides guidelines for installing riprap shore protection. Section 30.12(2).(d). Stats. (created by Chapter 250, Laws of 1975) states that riprap or other similar material ray be placed on the bed and bank of a navigable body of water upon obtaining a permit from ONR. It was enacted at the request of the department to simplify the processing of permits for *riprap or other shore protection by eliminating the typical Section 30.12 permit requirements of notice and hearing. This section should not be used, therefore, where the purpose of the project is to create upland or regularize the shoreline as under Section 30.11, which would require bulkhead line approval. "Riprap or other similar material" for purposes of Section 30.12(21(dl includes rock or broken concrete without protruding reinforcing rods, retaining walls constructed of concrete, concrete blocks, logs, wood planks, piling, and other similar erosion control or shore protective works. These latter materials are included since the intent of the statute is to provide a rapid permitting procedure to allow a riparian owner to construct reasonable shore protective works with a minimum of delay to protect the property from further soil loss. Inclusion of these materials is also necessary to ensure compatibility of state and federal permit procedures because a general permit issued by the Corps of Engineers allows authorization of similar shore protection and erosion control devices for the Lake Michigan shoreline. Wood chunks, car bodies, unsorted demolition material, brick, plaster, black top or other material that could produce leachates or otherwise violate NR 151 are prohibited. Issuance or denial of a permit under this section is a Type III action and does not re@uire the preparation of an Environmental Impact Assessment Worksheet (Farm 1600-1). Hence no EIS is required. Agency interpretation of Section 30.12C21(bl grants an exception to the permit requirements as a matter of policy. Sudden loss of riparian land due to an unusual natural occurrence may be restored and the land protected without a permit If the land is restored within a one-year period. The restored land may be protected where the necessary structure is placed at or beyond the original ordinary high water mark. This exemption cannot be used, however, to restore land lost over a period of many years. Whether a permit is required or not, general guidelines on placement of riprap include the following. Riprap or other material may intrude into the waterway only as far as necessary to provide a stable foundation. Although a riprap layer or structure 18 inches thick will provide adequate protection in most cases, increased thickness is required along the shorelines of the Great Lakes. The riprap and other shore protection works should conform to the existing shoreline. Nor may the riprap or other structure materially impair navigation, place a burdenlon adjoining riparians, or be detrimental to the public interest - that is, reduce the effective flood flow capacity of a stream, destroy spawning beds, impair water quality, destroy scenic beauty, etc. (as abovel. The procedure for processing applications for permits to place riprap and other similar materials under Section 30-12(2)(b) is as follows. The applicant who must be a riparian owner or lessee, first submits a request to ONR. The district director will then send Form 3500-42, a riprap permit applica- tion, to the applicant. Once the applicant returns the completed application form, the district director will arrange for Inspection of the site and completion of Form 3500-23, the field investi- gation report. The water management investigator will determine the dimensions of the riprap and the distances from recoverable landmarks. At this point, the district director will approve or deny the application. Conditions of approval might include removal of bank material or sloping prior to placement, use of different materials, reduced thickness, or less encroachment on the lake bed. Copies of the permit are sent to the applicant, the district office, the Bureau of Water Regulation and Zoning, the Bureau of Environmental Impact, the area supervisor, the county zoning administrator, and the Corps of Engineers. Surveillance is maintained whether or not the project is approved. 0. Section 30.13: Wharves, piers and pierhead lines A riparian owner has the common law right to build a pier, wharf, or other structure in aid of navigation - that is, extending out to navigable water. This right, however, is subject to public rights of navigation and to the rights of the state as trustee over navigable waters. Therefore, it may be required or prohibited by law @Colson v. Salzman (1956), Bond v. Wojahn (1955), Ooemel Y. Jantz (1923), Madison v..Mayers ('18971). Wharves and piers receive special treatment under the statutes (see Section 30.13, created by Chapter 441, Laws of 1959). That is, unlike all other types of structures built or maintained in navigable waters, wharves and piers may be'constructed without a permit under Section 30.12, provided certain conditions are met. "Wharf or pier" for Section 30.13 purposes includes any structure whose primary purpose is that of a wharf or pier. If the primary purpose is to act as a jetty, breakwater, boat- house, etc., Section 30.12 will apply. The key question to be asked under Section 30.13 is whether a proposed pier or wharf will interfere with public rights in navigable waters or with the rights of other riparian owners. If there is no interference, a riparian owner may construct a pier or wharf out to a pierhead line - if one is established - without a permit under Section 30.12. Such a determination is made on an ad hoc basis. Regardless of whether or not a permit under Section 30.12 is required, however, any whar?-o-rpier extending beyond the natural shoreline or established bulkhead line must be so constructed as to allow the free flow of water underneath and as not to cause the formation of land upon the lake bed (Subsection 30.13(2)'). A full-scale investigation and hearing is not feasible, as a practical matter, because of the numerous inquiries received. In actual practice, therefore, the ONR will advise that no permit is necessary if a pier or wharf is of the usual type and extends out into the water only far enough to provide for navigation. A permit is required, however, if a complaint is filed or the proposed structure is controversial (Subsection 30.12C21(al). Riparian owners sometimes submit complaints that a wharf or pier has been constructed without a permit and interferes with private rights. In this case, the'department will investigate to determine whether public rights or interests might be involved (Subsection 30.14C21). The ONR determines whether a wharf or pier interferes with public rights in a navigable water based on all the facts and circumstances of the particular case. Factors taken into consideration include: the length, size and position of the structure in relation to others in the vicinity, to the topography of the shore and to adjacent property lines; the size and nature of the navigable water involved; the draft of the boat to be moored; and the type of structure and the manner in which it is to be constructed. As a general rule, any pier or wharf extending beyond similar structures in the vicinity or which Impedes the ability of adjoining riparians. among others, to navigate and have reasonable access to and from the shore in the vicinity of the structure will not be acceptable. Likewise, a proposed pier or wharf has a greater chance of succeeding if the distance it extends out from shore is In proportion to the size of the navigable water involved and of the parcel owned by the riparian constructing it. In addition, every pier or wharf has to be constructed in such a way as to avoid the accumulation of debris or the creation of undesirable conditions Csubsection 30.13(2)). Subsection 30.13C4) stipulates that any pier or wharf extending into a navigable water beyond a lawfully established pierhead line constitutes an unlawful obstruction absent a permit. As a general rule, any municipality which can establish a bulkhead line under Section 30.11 can establish a pierhead line under Subsection 30.13C3), and in the same manner. The statutory standards for approval of pierhead lines, however, differ from that of bulkhead lines. Section 30.13C3) requires that a municipality establish a pierhead line "in the interest of the preservation and protection of its harbor or of public rights in navigable waters". These standards being genera:l in nature, it is difficult to suggest the-type of evidence to be presented. Again, the generality of the statutory standards compels the ONR to base its decision on individual facts and circumstances. 12 It is interesting to note that the 1957 standard for approval of pierhead lines required that they be established "in the interest of the public" CSubsection 30.0201(a), Stats. 1956). According to Legislative Council notes for this section, the revised test (above) replaced this public interest standard in order to provide a somewhat better guide for the establishment of pierhead lines, "public rights in navigable waters" having taken on a definite meaning through judicial interpretation. (This subsection as a whole was adopted as per the recommendations of the final report of the Legislative Council's Ports and Navigation Committee in 1958. The impetus for revision of the laws relating to harbors and navigation came originally from the Great Lakes' Ports' Committee of the 1955 to 1957 Legislative Council, which inspired joint resolution No. 7, A in anticipation of increased commerce on the Great Lakes in the aftermath of the opening of the St. Lawrence Seaway.) Historically, municipalities have been authorized to remove obstructions to navigation as far back as 1906 (Supplement 1906, Section 950-90). As commercial navigation began to assume importance on the Great Lakes and as the need arose to maintain control over the development of inner harbors, municipalities were given additional authority to establish dock or wharf lines - established lines which limit the distance that a dock or wharf can be extended out from share (Subsection 30.02(l), Stats. 1917). In 1919, Section 30.02 was amended to provide that all such lines conform as nearly as possible to the original meander lines (Chapter 247. Laws of 1919). In 1933 the Public Service Commission came into the picture. The commission gained regulatory authority over the establishment of shore, dock and pier lines by a municipality. Moreover, the first statutory standards were promulgated - that is, establishment in thepublic interest and conformance to the shoreline. This same legislation authorized the PSC to regulate the building and maintenance of wharves and piers under the following sections of the newly created Subsection 30.02(l) (the former Subsection 30.02(l) was repealed at this time): (1) Subsection 30.02(l)(b) rendered it unlawful to deposit any material or to place any structure upon the bed of a navigable water where no shoreline has been established or beyond an established shoreline. (2) Subsection 30.02(l)(c) prohibited a riparian proprietor from extending a wharf or pier into navigable water beyond an established shoreline. (3) Subsection 30.02(l)(d) required that all wharves and piers extending beyond the shoreline allow the free flow of the water underneath and not cause formation of land upon the lake bed. (4) Section 31.25 declared every obstruction built or maintained in any navigable water of Wisconsin to be a public nuisance and subject to injunction or abatement, respectively, by action of the state or any citizen. Subsection 30,02(l)(c)'(1957) made it unlawful for any riparian proprietor to extend a wharf or pier into navigable water beyond an established line if such extension materially interfered with ructed navigation. The italicized part was adU-ed-By --rgT9--T- -i or obst a ent in Chapter.335) when t Fe-6-ame evident, in an attempt to enforce the law on 'certain lakes, that a strict enforcement of the law as written prior to 1949 would work great hardship on lake cottage owners, many of whom had piers ex tending beyond dock lines. The 1949 amendment made dock lines virtually meaningless, for it became necessary to determine in each case whether a wharf or pier materially interfered with or obstructed navigation. If so, it would be unlawful whether a dock line existed or not. This situation was remedied in 1959 (Chapter 441, Laws of 1959). The general rule then became that wharves and piers extending beyond lawfully established pierhead lines would be unlawful absent a permit from the PSC. The PSC could grant a permit if it found that the structure would not materially obstruct navigation, reduce the effective flood flow capacity of a stream, or be detrimental to the public interest. This new subsection gave meaning to pierhead lines 'without causing undue hardship to riparian owners whose wharves or piers extended beyond such lines. Subsections 30.02(l)(b) and 30.02(l)(c) have since become: Subsection 30.12(l), prohibiting the placement of a structure upon the bed of a navigable water where no bulkhead line has been established, or beyond a lawfully established bulkhead line, without a DNR permit or legislative authorization; Subsection 30.12C2)(a), authorizing ONR to grant a permit to a riparian owner to build or maintain a structure on the bed of a navigable water for the riparian's own use, provided that it@does not materially obstruct navigation, reduce the effective flood flow capacity of a stream, or prove detrimental to the public interest; Subsection 30.13(4), declaring a wharf or pier extending into a navigable water beyond a lawfully established pierhead line to be an unlawful obstruction of a navigable water unless a permit has been obtained; and Subsection 30.14(2), enabling the department to hold a hearing upon the complaint of any person that a wharf or pier exists in a navigable water in violation of Chapter 30. Section 31.25 is now Subsection 30.15(4). 13 E. Section 30.19: Enlargement of waterways "Waterway enlargement" encompasses such activities as the digging of a ditch or channel to provide a boat basin and grading on the bank. It can affect the nature and characteristics of a lake and cause pollution. In recognition of these problems and to provide control over development, the legislature enacted Section 30.19 (Chapter 284, Laws of 1961). Upon receiving an application, the DNR will send notification to departmental personnel (Bureau of Legal Services, Bureau of Water Quality, Bureau of Environmental Impact, Scientific Areas Council, and either the district director or the Bureau of Water Regulation and Zoning), the Department of Health and Social Services, the Board of Soil and Water Conservation Districts, the public intervenor, private environmental groups (Wisconsin Ecological Society, Sierra Club, Congress of Natural Resource Associations and Trout Unlimited), the applicant and attorney, the local zoning administrator, the clerk of the municipality and county in which the project or affected bodies of water are located, five adjacent property owners. and 'the U.S. Army Corps of Engineers. If written objection is filed within 30 days after mailing of the application. a hearing will be held. lotice of the hearing is given by publication and by mailing a copy of the notice to the Bureau of Legal Services, the Bureau of Environmental Impact, the Board of Soil and Water Conservation Districts, the public intervenor, the applicant, the applicant's attorney, the local zoning administrator, the district office, the five adjacent property owners, the Board of Health, the municipal and county clerks, and any other person objecting to or other-wise showing an interest in the project. The DNR will grant a permit if it finds that the project: will not injure public rights or interests, including fish or game habitat; will not cause environmental pollution (defined as contaminating or rendering unclean or impure the air, land or waters of the state, or making the same injurious to public health. harmful-for commercial or recreational use, or deleterious to fish, bird, animal or plant life); complies with Chapter 236 and with state sanitation laws; and will not materially injure the rights of any riparian owner on the affected body of water. If the department grants a permit, it will require that the waterway be designated as public. Conditions might be included in the permit - regarding the size, depth and side slopes of the water- way, for example - if the ONR deems them reasonably necessary to protect public health, safety, welfare, rights and interest as well as private rights and property. F. Section 30.20: Removal of material from beds of navigable waters Material on the beds of the Great Lakes - for example, deposits of sand, gravel or mar] - may be of economic value. Or it may constitute an accumulation of silt, vegetation or debris which fills in a portion of the lake and requires removal to restore the area to its former depth and naviga- bility. Legislation regarding removal of material from the beds of Lake Michigan, Lake Superior, Green Say, and other navigable waters within the jurisdiction of the state was first adopted in 1915. Chapter 185, s. 4570, Stats. 1915 declared the digging, removing or carrying away of rock or stone from the natural bed of a navigable water to be an offense against public policy unless the actor was a. riparian owner at the place of removal and had obtained the consent of the town supervisors, city common council, or village trustees. Chapter 137, Laws of 1919 added "sand. gravel, clay or other substance" to the list of regulated materials. Enactment of Chapter 410, Laws of 1923 granted the Railroad Commission (known as the Public Service Commission from 1933 on) control over the removal of any material from the bed of a navigable lake. Subsection 31.02(5) empowered the commission to enter into contracts on behalf of the state for the lease, sale or removal of any such material. Conditions could be imposed for the protection of the public interest or the interests of the state. The statute was passed in recognition of the fact that the state owns the beds of navigable waters in trust and that in providing the means for a person to acquire the right to remove material from a lake bed, the state is selling property having economic value. Angelo v. Railroad Commission (1928) upheld the constitutionality of this provision. Chapter 219, Laws of 1941 extended the commission's (now the Public Service Commission) powers to the beds of outlying waters on the same basis as in the case of.navigable lakes (Subsection 31.02(6), Stats. 1941). Chapter 441, Laws of 1959 amended Subsection 30.20(3) to declare that "outlying water" have the same meaning as in Subsection 29.01(4) (including Lakes Superior and Michigan, Green Bay, Sturgeon Bay, Sawyer's Harbor, and the Fox River from its mouth up to the dam at DePere). 14 - Chapter 632, Laws of 1961 created Subsection 30.20(bl, authorizing the Public Service Commission to enter into contracts on the state's behalf for the removal of any mineral, ore or other material from beneath the bed of a navigable lake, subject to whatever conditions were deemed necessary to the protic-tion of public and state interests. Subsection 30.20(2)(a) now requires a dredging contract for removal of material from the beds of the Great Lakes, ownership of the beds being in the state up to the ordinary high water mark. Cortracts may be entered into by the department acting on behalf of the state for a period up to five years. Similarily, Subsection 30.20(2)(b) governs the removal of any mineral, ore or material from beneath the bed of navigable lakes and waters, where the waters would not be disturbed during removal operations, and for the lease and sale of such material. Each contract must contain conditions to protect the public interest and the interests of the state. Contracts may run for a period up to 75 years. As of 1965, no one had applied for a contract under Section 30.20. The attorney general has held that where a bulkhead line has been established, a riparian owner must also obtain a contract under Section 30.20 prior to removing material from the lake bed landward of the bulkhead line and within the original ordinary high water mark (1974 O.A.G.). Interpretation by the Supreme Court lists adverse effects on water quality and increase in water pollution as major factors requiring serious consideration by the Department of Natural Resources in acting upon a permit (Reuter v. Department of Natural Resources (19691). Indeed, ONR has interpreted this case to extend to--a-TT Ghapter JU-31 matters LKurtz79W. Therefore, the ONR must make specific findings to this e?T-ect. As a result of low water conditions in Lakes Michigan and Superior, Section 30.205 zoning for certain lake bed removals - was created (Chapter 359, Laws of 19631. Subsection Cl) provides a means whereby a lake area in an outlying water, rendered unfit for recreational use by low water or siltation, may be restored to recreational use. In essence, Section 30.205 authorizes ONR to establish zones within which a riparian owner of developed land can remove the offending material. Once a zone is established, the full bureaucratic procedures under Subsection 30.20(2)(a) no longer apply. To date, no application has ever been filed under this section. Manual Code 3637.1 (effective 3/19/751 governs applications for dredging. Unusual dredging projects are referred to the Bureau of Water Regulation and Zoning for initial review prior to final approval by the district director. In all other cases, requests are first forwarded to the district director who will send Form 3500-19, Application for Authority to Remove Materials from the Bed of a Waterway, to the applicant. Copies are sent to the Bureaus of Water Regulation and Zoning and Environmental Impact. The county zoning administrator is also informed of the proposed project. The district director will then arrange for inspection of the proposed work and spoil disposal sites and evaluate any environmental effects. Form 3500-23, Investigator's Form, and Form 1600-1. EIA Work Sheet, are completed. In addition to the factors discussed with respect to structures under Section 30.12, the "public interest" in dredging situations also requires consideration of spoil deposition. In this regard, it is especially important that an upland site be provided. that spoil deposition not be in the hydraulic floodway of a stream, and that no known prehistoric area be adversely affected. Fall dredging requires special provision for spoil stabilization to prevent erosion of materials into surface waters before vegetation can be established in the spring. Public hotice and hearings are not required under Section 30.20. If the district director feels a hearing is necessary, however, or if a hearing is requested by the applicant, the procedure In M.C. 3506.1 and environmental impact directives will apply. NR 200.03C2)(g), Wis. Adm. Code. however, exempts dredge carriage returns when dredging is done under a Section 30.20 permit or contract. If the request is denied, the applicant will receive a written statement of the reasons for denial. If granted, authority is returned to the applicant with appropriate instructions and conditions for completion of the contract. In theory, surveillance is maintained over the project whether approved or not. IV. Conclusions and Recommendations: There were a number of expectations expressed and directions suggested wi th regard to this study. All evinced a concern for the generality of the legislative guidelines established for Chapter 30, especially for the public Interest test. There appears to be neither a unified nor a consistent theory to describe how the public interest is defined within the context of administrative decision making. Views vary considerably on whether or not this presents a problem and, if so, what is to be done about it. The Federal government, in the process of reviewing Wisconsin's proposed Coastal Management Program, evinced a concern for their ability to monitor the state's program absent guidelines for the generalized statutory standards (Coleman 1977). At the state level, response to the absence of guidelines varies considerably. The Public Intervenor contends that the ad hoc, standardless approach currently in effect runs the risk of violating due process and equal protection rights guaranteed an applicant for a Chapter 30 permit (Peshek 1978). The Department of Administration is sympathetic to the contention that the use of unwritten standards may constitute a violation of due process or the Administrative Procedure Act; therefore, it views this report as paving the way for the Natural Resources Board to adopt administrative rules on Chapter 30 (Owens 1977). The Madison office of the Department of Natural Resources, meanwhile, asserts that there are no administrative rules because the Bureau of Water Regulation and Zoning is not historically attuned to writing rules; that is, Chapter 30 has traditionally been administered on an ad hoc basis. Also, the department contends that significant guidelines have evolved through the case law, and that rules would tend to "cut the ONR short". ONR proposes, rather, that rules be implemented where an area of regulation is not transparent to the public, where legal interpretation is unclear, or as an aid to hearing examiners - in sum, in any area where the development of important decisions is not readily recognizable to public or agency decision makers. In addition, the ONR feels that individual depart- mental policies should be codified where clarity prevails (Meyer 1978). Each district office has its own perspective, differing both from that of the central office and from the other district offices. For example, the Southeast District's water management investigator feels that there are too many standards, that what is really needed is a technical handbook to serve as a guide for implementing Chapter 30 (Hausmann 1977). The Lake Michigan District's water management investigator, on the other hand, on balance favors the idea of administrative standards because, although it would tie his hands, it would also expedite denials CFassbender 1977). The other side, of course, is that it is easier to point to a piece of paper on which standards are written rather than to make judgement calls (Posekany 1978). Thus there are several "solutions" to the current ad hoc approach of administering Chapter 30, if a "solution" is indeed needed. One approach is to recodify Chapter 30 by statutory amendment. One supporter of recodification is Edmund Brick, Chief of the Bureau of Water Regulation and Zoning, who feels that Chapter 30 is a hodgepodge and wants a uniform statute. The other side of the argument has been expressed by Jim Kurtz, Chief of the Bureau of Legal Services, who has assigned recodification a low priority because he fears that a lot of what is already in the statutes would be lost by recodification (Curtner 1978). Lou Posekany, on the other hand, feels that, although Chapter 30 is rife with ambiguity and that many of the definitions are unclear or at least unworkable, we are simply "not smart enough" to attempt a rewriting (Posekany 1978). A second approach is to write administrative rules akin to those of the Army Corps of Engineers, to enhance uniformity and make the field employees' job easier. This alternative is espoused by those who believe that the quality of the regulatory effort varies from district to district (Peshek 1978). One objection to casting the public interest in concrete, as it were, is that we are dealing with dynamic systems of varying natural parameters, which must be assessed through experience rather than by discrete, quantifiable factors (Fassbender 1977). A third approach, currently being implemented, is to put together a handbook for use by district personnel in evaluating permit applications and in enforcement proceedings. Like the Manual Code, this handbook will merely comprise an internal operating procedure and be without the force of law beyond the agency staff. Having discussed differing viewpoints on how the public interest in navigable waters is defined, it may be useful here to examine which public interests in our coastal areas are currently receiving legislative or other recognition or protection. By virtue of Section 165.07, Wis. Stats., the Scientific Areas Preservation Council receives notice of all proceedings under Chapter 30. Their legislative mandate encompasses protection of Scientific Areas, including Natural Areas, Geological Sites, Archeological Sites, and Rare Species Habitats. A Natural Area is defined as-a tract of land or water so little modified by man's activity or sufficiently recovered that it contains intact native plant or animal communities believed to be repre- sentative of the presettlement landscape; Geological Sites are sites containing features of geological interest; Archeological Sites; and Rare Species Habitats, including the habitats of rare, threatened or endangered species of plants or an,imals. In 1976 the Council put together a Natural Areas Inventory for the Wisconsin Great Lakes coast, taking into account the presence of terrestrial and aquatic plant communities, geological sites, archeological sites, threatened or endangered plants or animalsq and natural features. In general, if-a district office is not doing an adwuate job of protecting this-interest or if they lack expertise, the Scientific Areas Preservation Council will intervene if an area is of statewide significance. Their task will be furthered by a coastal survey of archeological sites to be undertaken soon by the State Historical Society. Under current law, many species of endangered plants and animals receive Some protection CSection 29.415 and 29.546, Wis. Stats.l. Proposed legislation would extend additional protection to all nongame and threatened species of wildlife and wild plants as well C1977 A.S. 432) in light of the legislative finding that the activities of individuals and govermental agencies are destroying the few remaining whole plant and animal communities in Wisconsin. 16 - Of obvious concern is protection of the Great Lakes fishery. in lq76 the commercial value of the Lake Superior fishery was approximately $560,000 and of the Lake Michigan fishery approximately $2.5 million. The value of the sports fishery was equally significant (Poff 1978),. Of course, of principal concern to the regulation of coastal activities is preservation of spawning and nursery areas as well as prevention of water pollution. The state Supreme Court has been an active participant in this process. As discussed in the main body of the paper, the court is the prime actor in the expansion of the term "public interest" from a narrowly-defined interest in navigation to include a vast array of public uses of water (boating, fishing, hunting, swimming, etc.), the enjoyment of scenic beauty, the prevention of water pollution, and the protection of riparian rights. Recommendations: Recommendations are proposed based on the following assumptions: 1. That the public interest is not readily defined - indeed, that it is sufficiently changeable with the overall needs of the people that perhaps It should not be defined; 2. That activity along the Great Lakes is generally non-controversial; 3. That if adminstrative standards were to be adopted to better define the public interest test, they would likely be subject to the same criticisms as is the current procedure with regard to: uniformity of application among districts; equality of consideration for similar projects; selectivity of application among applicants; and exercise of professional judgement by the evaluator; and 4. That there are two components of the public interest in Wisconsin's coastal areas, one protective and the other developmental. Keeping these assumptions in mind, the alternative which would receive the least resistance yet still meet the needs of federal, state and individual interests is the preparation of a guidebook. This guidebook could provide basic, general information of a non-technical nature to assist applicants applying for a departmental permit. It should include a description of the ONR permit program, explain why and when a permit is required, provide a sample application form and sample application drawings, provide an overall application checklist, define any specialized tertns, and provide a map of relevant ONR districts, including the location of district and area offices, with addresses, phone numbers and contact personnel as appropriate. If a more far-reaching solution is sought, recodification of Chapter 30 could be attempted. Edmund Brick, Chief of the Bureau of Water Regulation and Zoning, recommends provision for differing evaluation procedures based upon an administrative finding that a given action is of major or minor impact, akin to NR 150 action types. The processing of minor actions would be expedited, whereas major actions would still require provision of extensive information by the applicant. This would address the federal interest in implementing categories for shortened review like the Corps of Engineers letter of permission procedure, described above (Coleman 1977). In either case, the factori upon which a decision to grant or deny a permit is based should be carefully documented. Currently, permit denials and approvals are usually phrased in highly generalized terms without a specific statement as to why a particular decision was reached. This approach was acceptable in the days of the Hixon case, but current decisions are more demanding (see, for example, Wisconsin Environmental Oecade v. Public Service Commission 79 Wis. 2d 409 (.1977)). 17 Figure 1. DNR FIELD DISTRICTS and AREAS BAY F I E L 0 DISTRICT BOUNDARIES 11 DOUGLAS 48rule .... AREA BOUNDARIES ASMLANO DISTRICT OFFICES AREAOFFICES NORT WEST JJRNETT WASHBURN SAWIFN Hayward Woodruff F ORE T F QR f E Spooner (serving Cumberland Area) Park ONE IDA 0 Falls POLK ARINE T TE LL- BARRON RVSK Rhinelander INCOL N Cumberland LANGLADE TAYLOR CONYO b' CROIX UNN HIPPEWA Antigo arinette WEST CEN RAL LARK ENOWNEE NORTH L M@CHIGA I ERCE TAU -CLAIRE SNA@ANC 1004 Eau Claire CENTRAL - - - - - - - - CE wooo PO TAGE W4UPACA Bus rALO TREMPEAL OUTAG&MIE EAU Wisconsin Green Bay Rapids JACKSON MANITOVOO JUNEAU ADAMS WAUSHARA INNEBAGO ALUMET Black River Falls MONA shkosh DISTRICT OFFICES L CROSS NORTHWEST MARQUE T I E GREEN L KE FONG 0.) L AL Box 309 LaCrosse Spooner 54801 EANON WEST CENTRAL SAUX COLUMBIA DODGE 1300 W. Clairemont ICNI AND Horicon OZAUXEI Eau Claire 54701 NORTH CENTRAL CRAWFORD so EAST Box 818 Rhinelander 54501 LAKE MICHIGAN Milwaukee Box 3600 G ANT Green Bay 54303 Madison Dodgeville GREEN ROCK W&LOORT" RACINE SOUTHERN _]LA FAYETTE hos"A R. 3, Wakanda Drive Waunakee 53597 SOUTHE N SOUTHEAST Box]3248 IL Milwaukee 53226 18 Figure 2: Pennit Procedure Flow Chart. L- Aoolic request L District Office cc. Bureau of Water Reaulation & Zoning, Bureau of Environmental Impact, County Zoning Administrator Northwest Lake Michiqa -utheast f Area Office District Field Investigation Fish manager Wildlife Manager Conservation @arden Water Management Investigator CC. eport JBureau of Water 00-23 lReoulation + Zoning] Technical Input Area Sunerviso7r Recommendations Distric Office M.C. 3551.1 Evaluation Environmental Impact Coordinator 1 reoares Form 1600-1, pe nvironmental Impact Assessment District, Di =recto=r @Final Assessment 30.02 Applies: 30.02 Not Applicable- 30.12(a) 30.11 30.13 30.12(b),(c),(d) 30.19 30.20 10- 30-day Notificat Permit Grant Procedure or Denial 30 Days ISU rveillance Objection on Basis 41NO Hearing it of Written Facts 'I Required r -Water manage @Water Management Investigator ment Investigator + Hearing Request Environmental Imnact Coordinator EIA + Files lRecommendations 4i - I - I District.Director Bureaus of Wat-,r Regulation + L Zoning and Legal Services Grant/Denial Objections lb ISurveillance U lec 0:91e Reasonable nreaNn f-H-ea @inq Decision: Permit Granted or Denied ta@@ ie or [Fm43 51 1 t Central Office Isurveillance Appendix A -19- DEPARTMENT OF NATURAL RESOURCES Anthony S. Earl Secretary BOX 7921 MADISON, WISCONSIN 53707 IN REPLY REFER TO: TOWARD A DEFINITION OF THE PUBLIC INTEREST Work Plan & Products 1. Identify and document the process through which permits and authority are granted to do work on the beds of tile Great Likes, paying particular attention to the factors applied in reviewing permit applications. 2. Research and document the various sections of the statutes which provide authority for various actions which are predicted to be in the public interest paying particular attention to the purposes and goals of the section. The end result is to be the definition of the interests of tile public sought to be protected. 3. Prepare a written report, including recommendations, concerning the definitions of the public interest and their role in regulatory decision making for the Coastal Management Council and the DNR Board. Schedule 0 N D J F M 1. Permit Process Identification 2. Research 3. Report with recommendations (Complete 3/31/78. Draft Report Available 3/l/78) Budget Salary & Fringe Benefits $9,300 (includes Secretarial Support) Travel 400 Supplies, Printing, etc. 300 TOTAL $10,000 Inkind - DNR Services $ 2,000 THIS IS 100% RECYCLED PAPER 21 - Appendix B: Selected Subsections from Chapter 30, Wisconsin Statutes 11 Establishment of bulkhead lines 72 Structures and deposits in navigable waters Y-3 Regulation of wharves and piers T9 Enlargement and protection of waterways TO- Removal of material from the beds of navigable waters 22 (5) FIDING OF PUBLIC INTEREST. (a) Prior 30.11 Establishment of bulkhead. lines. to the execution or any lease by the board of (1) WHO MAY ESTABLISH Any municipality commissioners of public lands of rights to may, subject to the approval of the department, submergeded lands or rights to rill in submerged by ordinance establish a bulkhead line and from lands held in trust for the public under s. 24.39, time to time reestablish the same along any the department of natural rcsources shall section of the share of any navigable waters determine either with or without a public within its boundaries. hearing whether or not the proposed physical (2) STANDARDS FOR ESTABLISHING. changes in the area contemplated as a result of Bulkhead lines shall be established in the public the execution of such lease are consistent with interest and shall conform as nearly as the public interest. Thirty days before determin- practicable to the existing shores. except that in ing whether such finding should or should not be the case of leases under sub. (5) and s. 24.39 (4) made the department of natural resources shall bulkhead final may be approved farther from the notify in writing the clerk of the county and clerk existing shoreline if they aft consistent with and of the city, village or town in which such changes are contemplated. the department of health and social service, and the U.S. Army Corps of a part of any lease excecuted by the board of Engineers. of the application for the lease. In making its finding the department of natural commissioners of public lands. resources shall give consideration to all reports (3) H0W ESTABLISHED. Whenever any mu- submitted in it. For lease applied for under s. nicipality proposes to establish a bulkhead line or 24.39 (4) (a) 2, the department shall not to restablish such a line already in existence, the approve the lease if it appear to threaten municipality shall indicate both the existing excessive destruction of wild life habitat. shore and such proposed bulkhead line upon a, (b) Whcn considering leases to allow certain map and shall file with the department for its initial improvements such as, but not restricted approval 3 copies thereof together with 3 copies to, filling on submergcd lands to create sites for of the ordinance establishing the bulkhead line. further facilities, the department may determine Such map shall use a scale of not less than 100 whether such initial improvements arc consistent feet to an inch or such other scale as may be with the public interest in the navigable waters required by the department. Upon approval by involved even through the exact final use to which live department, the municipality shall rile the these improvements will be put is not known. The copies of the map and ordinance as follows: one department, at the time it rinds that a proposed in the office of the department, one in the office lease would be consistent with the public interest of file clerk of the municipality, and one in the office of the register of deeds of the county in in the navigable waters involved, may include in which the waters lie. No such lines are legally its findings such limitations upon the use of established until such copies of the map and improvements as it considers necessary to ordinance have been so approved and filed. confinene their use to functions prim, (4) RIPARIAN RIGHTS PRESERVED. Establish- water transportation or otherwise of public went of a bulkhead line shall not abridge the benefit. The board of commissioners of public riparian rights of riparian proprictors. Riparian land.-, shall include in the lense such limitations properties may place solid structures or fill up to on final use as is determined by the department. such line. (c) Upon the complaint of any person to tile department that current list made or rights leased tinder s. 24.39 (4) is inconsistent with both 1. its original findings. and 2. the public interest, the department shall hold a public hearing thereon after the publication of a class 2 notice, under ch. 985. If the department rinds that the present use conforms neither to its original finding nor to the present public interest, it shall submit its finding to the governor, and the governor may cause: tile attorney general or the district attorney of the proper county to bring action in the name of the state in a court of competent jurisdiction to declare the lease terminated and to institute appropriate action for removal of structure or cessation of practices in violation of such lease. A bulkhead line is not merely the natural shoreline but one legislatively established by a municiality, hence it May differ from the existing shoreline and is also distinguishable from the low-, and high-water marks as heretofore judicially defined Sste v. McFarren, 62 W (2d) 492.215 NW, (2d) 459. Where a bulkhead line has been established a riparian owner most nonetheless obtain a permit or conract 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. 23 30.12 Structures and deposits In navi- approval as stated in this paragraph. An gable waters prohiblied; exceptions; pen- application for approval to put rand or other alty. (1) GENERAL PROHIBITION. Unless a similar material on the bed of a lake for such permit has been granted by the department purpose. shall be made to the department. pursuant to statitte or the legislture has Thereupon the department shall inspect such otherwise authorized structures or dcposits in proposal and the location involved. The depart- navigable waters, it is unlawful: ment may disapprove such application if it finds (a) To deposit any material or to place any the proposed work will materially impair structure upon the bed of any navigable water navigation or be detrimental to the public where no bulkhead line has been established; or interest. The applicant shall be notified by mail (b) To deposit any material or to place any as to the disposition of his application. structure upon the bed of any navigabic water (c) A riparian owner may place a fish crib or beyond a lawfully established bulkhead fire, other similar device on the bed of a lake for the (2) PERMITS TO PLACE STRUCTURES OR purpose of improving fish habitat upon obtaining DESPOSITS IN NAVIGABLE WATERS. (a) The approval as stated in this paragraph. An department may, upon application and after application for approval to put a fish crib or other notice and hearing, grant loany riparian owner a similar device on the bed of a like for such permit to build or maintain for his own use a purpose shall be made to the department. structure otherwise prohibited by statute, pro- Thereupon the department shall inspect such vided such structure does not materially obstruct proposal and the location involved. The depart- navigation or reduce the effective flood flow ment may disapprove such application if it finds capacity of a stream and is not detrimental to the the proposed work will materially impair public interest. navigition or be detrimental to the public (b) A riparian owner may place a layer of interest. The applicant shall be notified by mail sand or other similar material on the bed of a lake as to the disposition of the application. adJacent to his property for the purpose of (d) A riparian owner may place riprap or improving recreational use upon obtaining other similar material on the bed and bank of navigable. waters adjacent to the owner's property for the purpose of protecting the stream bank or lake shore and adjacent land from erosion-ripon obtaining approval as stated in this paragraph. An application for approval to put riprap tio ollicr similar material on the bed of navigable waters for such purpose shall be made to the department. Thereupon the department shall inspect such proposal and the location involved. The department may disapprove such application if it finds the proposcd work will materially impair navigation or be detrimental to the public interest. The applicant shall be notified by mail as to the disposition of the application. (3) 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. History: 1975c. 250,421 In a state proceeding to enforce a department order requiring an owner of land abuilinga navigable lake to remove a quantity of fill, the burder to proof is on the state to establish the nonexistence of a bulkhead line. State v. McFarren, 62 W (2d) 492,215 NW (2d) 459. (1) (a) was not intended to apply io conduct which only indirectly and unintentionally results in deposits on lake beds. State v Deetz. 66 W (2d) 1, 224 NW (2d) 407. See note in 30 11, citing 63 Atty. Gen. 445. 24 30.13 Regulation of wharves and piers; establishment of pierhead lines.( I) RIGHTS OF RIPARIAN PROPRIETORS. Riparian propric- tors may construct wharves or piers innavigable water in aid of navigation without obtaining a permit under s. 30.12. provided such wharves or piers do not interfere with public rights in navigable waters or with rights of other riparian proptictors, and subject to any pierhead line which may have been established and to the regulations contained in sub. (2) and in any ordinances enacted pursuant thereto except as otherwise expressly provided, any wharf or pier which does not comply with this subsection constitutes an unlawful obstruction of navigable Crs. (2) WHARVES AND PIERS REGULATION. All wharves and piers extending beyond the natural shore or established bulkhead line shall be so constructed as to allow the free movement of water underneath and in such manner as will not cause the Formation or land upon the bed of the valer. A municipality may enact ordinances not inconsistent with this section regulating the construction of wharves and piers located within, attachcd to land within such municipality. (3) ESTABLISHMENT OF PIERHEADLINES. Any municipality authorized by s 30.11 to establish a bulkhead line may also establish a pierhead line in the same manner as it is authorized to establish a bulkhead line, except that if such municipality has created a board of harbor commissioners the municipalify must obtain the approval of such board to the establishment of the pierhead, line in addition to the approval of the department. Any pierhead line established by a municipality shall be established in the interest of the preservation and protection of its harbor of public rights in navigable waters. (4) WITARVES AND PIERS BEYOND PIERHEAD LINES PROHIBITED; EXCEPTIONS. Any wharf or pier extending into navigable water beyond a lawrully established pierhead line constitutes an unlawful obstruction of navigable water unless a permit for such wharf or pier has been obtained pormanttos.30.12(2). 25 NAVIGABLE WATERS, HARBORS AND NAVIGATION 30.19 (C)Thc name and address of the secretary of any property owners association pertaining to the bodies of water affected by the project or if there is no such association, the names and addresses of at least 5 persons who own real property located adjacent to the bodies of water. If fewer than 5 persons own real property located adjacent to the bodies of water, the names and addresses of such persons that own real estate so located shall be given. (f) Such other information that may be required by the department. (3) NOTICE OF HEARING. Upon receipt of the application the department shall mail copies to 30.19 Enlargement and protection of wa- the department of health and social services, terways. (1) PERMITS REQUIRED. Unless a clerks. of the municipality and county in which permit has been granted by the department or the project or bodies of watcr affected are authorization has been granted by the legisla- located, and to the other persons named in sub. ture, it is unlawful: (2) (e), accompanied by a statement that unless (a) To construct, dredge, commence or do written objection is filed with the department of anywork with respect to any artificial waterway, natural resources within 30 days after the canal, channel, ditch, lagoon, pond, lake or mailing of the application, the department may similar waterway where the purpose is ultimate take action to grant the application without connection with an existing navigable stream, public hearing. If the application affects the lake or other body or navigable water, or where Milwaukee river, the Menomonee river, the any part of such artificial waterway is located Kinnickinnic river. the Root river or any of the within 500 feet of the Ordinary high-water mark tributaries thereof, notice shall also be given to of in existing navigable stream, lake or other the metropolitan sewerage district or the county body of navigable water. of Milwaukee. If timely objection is Filed, the (b) To connect any natural or artificially department shall set the application for public constructed waterway, canal, channel, ditch, hearing. Notice of such hearing shall be given by lagoon, pond, lake or similar waterway with an publication and by mailing a copy of the notice. existing body of navigable water for navigation is provided in s. 31.06, to the persons named in or any other purpose. this subsection. (c) To grade or otherwise remove top soil (4) ISSUANCE OF PERMIT. If the department from the bank of any navigable stream, lake or find that the project will not injure public rights other body of navigable water where the area or interest, including fish and game habitat, that exposed by such grading or removal will exceed the project will not cause environmental 10,000 square feet. pollution as defined in s. 144.30-(9), that the (d) This section shall not apply to the project conforms to the requirement of laws for construction and repair of public highways or to the platting of land and for sanitation and that no any agriculture uses of land nor to any material injury to the rights of any riparian navigable body of water located wholly or partly owners on any body of water affected will result, in any county having a population of 500,000 or the department shall issue a permit authorizing more. the enlargement of the waterways affected. (2) PERMITS FOR WORK OR TO ENLARGE (5) CONDITIONS OF PERMIT. The permit shall WATERWAYS. Before any work or connection provide that all artificial waterways constructed specified in sub. ( I ) is undertaken the applicant under this section shall be public waterways. The shall rile an application with the department department may impose such further conditions setting forth the following: in the permit that it finds reasonably necessary to (a) The name and address of the applicant. protect public health, safety, welfare, rights and interest and to protect private rights and (b) The legal description of the lands property. included in the project. (6) PENALTY. Any person violating this (c) A summary statement of the purpose of section or any term or condition of a permit the project. issued pursuant thereto shall forfeit not more (d) A map or diagram showing the proposal than S 1,000. on an adequate scale with contours and cross- History. 1971 c. 273. section profiles of the waterways to be con- See note tp 88.21; citing Atty. Gen.355. structed or grading to be undertaken. See note to 30.11. citing 63 Atty. Gen. 445. - 26 - 30.20 Removal of material from beds of navigable waters. (1) Unlawful removal. (a) No person shall remove any material from the bed of any navigable lake or from the bed of any outlying waters of this state without first obtaining a contract therefore as provided in sub. (2) (b) No person shall remove any material from the bed of any lake or stream not mentioned in par. (a) without first obtaining a permit from the department under sub. (2)(c). (c) Any person violating this section shall forfeit not more than $1,000 for each such violation. (2) Contracts for Removal. (a) The department, whenever consistent with public rights, may enter into contracts on behalf of the state for the removal of any material from the bed of any navigable lake or any of the outlying waters, and for the lease or sale of such material. Every such contract shall contain such condi- tions as may be necessary for the protection of the public interest and the interests of the state and shall fix the compensation to be paid to the state for material so removed, except that no compensation shall be paid for such material if the contract is with a municipality and the material is to be used for a municipal purpose and not for resale. No contract entered into pursuant to this paragraph shall run for a longer period than 5 years. (b) The department, whenever consistent with public rights, may enter into contract on behalf of the state for the removal of any mineral, ore and material from beneath the bed of navigable lakes and waters, where the waters would not be disturbed in the removal opertion and for the lease and sale of such mineral, material and ore and provide the necessary regulations for all incident thereto. Every such contract shall contain such conitions as may be necessary for the protection of the public interest and the interests of the state, and shall fix the compensation to be paid to the state for the material, mineral and ore so removed. No contract entered into, pursuant to this paragraph, shall run for a longer period 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. (c) A permit to remove material from the bed of any lake or stream not included in sub. (1)(a) may be issued by the department if it finds that the issuance of such a permit will be consistent with the public interest in the water involved. The department may adopt rules to enable it to administer this section. (3) Outlying Waters Defined. In this section, "outlying waters" has to meaning designated in s. 29.01 (4). See note to 30.11, citing 63 Atty Gen 445 27 Appendix C: Selected Sections from the Policies and Procedures Manual of the Wisconsin Department of Natural Resources 1600-1 Environmental Impact Assessment Screening Worksheet 3500-12 Application for Enlargement of Waterways 3500-17 Application for Sand Blanket Permit 3500-19 Application for authority to remove materials from the bed of a waterway 3500-21 Establishment of Bulkhead Lines 3500-23 Water Regulation Investigation 3500-28 Application for a Permit for a Structure in Navigable Waters 3500-41 Application for a Fish Crib Permit 3500-42 Application for a Riprap Permit 3506.1 Permit and/or Approval Procedure: Chapters 30 and .31 3535.1 Application for Sand Blanket Permit 3536.1 Riprap Shore Protection 3537.1 Application for Dredging 3551.1 Flood Plain Management (For All DNR Ty e II Regulatory Actions) DEPARTMENT OF NATURAL RESOURCES .p FORM 1600-1 29 DISTRICT OR BUREAU REV. 7-77 DOCKET NUMSER ENVIRONMENTAL IMPACT ASSESSMENT SCREENING WORKSHEET Title of Proposal: Location: County Township North, Range East, West Section(s) Political Town Existing Environment: .Project: 1) Description (overview) 2) Purpose and Need Statutory Authority: Estimated Project Costs: 30 BENEFICT= AND ADVERSE ENVIRONMENTAL DeACTS 1) Ph@sical 2) Biological 3) Economic 4) Social 5) Energy PROBAbLt ADVERSE 02 S THAT OT BE AVOIDED 31 IRREVERSIBLE Olt IRRETRIIVAB17 IMMITMTS M RE-SOUCES ALTERNATIVES JEVALUATION Zrespond to arl Iii-teaoi-iii7o ITEM YES F40 UNKNOWN 1) Does the action stimulate secondary effects? 2) Does the action create a new environmental effect? 3) Is the resource affected geographically scarce? 4) Is the action precedent setting? 5) Are there reasonable alternatives? 6) Is the action highly controversial? 7) Is the action inconsistent with long-range plans or policies? 8) Are there cumulative impacts which (in total) are major and significant? 9) Does-the action affect historical, scientific or archeological sites? 10) Does the action foreclose future options? 11) Are there considerable energy impacts? 12) Are there considerable economic impacts? 13) Are there considerable social impacts? 14) Other Project Title: Docket Number: 32 WOMMENDATION- EIS Not Required . . . . . . . . . . . . . . . . . . f Refer to Office of the Secretary . . . . . . . . . . . . . . . . . . . . C3 Major and Significant Action: Prepare EIS . . . . . . . . . . . . 0 . . . C3' sufficient Data EIR Reguested . . . . . . . . . . . . . . . . . . . . STAT&MNI OF NUN-5i(.iN1&.LWWT 1= State reasons why the proposed actlon does not requIre an 91S SiGNATURSOF EVALUATOR DATE IED TO BE 1Y COMFLIANUt WiTli WtXA OR BUREAU DIRECTOR. OR OESIGNFE OATS @FPROVED (if required by Manual Code) DIRECTOR, BEI DATE This decision is not final. until approved by Bureau or District Director (or Designee); or Director, BEI. .4. 33 Application for Enlargement of Waterways STATE OF WISCONSIN (Section 30.19, Wisconsin Statutes) DEPARTMENT OF NATURAL RESOURCES Form 3500-12 PLEASE SUBMIT 2 COMPLETE COPIES OF THE APPLICATION TO TEE APPROPRIATE DNR DISTRICT OFFICZ The enclosed map indicates DNR district boundaries and district office locations. Assistance in completing applications is available at the district offices. Please complete all parts of the application, including the 5 names and addresses for notification. Applicant Mail Address Zip Code Name of Adjacent Waterway County Location of Project:_quarter of the_quarter of section township (east) -north, Range (west), Town of Property Description: (Attach copy of deed or use additional sheets, if necessary) Purpose of Project: (to be feet long, feet wide..-feet deep, average) 1. Unconnected pond: farm fish and wildlife private swimming-, public swimming_, other 2. Connected waterway: boat channel or basin swimming_, fish and wildlife farm , real estate development with (individual seep- age systems or (municipal sewerage system@__), other Map or Diagram Required: (use 8k" x 13" sheets of paper, if possible) 1. Number required:. (a) If 8V x 13" or smaller, submit 2 copies. (b) If larger in either dimension than 8k" x 13", submit a tracing suitable for blueprinting or 25 copies. 2. In unconnected pond, include: (a) Plan view, to scale, showing property lines, existing waterways, proposed enlargement, and spoil disposal area. (b) Cross sections, to scale, showing elevations and depth of spoil banks. 34- - 3. If connected waterway, also include on the map: (a) one foot contours of land involved, with relative elevation of water level at time of survey and ordinary high water of the waterway, referred to a permanent point or benchmark. (b) Borings at not less than one per acre of area with log of materials and ground water depth. (c) Locations and dimensions of lots, if dividing the project land into smaller parcels. (d) on the cross sections, show elevation of finished grade, including the spoil disposal area, with depth and kind of fill material. Prior Approvals: (Since January 1, 1948, counties have been required to zone shorelands.) Submit a copy of the county zoning permit for this project or show that no permit is required from the county, city, or village. For Notification: 1. List below the name and mailing address of the persons owning shoreland property on the adjacent waterway on each side of the applicant's propert7: 1. 2. 2. (a) List the name and mailing address of the secretary of any property owuerls association pertaining to the adjacent waterway; or if there is no such organization; (b). List the names and mailing addresses of 5 persons who own shoreland property on the adjacent waterway in the vicinity of the project lands: 1. 2. 3. 4. if fewer than 5 persons own all the shoreland property on the adjacent waterway, give names and addresses of all such persons'and state that there Are no moVe. _Applicant's Signature Date Rev. 2-T2 35 State of @isconsin APPLICATION FOR SAND BLANKET PERMIT Department of Natural Resources (Section 30.12(2)(b), Wis. Stats.) Box 7921 Form 3500-17 Madison, Wisconsin 53707 Rev. 7-76 ' Instructions: Complete items 1 through 8, sign, date and return. 1. The applicant and riparian property owner herein is: Name Mail Address Zip Code Fire No. or Address of Lakeshore Home Identification No. 2. Name of Lake County 3. Location of Project: _ quarter of the quarter of section (east) township north, range _ (west), Town of Property Description: (Attach copy of deed or use additional sheets, if necessary) NOTE: A complete legal description of the property must be submitted. 4. The purpose for which said layer of sand or other similar material is to be placed on the bed of said lake is: 5. ownership of lands immediately adjacent to applicant's lakeshore property is as follows: Name Address Name Address 6. -It is proposed to place a --inch layer of material to cover an area feet in length (measured along the shore) by _ feet lakeward, starting feet from the existing shoreline as shown on the sketch on the reverse side. 7. The depths of the water in the vicinity of the area involved are as follows: Normal dept-h--of-water 1 foot from shoreline is inches. Normal depth of water at the point to which the proposed layer will extend is inches. 36 8. Shown on sketch below, the area of the lakebed on which it is proposed to place the layer of sand or other similar material, showing length and width of the layer of material. Also describe or show by a sketch the highway route by which the site may be reached by the inspector. Dated Signature of Owner of Described Lakeshore ProDerty LEAVE BLANK - DEPARTMENT USE ONLY ORDER APPROVING OR DENYING APPLICATION Your application for authority to place a layer of sand or similar material on the bed of Lake, in County, is hereby: 1. M Approved as applied for. 2..r7 Approved as limited herewith: 3. Denied for the following reason: When application is approved the permit expires 12 months from date as indicated below. State of Wisconsin Department of Natural Resources For the Secretary BY I District Director Date 4-71 37 Form 3500-19 STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES Application for Authority to Remove Materials Section 30.20, Wisconsin Statutes from the 3ed of a Waterway PLEASE SUBMIT 2 C MLETE COPIES OF THE APPLICATION TO T![E APPROPRIATE DNR DISTRICT OFFICE The enclosed map indicates DUR discrict boundaries and district office locations. Assistance in completing applications is available at the district offices. A contract is required on natural lakes, a permit is required on any other lake or stream. ApplLcant Mail Address Zip Code Name of Waterway county If a lake, is there a dam on the outlet stream: Yes _ No Location of Project: quarter of the quarter of section (east) Towrnship__.______North, Range_ (west), Town of_ Property description: (Attach copy of deed or use additional sheets, if necessary.) If one person acts as agent for a group, include names and property descrip- tion of each riparian involved. Purpose of Project (designate whether for improving lakebed, channel for navigation, filling uplands) Quantity of material to be removed: cubic yards. Location of Spoil Disposal Area Since January 1, 1968, counties have been required to zone shorelands. If the disposal area is within 1,000 feet of a lake or stream, submit a copy of your zoning permit for filling, or proof that a permit is not required ffom the county. For Notificatio The name and address of persons who own property on the waterway on either side of the applicant's property: 1. Zip Code Zip Code The name and mailing address of the secretary of any property owners' association pertaining to the body of water affected by the project: Map or Diagram - Submit a map showing the general location of the project and a scale drawing showing the proposed work, property lines, high water shoreline, proposed disposal area, dimensions in feet, and cross sections with elevations. Use 8@" by 13" paper, or submit 12 copies of drawings or a tracing suitable for making blueprints. The services of a registered land surveyor or professional engineer are advisable. Applicant's signature (The applicant must be the owner of the project lands or his authorized representative) Signature Date- Rev. 3-T2 38 State of Wisconsin Form 3500-21 Department of Natural Resources Rev. 7-76 Box 7921 Madison, Wisconsin 53707 Section 30.11(3), Wis. Stats. ORDINAIKE NUMER Introduced By .WHMAS the city of County, Wisconsin, by and through its c iity council, proposes to establish in the interes@_ of the public and pursuant to Section 30.11, Wisconsin Statutes, a new bulkhead line along a part of the shore of County, as hereinifter described, and does ordain as follows: 1. That the bulkhead line of that part of the shore of hereinafter described and more particularly shown by the attached map, is established and determined as set forth in the following description and the attached map, subject to the approval of the Department of Natural Resources, namely: (Here give description of new bulkhead line by courses and distances.) 2. That three certified copies of the ordinance, together with-three true and correct copies of such map, be submitted to the Department of Natural Resources for its approval 3. That upon the return and receipt of such approved maps, the same be filed as follows: One in the-office of the Department of Natural Resources; One in the office of the city clerk of the City of Wisconsin;,and One in the office of the register of deeds for and in County, Wisconsin. Passed this day of lg_. President of Council City Clerk, hereby certify that the above is a true and correct copy of Ordinance Number passed by the Council of the City of Wisconsin, on 19 City Clerk 39 Form 3500-23 bepartment of Natura Resources Rev. 7-77 DITRA-DEPARTMENT MEMORANDUM StatLon Dat IN REPLY REFER TO: 3500 TO: Docket Number: FROM: Assignment Number: SUBJECT: Water Regulation Investigation, County Location: Section T N, R E Investigation Date: Water Lake Flowage Stream Applicant's Name: Address: Applicant contacted during inspection: Yes No Nature of proposed project: (Check one or more) Strom Straightening Diversion Dam Construction Sand Blanket Dredging Structure (Describe) Pond or Channel (Dug) Grading (in excess of 10,000 sq. ft.) Other (Describe) Tillable acreage determination - riparian land: Describe area prior to proposed alteration@ Permit required? Yes No Plan approval required? Yes NO (bridges or dams only) REVIEW ORIGINAL APPLICATION FOR ACCURACY: Name of water correct according to waters inventory report? Yes No Legal description of project site correct? Yes No Names of adjacent property owners complete? Yes NO Other errors or omissions observed in application: LAKE FLOWAGE STREAM: Surface (acres) Total length miles Depth (feet) Max. _ Avg., Dimensions of stream at site of proposed Depth of area to be altered (feet) alteration: Width Depth _ Length Public access: Yes No Flow in efs: Date Flow was: estimated metered If available, attach lake survey map 11 floating chip showing area to be altered. Navigable: Yes No If no, explain why: 4o Water Mgt: Trout: Yes ITO Species Class 1,2 or 3 Muskie: Yes NO Class A, B, or C (Circle one) Other: (List and indicate abundance) Fish spawning area: Trout Muskie Bass Walleye Northern Bluegin - Cra e Other -Battom, type at site: Rubble 2 Gravel Z Sand z Silt Z Organic 2 Vegetation: Upland Aquatic Wildlife Mgt: (Value) Beaver - Muskrat waterfowl Shore birds Others (List and indicate abundance) Present public use: Hunting Fishing _ Trapping Swimming Navigation Others Shoiellne stabilit7: Stable, Unstable (Describe) Descrile. spoil deposition area If applicable: Scientific Areas Preservation Council Interest: Yes NO State Ustorical Society Interest: Yes - No FLOODPIA111 AND SHOREA&M ZONING CONSIDERATIOITS: zoning classification of project site: Permit(s) required from the following'. Corp Eng; Yes County: Yes NO Town: Yes NO Village or City: Yes NO Stati any conflicts with NR 113 and NR 116, Wisconsin Administrative Code, the proposed project will have. Present Laud use (within 300 feet of shoreline): 41 SPECIAL ENVIRONMENTAL CONSIDERATIONS: Aesthetic values (describe the unique attractive- ness and natural setting of the area and what damage may be caused) State opinion regarding impact of project as proposed on the environment and adjacent property owners (consider the ecological diversity of the area and what contribution this diversity makes to the stability of the lake or stream involved): Additional data required: Special condition to be incorporated in permit if granted: State objections, if any, in detail below with any other comments relevant to the proposal: By Date Area Fish Manager Object to proposal: Yes NO If yes, explain: -3- 42 By Date Area Wildlife Manager Object to proposal: Yes NO Tf yes, explain: By Date Area Warden Object to proposal: Yes No Tf yes, explain: By Date Area Water Mgt..Iuvestigator Object to proposal: Yes NO Tf yes, explain: Same of iuvestigator(s): District recommendation: Opposed NO Opposition For District Director Note: Attach diagrams or maps if needed to fully explain your evaluation. Submit' me original to District Hen-'quarters. Keep copies as needed for your files. -4- 3500-28 43 Application for a Permit for a Structure in STATE OF WISCONSIN Navigable Waters (Section 30.12, Wis. Stats.) DEPARTMEFT OF NATURAL RESOURCES PLEASE SUBMIT 2 COMPLETE COPIES OF THE APPLICATION TO THE APPROPRIATE DNR DISTRICT OFFICE. The enclosed map indicates DNR district boundaries and district office locations. Assistance in completing applications is available at the district offices. Twelve copies of the map and plans on 8@" x 11" sheets of paper must be submitted with application. Owner: Address: Zip ETK Name of Waterway County Location of Structure: quarter of the quarter of section township (east) north, range (west), Town of Legal description of property abutting waterway (attach copy of deed) Nature of Ownership: Deed Land Contract Lease Othef Type of Structure- Description (dimensions and materials): Purpose: Reason structure must be located in waterway: Building Permits: Have permits been obtained from the following, where required? Corps of Engineers ---- County_ Local Municipality Name and address of'persons who own the property abutting the waterway on each side of applicant's property: 44 Name and address of secretary of property owner's association on waterway (if one exists). Financial Responsibility: Is the owner financially capable of constructing, main- taining, and removing the structure, if necessary? Can you submit proof of financial status, if required? Applicant's Signature Date Required Project information 1. Map and Plan Requirements A. Location map with a scale not less than I inch - 6 miles indicating the relationship'of the project site to major highways and at least one city or village. B. Plan view of project site with a scale not less than I inch - 200 feet. C. Structure plan and cross-sections (longitudinal and transverse) with a scale not less than I inch - 20 feet indicating dimensions, slopes, types of materials,,ordinary high water elevation and existing shoreline. 11. Hydraulic cross-section and profile for structures proposed on navigable streams (elevations to be tied to mean sea level or permanent benchmarks). A. Cross-section of the stream at the site of the proposed structure and extending landward on both sides of the stream to an elevation 10 feet above the immediate bank or a distance of 1000 feet. Scale: not less than V 200 feet horizontal and V,= 5 feet vertical. B. Elevations of the water surface 1000 feet upstream and 1000 feet down- stream from the proposed structure. Ill. Planimetric information A. Location of existing waterways B. Landowners property lines C. Roads- bridges or buildings D. Locat:on of site with respect to section, township and range E. Proposed structure NOTE: On naviRable streams the hydraulic croos-section and.profile must be certifi;d by a state or Federal agency, a registered land surveyor or registered engineer. 45 State of Wisconsin APPLICATION FOR FISH ULIB PERMIT Department of Natural Resources Section 30.12 (2) (c) Wis. Stats. Form 3500-41 7-76 Instructions: Complete items 1 through 7, sign, date and return to appropriate DNR District Headquarters. 1. The applicant and riparian property owner herein is: Name Mail Address Zip Code Fire No. or Address at Project Location Identification No. 2. Name of Lake County 3. Location of Project quarter of the quarter of section .(east) township north, range (west), Town of Property Description: (Attach copy of deed. Use additional sheets, if necessary) NOTE: A complete legal description of the property must be submitted. 4. ownership of lands immediately on either side of applicant's lakeshore property is as follows: Name Address Name Address 5. It is proposed to place a crib ft. long by ft. wide by -ft. deep and ft. lakeward from the shore as shown on the attached sketch. Crib will be constructed of 6. The normal depth of the water in the vicinity of the crib is ft. Depth of wat@r during periods of drawdown (for impoundments) is ft. 7. Show on an attached sketch the area of the lakebed on which it is proposed to place the fish crib, showing length, width, and depth of the crib on both plan and cross-section views. Show your property boundaries and the location of near- by piers, buoys, rafts, etc. Indicate how crib will be anchored to the lakebed to prevent its floating to the surface and show how crib location will be marked. Also describe or show by a sketch the highway route by-which the site may be reached by the inspector. Dated Signature of Owner of Described Lakeshore Property 46 LEAVE BLANK - DEPARTMNT USE ONLY ORDER APPROVING OR DENYING APPLICATION Your application for authority to place a fish crib on the bed of Lake, in County, is hereby: Approved as-applied for. 2. Approved as limited herewith: 3. Denied for the following reason: When application is approved the permit expires 12 months from date as indicated below. STATE OF WISCONSIN DEPARTMT OF NATURAL RESOURCES For the Secretary By District Director Date State of Wisconsin 47 APPLICATION FOR RIPRAP PERMIT Department of Natural Resources Section 30.12 (2) (d) Wis Stats. Form 3500-42 Rev. 10-77 Instructions: Complete items 1 through 8, sign, date and return to appropriate DNR District Headquarters (see attached map). Incomplete applications will not be processed and will be returned. 1. The applicant and riparian property owner herein is: Name Mail Address Telephone Fire No. or Address of Project Location Identification No. 2. Name of Water Body County 3. Location of Project: quarter of the quarter of section (east) township north, range (west), Town of Property Description: (Attach a copy of deed, lease, land contract, or other document. Use additional sheets,,-if.necessary.) NOTE: A complete legal description of the property must be submitted. 4. Ownership of lands immediately adjacent to applicant's property on both sides is as follows (if on a river, list owners of property downstream and, if applicable, across the stream): Name Address Name Address 5. It is proposed to place a -inch layer of --inch rock (or to cover an area feet in length (measured along the bank or shore) by feet up the bank, extending feet waterward, as shown on the attached sketch. 6. The depths of the water in the vicinity of the area involved are as follows: Normal depth of water 1 foot from bank or shoreline is inches. Normal depth of water at the point to which the proposed riprap layer will extend is inches. 7. (If on a stream) The width of the channel at normal flow is feet. The toe of the riprap will extend feet Into the water from the bank. The top of the riprap will be feet below) (even with) feet above) the top of the adjacent bank. 48 8. Show on an attached sketch the area of the bed and/or bank on which it is proposed to place the layer of riprap or similar material, showing length and width of the layer of material.* Include both plan and cross-section views. Show the slope at which riprap will be placed. Also describe or show by a sketch the highway route by which the site may be reached by the inspector. The location of the riprap must be clearly shown in relation to a readily identifiable and reasonably permanent object (lot or section corner, building corner, large tree, or other feature). Date Signature of Owner of Described Property LEAVE BLANK - DEPARTMENT USE ONLY ORDER APPROVING OR DENYING APPLICATION, Your application for authority to place a layer of riprap or similar material on the bed and/or bank of izi County, is hereby: 1. Approved as applied for. Approved as limited herewith: Denied for the following reason(s): When application is approved, the permit expires 12 months from date as indicated below. STATE OF WISCONSIN DEPARMMM OF NATURAL RESOURCES For the Secretary BY District Director 'By- Watqr Management Investigator Date 49 - Manual Code 3535.1 State of Wisconsin Department of Natural Resources SUBJECT: Application for Sand Blanket Permit Procedures for handling applications for permits to place a layer of sand or similar materialon lake beds under See. 30.12(2)(b), Wis. Stats., are as follows: Applicant* 1. Submits request to Department of Natural Resources. DNR Receiving Office 2. Sends request to appropriate district director. District Director 3. Sends Form 3500-1T, Application for Sand Blanket Permit, to applicant. Applicant 4. Completes items 1-8 of form, signs, dates and returns to district director. District Director 5. Arranges for inspection of proposed work site and comptetion o6 FoAm 3500-23, Inve6tigatoAA FoAm. 6. Completes Form 3500-1T, approving or denying application. Condition.6 oJ appxovat may xequite: u,6e o6 pea gAava in,6tAead o6 6and, paohibition o6 u6e o6 pta4tic UneA, %educed "ea, depth oJ coveAage, etc. T. Distributes completed Form 3500-IT as follows: a. Original retained in District Office. b. Copy to applicant, by mail, with letter of explanation, if needed. c. Copy to Water Regulation Section, &&%eau 06 WateA Regu&,tion and Zoning, Madison. d. Copy to Bureau of Environmental Impact, Madison. e. Copy to Area Supervisor. f. Other copies distributed as deemed necessary. *Applicant must be the owner of riparian lands adjacent to the proposed sand blanket. Section 30.72(2)(b), Wisconsin Statutes, refers only to the placing of sand on the bed of a lake. This is interpr ted to mean a pond held by a dam (in still water), as well as a lake. Placing ma rial on'the bed of a river or stream (running water) is not authorized by See. 30. (2)(b). ----------- ------------------------------ SECRETARY'S DIRECTIVE Distribution: --Date February 19, All Manual Holders sp S I n,e2r r ing e c *30* L9J _V5 Special Instructions: Rescinds and replaces M.C.'3535.1 (T-11-T2) (See 6cAipt 6o,% changea ds 51 State of Wisconsin Manual Code 3536.1 Department of Natural Resources SUBJECT: Riprap Shore Protection PURPOSE: To provide guidelines for implementing Section 30.12(2)(d), Wisconsin Statutes, created by Chapter 25C, Laws of 1975. Section 30.12(2)(d), Wisconsin Statutes, was enacted at the request of the Department to simplify the processing of permits for riprap and other shore protective works. The "riprap or other similar material" for the purposes of this section include rack or broken concrete without protruding rein- forcing rods, retaining walls constructed of concrete, concrete blocks, logs, wood planks, piling, etc.,or similar erosion control and shore protective works. These latter materials are included since the intent of this paragraph of the statutes is to pro- vide a rapid permitting procedure to allow a riparian owner to construct reasonable shore protec- tive works with a minimum of delay to protect the property from further erosion loss. A "General Permit" issued by the District Engineer, Ch icago District of the Corps of Engineers, allows authorization of similar shore protection and erosion control devices for the Lake Michigan shoreline within ten work days of receipt of an application. Therefore, inclusion of the above materials is necessary and further justified to be compatible and responsive to the general permit conditions of the U.S. Corps of Engineers. Specifically prohibited should be wood chunks, unsorted demolition material, brick, plaster, black- top and any other material that could produce.leachates or would violate provisions of NR 151. Although the new law states that riprap or other similar material may be placed on the bed and bank of navigable waters upon obtaining a permit from the Department, the property owner is not required to obtain a permit from the Department for such structures landward of the ordinary high watermark. However, the landowner should be advised that a local zoning permit may be required. Also, grading or removal of topsoil exceeding 10,000 square feet would require a 30.19(l)(c) permit. Section 30.12(2)(d) simplifies the issuance of permits by removing the noticing and hearing require- ments of the typical Section 30.12 permit. This section-, 30.12(2)(d), shou.1-d not be used where the purpose of the project is to make upland or to regularize the shoreline as proTid-ed by Section 30.11, Wisconsin Statutes, which would require a bulkhead line approval. The sudden lots of riparian land due to an unusual natural occurrence may be restored and protected without a permit within a reasonable time (one year). This section could be used to provide pro- tection for that restored land where the necessary structure is placed at or beyond the original ordinary high watermark. This section should not be used for restoring land loss over many years as land lost in an unusual natural occurrence which was not restored within a reasonable time. Issuance or denial of a permit under this section has been determined to be a type III action which does not require an EIS or EIA worksheet. General guidelines on placement of riprap, etc., should include the following: 1. Riprap or other material may intrude into.the waterway only as far as necessary to provide a stable foundation. A stable foundation usually exists orcan be developed at the intersection of the bank and the bed of the waterway. 2. In most cases, a riprap layer or structure 18 inches in thickness will provide adequate protec- tion. Increased thickness would be required on shorelines of Lakes Michigan, Superior and Winne- bago or where engineeringly justified by applicant. 3. The riprap and other shore protective works should conform to the existing shoreline. 4. The riprap or structure may not materially impair navigation, place a burden on adjoining ripar- ians, or be detrimental to the public interest (e.g. reduce the effective flood flow capacity of a stream, destroy essential spawning beds, impair water quality, destroy scenic beauty, etc.) - - - - - - - - - - - - - - - - - SECRETARY'S DIRECTIVE t2@ . . . . . . Jm2re) . . . . . . . ..I- - - - - -Distribution Date Novemberl7, 1976 Group E Manual Holders Special Instructions: ss 52 Manual Code 3536.1 The procedures for processing applications for permits to place riprap and other similar materials ander Section 30.12, Wisconsin Statutes. are as follows: Applicant (must be 1. Submits request to Department of Natural Resources. riparian owner or lessee) District Director 2. Sends Form 3500-42, Riprap Permit Application, to applicant. Appl4cant 3. Completes form, signs, dates and returns'to district director. District Director 4. Arranges for: inspection of proposed project site and completion of Form 3500-23, Field Investigation Report. Investigator must deter- mine appropriate dimensions of riprap and distances from recoverable landmarks and document using sketches and/or photos. S. Approves or denies application (Form 3SOO-42). Conditions of approval may require : removal of bank material or sloping prior to placement, use of different materials, reduced thickness or encroachment on bed of waterway, etc. S. Distributes permit as follows: a. Original to applicant. b. Copy retained in district office. c. Copy to Bureau of Water Regulation and Zoning. d. Copy to Bureau of Environmental Impact. e@ Copy to area supervisor. f. Copy to Army Corps of Engineers, District Office. g. Copy to County Zoning Administrator. h. Other copies as deemed.necessary. 7. Maintains surveillance over project whether approved or not and pro- cesses violations as per M.C. 3SO6.2. Secretary's Directive 2 Date November 17, 1976 53 State of Wisconsin Manual Code 3537.1 Department of Natural Resources SUBJECT: Applications for Dredging Section 30.20, Wis. Stats., requires a dredging contract for removalof material from the beds of natural lakes and outlying waters, and requires a permit for removal of material from the beds of streams, rivers, raised lakes and impoundments. Unless otherwise directed by the Secretary, procedures for handling applications under Section 30.20 are indicated below. Unusual dredging projects, or requests for dredging authority under Section 30.205, Wis. Stats., (zoned dredging), shall be referred to the Bureau of Water Regulation and Zoning for initial review and discussion prior to final approval by District Director. A dredging permit or contract is required for all waterway crossings involving the removal of material from the bed of a navigabl waterway. This includes any domestic corporation or cooperative organized to furnish telegraph or telephone service or transmit heat, power or electric current. (Section 30.20, being a specific statute, takes precedence over the exclusions cited in Section 182.017, Wis Stats.) This section would also ap[ply to the exploration and/or mining in or below the bed of any navigable water. Applicant 1. Submits requests to DNR. DNR Receiving Office 2. Sends requests to appropriate District Director. District Director 3. Sends Form 3500-19, Application for Authority to Remove Materials from the Bed of a Waterway, to applicant. Applicant 4. Completes application form, signs, dates, and returns to District Director. District Director 5. Sends copy of application to Bureaus of Water Regulation and Zoning and Environmental Impact. 6. Arranges for inspection of proposed work and spoil disposal sites and evaluates any environmental effects. Completes Form 3500-23, Investigators Form, and Form 1600-1, EIA Work Sheet. Public notice' and hearings are not requred under Sec. 30.20. However, if the District Director feels a hearing is necessary, or if a hearing is requested by the applicant, the procedure in M.C. 3506.1 and environmental impact directives will apply. (more) SECRETARY'S DIRECTIVE Distribution: Date March 19, 1975 All Manual Holders. Special Instructions: Rescinds and replaces M.C. 3537.1 (11-20-73) (See script for changes) 1w 54 Manual Code 3537.1 T. Informs County Zoning Administrator of proposed dredging project with requests for comments as appropriate, 8. Receives and reviews inspection report and environmental impact assessment worksheet. Processes EIA in accordance with M.C. 1606.1. 9. If denial of the request is appropriate, informs applicant in written form stating the reasons for denial. Signs "For the Secretary". 10. If a grant of the request is appropriate, sends contract (or permit) to applicant with instructions to: a. Sign contract; b. Provide bond; and c. Submit remittance in the amounts indicated in the contract when a contract is involved. Applicant 11. Signs contract, provides bond, and remits appropriate amounts as indicated in the contract when a contract is involved. District Director 12. Submits remittance to Bureau of Finance when a contract is involved. 13. Returns authority to applicant with instruction that authority is then in force (cc Bureau of Water Regulation and Zoning and County Zoning Administrator). 14. Instructs applicant to notify District Office 5 days before dredging project is to begin that the project will be commenced. Applicant 15. Performs project (progress reports are required for lengthy projects). 16. When project is completed, notifies District Office by affidavit that project is completed. District Director 17. Has follow-up inspection performed. 18. Informs applicant that the project has been satisfactorily completed and that the file is therefore, closed (cc bonding company, Bureau of Water Regulation and Zoning, and County Zoning Administrator). 19. Maintains surveillance over project whether approved or not and processes violations as per M.C. 3506.2. Secretary's Directive - 2 - Date March 19, 1975 Manual Code 3537.1 55 Under Section 30.20, Wisconsin Statutes, a dredging contract is issued for removal of bed material from the bed of any natural. lake. Ownership of a bed of a natural lake is in the State of Wisconsin and extends to the ordinary high water line. The .6tate 4eU.6 the bed matvLiaZ at the Aate o6 V a cubic yatd. A bond is required so that if the dredging is not done in accordance with terms of the contract, the Department can require the bonding company to complete the work according to that contract. For the dredging of a raised lake (lake or pond held by a dam) or for the removal of bed material from @. stream where the course it not changed, the Department issues a permit as the waters of a pond or lake held by a dam presumably flow overland which is in the ownership of the riparian. He will, therefore, be removing bed material which is owned by him; hence, the Department issues a permit for him to do so. No charge for the removal of material is made nor is any bond required. Dredgidg from harbors where a duly authorized harbor commission exists .is authorized by approval of plans pursuant with Section 30.31(2), Wis. Stats. Secretary's Directive 3-- DAte March 19-1975 57 - State of Wisconsin Manual Code 3551.1 Department fo Natural Resources SUBJECT: Floodplain Management REASON FOR CHANGE: Redelegates floodplain management responsibility The following guidance is provided pertaining to floodplain responsibilities of the Department: 1. Responsibilities. Where applicable, all decisions, permits, orders, land trans- actions or similar action must reflect standards for floodplain management (Section 87.30, Wisconsin Statutes, and NR-116, Wisconsin Administrative Code), shoreland standards (Section 144.26, Wisconsin Statutes, and NR 115, Wisconsin Administrative Code), and erosion hazards pursuant to Governor's Executive Order #67 dated November 26, 1973. The evaluation of existing or potential flood hazards is necessary for all Department sponsored projects and for all projects for which the Department has review, approval or permitting authority. 2. Proceduresi Information on floodplains, shoreland, and erosion problems for a particular project is available through the Floodplain-Shoreland Management Section of the Bureau of Water Regulation and Zoning or the appropriate district. In those areas where floodplain delineation is not available, the Floodplain- Shoreland Management Section may require certain field surveys before delineation can be generated. Bureaus, sections, and districts are encouraged to make their own flood effect evaluations if adequate expertise is available. The Floodplain- Shoreland Management Section will provide assistance, access to computer programs9 instructions and necessary training and review calculations done by others. 3. District Responsibilities. Coordination of district involvement in floodplain, shoreland,and erosion hazards shall be the responsibility of the diztr-ict dixectot (o,% hi,6 dezignated dtoodptain management cootdinatox). Careful coordination is required since floodplain management involves hydrological and hydraulic expertise' to collect necessary flood data, designate needed cross-sections, calculate flood flows and levels, evaluate flood hazards and effects, delineate floodplains and floodways, etc. The district, expedially environmental engineers and water management investigators, shall implement and reflect the requirements of the Floodplain-Shoreland Management Rules (NR 115 and NR 116). Proposed Chapters 30 and 31 projects shall be reviewed for their consistency with the rules. The district staff shall consider the potential floodplain, shoreland, and erosion problems of such projects as siting sewage treatment plants, water supply systems, sanitary landfills, developments, highways, industrial waste disposal and treat- ment facilities, etc. The evaluations and requests for flood data information, training sessions and assistance from the Floodplain-Shoreland Management Section-shall be coordinated with the diztxict dbtecto,% (0,% hi.6 daignated itoodptain management cooAdinato,%). - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SECRETARY'S DIRECTIVE Distribution: Date December 1, 1976 All Manual Holders Special Instructions: Rescindsand replaces M.C. 3551.1 (10-9-74) (See zcAipt.6ot change,6) ss 59 Appendix D: Selected Chapters from the Administrative Code NR 115 Wisconsin's Shoreland Management Program NR 116 Wisconsin's Flood Plain Management Program DEPARTMENT OF NATURAL RESOURCES 85 Chapter NR 116 WISCONSIN'S FLOOD PLA MANAGEMENTPROGRA NR 116.01 Purpose NR 116.12 Amendmends of official NR 116.02 Applicability floodway lines NR 116.03 Definitions NR 116.13 Uses in floodway areas NR 116.04 Severability NR 116.14 Uses in flood fringe areas NR 116.05 Adoption and upgrading of (outside of the floodway) NR 116.15 Nonconforming uses flood plain zoning ordinances NR 116.16 Flood proofing NR 116.06 Area to be regulated NR 116.07 Regional flood flow determi- NR 116.17 Flood control works nation NR 116.18 Procedures for changing flood NR 116.08 Water surface profile of the plain and floodway limits regional flood NR 116.19 Appointment and duties of NR 116.09 Data required to be shown on zoning administrator, zoning flood plain zoning Maps agency and board of NR 116.10 Conflicts between Water adjustment/appeals surface profile and flood plain NR 116.20 County, city and village re- zoning maps sponsibilities NR 116.11 Initial delineation of floodway NR 116.21 Permits, special exceptions lines (conditional uses), variances, appeals and amendments NR 116.22 Department duties Note: Chapter NR 116 as it existed an July 31, 1977 was repeated a new chapter NR 116 was createdeffective August 1, 1977. NR 116.01 Purpose. (1) The Wisconsin legislature in enacting chapter 614, laws of 1965, recognized that flood plain zoning is a necessary tool to protect human life, health and to minimize property damages and economic losses. Counties, cities and villages are re- quired by section 87.30, Wis. State., to adopt reasonable and effective flood plain zoning ordinances within their respective jurisdictions to regulate all flood plains where serious flood damange may occur. (2) The purpose of these rules is to provide a uniform basis for the preparation and implementation of sound flood plains to: all Wisconsin flood plains to: (a) Protect life, health and property; (b) Minimize expenditures of public monies for projects; (c) Minimize rescue and relief efforts, generally undertaken at the expense of the general public; (d) Minimize business interruptions; (e) Minimize damage to public facilities on the flood plains such as water mains, sewer lines, streets and bridges; (f) Minimize the occurrence of future flood blight area on flood plains; and (g) Discourage the victimization of unwary land and home buyers. History. Cc. Register. July. 1977. No. 259. eff. 8-1-77. Register, July, 1977, No. 259 Environmental Protection 86 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 87 NR 116.02 Applicability. The provisions of this chapter are ap- (11) FLOOD PLAIN. The flood plain in the land which has been or U ficable to flood plain management by counties. cities and villages. may be hereafter covered by flood water during the regional flood. nless otherwise specifically exempted by law, section 13.48(13). Wis. The flood plain includes the floodway and the flood fringe. State., requires that all state agencies obtain all necessary permits required by local zoning ordinances. (12) FLOOD PLAIN MANAGEMENT. Flood plain management involves History. Cir. Register, July, 1077, No. 269. off. 8-1-77. the full range of public policy and action for insuring wise use of flood plains. It includes everything from the collection and dissemination of NR 116.03 Derinitions. (1) Accicssony usz. An accessory use is any flood control information to actual acquisition of flood plain lands; facility, structure, building or use which is accessory or incidental to and the enactment and administration of codes, ordinances, and the principal use of a property, structure or building. statutes for land use in the flood plain. (2) CERTIFICATE OF COMPLIANCE. A certificate of compliance is (13) FLOOD PROOFING. Flood proofing involves any combination of issued to a property owner by a county, city or village and certifies structural provisions, changes, or adjustments to properties and struc- that the use of land or a building in the flood plain area is in tures subject to flooding. primarily for the purpose of reducing or conformance with the provisions of the. flood plain zoning ordinance. eliminating flood damage to roperties, water and sanitary facilities, structures and contents of buiTIdings in flood hazard aress. (3) CHANNEL. A channel is a natural or artificial watercourse with me and conduct the normal flow of definite bed and banks to conr (14) FLOOD PROTECTION ELEVATION. The flood protection elevation water. shall correspond to a point 2 feet of freaboard above the water surface rofile associated with the regional flood and the official floodway (4) DEPARTMENT. Department refers to 'the state of Wisconsin Fines. Also see: Preeboard. department of natural resources. (15) FLooDwAy. The floodway is the channel of a river or stream (5) ENCROACHuRNr. An encroachment is any fill, structure, build- and those ortions of the flood plain adjoining the channel required to- ing, use, accessory use or development in the floodway. carry and Nischarge the flood water or flood flows associated with the (6) ENCROACHMENT/FLOODWAY LINE9. EnCrOachment/floo dway lines regional flood. are limits of obstruction to flood flows. These lines are on both aides (16) FRERBOARD. Freeboard is a factor of safety usually expressed in of and generally parallel to the river or stream. The lines are es- terms of a certain amount of feet above a calculated flood level. tablished by assuming that the area landward (outside) of the Freeboard compensates for the many unknown factors that contribute encroachment/floodway lines will be ultimately developed in such a to flood heighu greater than the height calculated. These unknown way that it will not be available to convey flood flows. factors include, but are not limited to, ice jams, debris accumulation. (7) EQUAL DEGREE OF HYDRAULIC ENCROACHMENT. The effect of any wave action, obstruction of bridge openings and floodways, the effects encroachment into the floodway must be computed by assuming an of urbanization on the hydrology of the watershed, loss of flood equal degree of hydraulic encroachment on the other side of a river or storage areas.due to development and aggradation of the river or stream for a hydraulic reach. This computation assures that troperty stream bed. owners up, down or across the river or stream will have t a same (17) HIGH FLOOD DAMAGE POTENTIAL. High flood damage potential is rights of hydraulic encroachment. Encroachments are analyzed on the associated with any danger to life or health and any significant basis of the effect upon hydraulic conveyance. not upon the distance economic loss to a structure or building or its contents. the encroachment extends into the floodway. Also see: Hydraulic Reach. (18) HYDRAULIC FLOODWAY LINEs. Hydraulic floodway lines shall .1 delineate the channel of the river or stream and thpae portions of the (8) FLOOD. A general and temporary condition of partial or com- adjoining flood plains which are reasonably required to carry and plete inundation of Donnelly dry land areas caused by the overflow or discharge the regional flood flow without any measurable increase in rise of rivers, streams or lakes. flood heights. (9) FLooD FREQUENCY. The term flood frequency is a means of (19) HYDRAULIC REACH. A hydraulic reach along a river or stream is expressing the probability of flood occurrences and is generally de- that portion of the river or stream extending from one significant termined from statistical analyses. The frequency of a particular flood change in the hydraulic character of the river or stream to the next flow is usually expressed as occurring. on the average, once in a significant change. These changes are usually associated with breaks specified number of years.. Any particular flood flow could, however, in the slope of the water surface profile, and may be caused by Occur more frequently than once in any given year. bridges, dams, expansion and contraction of the water flow, and (10) FLooo FRINGE. The flood fringe is that portion of the flood changes in stream bed slope or vegetation. plain outside of the floodway, which is covered by flood waters during (20) LEvEE. A levee is a continuous dike or embankment of earth the regional flood; it is generally associated with standing@ water rather constructed parallel to a river or stream to prevent flooding of certain than rapidly flowing water. areas of land. Register. July, 1977, No. 259 Register, July, 1977. No. 259 Environmental Protection Environmental Protecti.n 88 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 89 (30) WATERSHED. A watershed is a region or area contributing (21) NONCONFORMING USE. A nonconforming use is an existing lawful use of a structure. building or accessory use which is not in ultimately to the water supply of a particular watercourse or body of conformity with the provisions of the flood plain zoning ordinance for water. the area of the flood plain which it occupies. (31) WATER SURFACE PROFILE. The water surface profile is a (22) OFFICIAL FLOODWAY LINES. Official floodway lines are those graphical representation of the height of the water surface throughout lines which have been adopted by the county, city or village, approved a county, city or village based upon a certain flow passing through the by the department, and which are shown on the official flood plain river or stream. A water surface profile based upon flows occurring zoning maps and used for regulatory purposes. during a regional flood is used in regulating the flood plain areas. (23) OPEN spAcit uss. Open space uses are those uses having a (32) WELL. A well is an excavation or opening in the ground made by digging, boring, drilling, driving or other methods, for the purpose relatively low flood damage potential, such as those uses associated of obtaining ground water. with agriculture, recreation, parking, storage yards, or certain sand and gravel operations. History-. Cr. Register. July, 1977, No. 259. off. 8-1-77. (24) REGIONAL FLOOD. The regional flood is a flood determined to NR 116.04 Severability. Should any section, paraI raph, phrase, Sentence or clause of this chapter be declared inva id or uncon- be representative of large floods known to have generally occurred in stitutional for any reason, the remainder of this chapter shall not be Wisconsin and which may be expected to occur on a particular stream affected thereby. because of like physical characteristics. The regional flpod is based upon a statistical analysis of streamflow records available for the Historys Cr. Register. July. 1977. No. 259, eff. 8.1-77. watershed and/or an analysis of rainfall and runoff characteristics in NR 116.05 Adoption and upgrading of flood plain zoning or- the eneral watershed region. The flood frequency of the regional dinanceii. (1) ADOPTION. Counties, cities and villages shall adopt, and floof is once in every 100 years; this means that in any given year continue to administer and enforce, reasonable flood plain zoning there is a 1% chance that the regional flood may occur. During a ordinances for all streams and flood plains within their respective typical 30-year mortgage period, the regional flood has a 26% chance jurisdictions. These ordinances shall meet or exceed the standards in of occurring. this chapter. (25) SIQZCIAL ExcErriON (CONDITIONAL USES). A special exception (2) INCLUSION IN LOCAL REGULATIONS, CODES AND PROGRAMS. Where (also called a conditional use) is a use which is permitted by the flood necessary to insure the effectiveness of flood plain zoning ordinances, plain zoning ordinance rovided certain conditions specified in the the standards in this chapter shall be included in subdivision reg- ordinance are met ans a permit is granted by the board of ulations, building and sanitary codes, flood insurance regulations, and adjustment/appeals or, where appropriate, the zoning committee. other related programs. (26) STANDARD PROJECT FLOOD. The standard project flood is a (3) SUBSTITUTION. Where the department finds that one or more of hypothetical flood, estimated by the corps of engineers, representing the following regulations, codes or programs will accomplish the the flood runoff volume and peak discharge that may be expected purpose of section NR 116.01. these regulations, codes or programs from the most severe combination of meteorological and hydrologic may be substituted in lieu of all or portions of flood plain zoning conditions that are considered reasonably characteristic of the ordinances: geographical region involved, excluding extremely rare combinations. (a) Acquisition of flooding easements to insure open space uses in (27) STRUCTURE. A Structure is any man-made object with form, flood plain areas. shape and utility, either permanently or temporarily attached to or b) Flood warning systems. placed upon the iround, river bed, stream bed or lakebed. (c) Building codes. (28) UNNECESSARY HARDSHIP. Unnecessary hardship is any unique and extreme inability to conform to the provisions of a flood plain (d) Subdivision regulations. zoning ordinance due to physical factors which are not solely related to economic gain or loss. Unnecessary hardship is present only where, (a) Sanitary codes. in the absence of a variance, no feasible use can be made of the (f) Zoning or purchase of the entire flood plain to permit only open property. space uses. (29) VARIANCE. A variance authorizes the construction or main- (4) UPGRADING ORDINANCES. Within 6 months from the time any of tenance of a building or structure in a manner which is inconsistent the information listed below is available, local units of government with dimensional standards contained in the flood plain zoning or- shall upgrade flood plain zoning ordinances, using the amendment dinance. A variance can only be granted by the board of procedure in section NR 116.21. to reflect current information such as adjustment/appeals. A variance shall not permit a use of property the following: otherwise prohibited by the flood plain zoning ordinance; it may permit deviations from dimensional standards. (a) Flood data. Register, July, 1977. No. 259 Register, July. 1977. No. 259 Environmental Protection Environmental Protection 90 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 91 (b) Flood plain management statutes. basin to critical locations within the municipal limits, when any o(the m following conditions exist in the watershed: (c) Flood plain management rules. (a) The watershed is or has been rapidly urbanizing an that runoff (d) Flood plain management case law. during storms is significantly increased relative to conditions existing during that period of available record. This method shall apply when (e) Hydrologic data. Si ficant increases in urbanization occur. One example of significant (1) Improved technical information and methods. urcinization is where more than 20% of the watershed has been urbanized or where the urbanization of the watershed has exceeded a HistoM Cr. Resister. July. 1977. No. 259. off. 8-1-71. 10% growth rate in any 10-year period. NR 116.06 Areas to be regulated. Counties, cities and villages (b) Dams upstream of the study area affect the validity or gaging shall develop flood plain zonhL maps, reflecting the best available records on the river or stream. date, which show the areas to) regulated. They shall also develop flood plain zoninq ordinances to define proper uses in those regulated (c) Flood plain developrAent upstream of the study area fins areas. These flood plain maps and zoning ordinances shall regulate all significantly altered storage capacity of the river or stream so as to flood plains, and the minimum limits (or regulatory purposes shall be affect the validity of gaging records. all those areas covered by waters during the regional Hood. (3) CASIR-SY-CASK ANALYSIS. Where comprehensive studies do not 11169oryt Cc. Resister. July, 1977. No. 259, off. 8-1-77. exist for a given river or stream, a case-by-case analysis is required for regional flood flow discharge determinations. This case-by-case anal- NR 116.07 Regional flood flow determination. The method of ysis on proposed developments in the flood plain areas shall he made determining the discharge for the regional flood shall be based upon using several acceptable techniques, which include at least one of the the guidelines contained herein. following: (1) COMPRXIIENSIVE STUDINS - QZNZRAL RULIL Comprehensive studies (a) When adequate gaging data exists, the applicable technique to determine the regional flood flow discharge for a significant seg- described in subsection (1) or subsection (2) shall be used. ment of a river or stream shall generally use the log-Pearson Type III distribution method as described in Bulletin 817 of the Hydrology (h) When inadequate taginp data exists, acceptable hydrologic I Committee, U.S. Water Resources Council, entitled "Guidelines For techniques shall be used. w ich include at least one of the following; a% Determining Flood Flow Frequency", March 1976. The technique 1. The current USGS empirical equations, developed from regrea- 4- described in Bulletin #17 shall be Modified under the following sion analysis of stream gaging data, using a positive upper confidence circumstances: interval equal to one standard error of estimate. (See USGS Pub- lication entitled "Estimating Magnitude and Frequency of Floods in (a) When determining skew, a log-normal analysis (zero skew) Wisconsin", by Conger.) shall be used instead of the generalized skew map found in Bulletin # 17. 2. Current USDA sail conservation service techniques, such as (b) When less than 100 years of adequate data is available for the found in Section 4. SCS National Engineering Handbook (NE,114), entitled "Hydrology", SCS, U.S.D.A., Technical Release No. 55 applicable watershed gaiing station. regional flood flow frequency (TR55), entitled "Urban H drology For Small Watersheds". En- discharge shall be determ ned by more than one method In accordance gineering Division, SCS, U .S.9.7. January, 1975. with the chart on page 17 of said Bulletin #17. (c) Drainage area comparisons shall be used only in combination (c) Where the discharFe events of record can be separated into with one of the above techniques. those occurriiii due to rainfall and those due to melting snow, those events shall he analyzed separately and separate frequency curves (4) ADDITIONAL REQUIREMENTS - RAPIDLY URBANIZING WATERSHEDS. In developed. These curves Shall then be combined to determine the watersheds where significant future development is projected. the critical flood flow frequency discharge. county, city or village may require that computations for r 10 11 flood flow discharges shall reflect increased runoff from flu an- (d) Outliers are defined in Bulletin #17. The technique described in ticipated future development. These computations shall be infide Bulletin #17 eliminates low outliers. Computations which do not using one of the following techniques: eliminate low outliers shall be made to determine flood flow frequency discharges. These computations shall be compared to those which (a) A synthetic hydrograph based uron projected watershed de- eliminate low outliers, and then shall be submitted to the department velopment shall be produced at various ocations, and then combined for its determination of reasonable flood flow frequency discharge. and routed through the basin to critical locations within the study (2) COMPRICHENSIVII STUDWS - EXCRPTIONAL TECHNIQUU. COMP!8- limits. hensive studies to determine regional flood flow discharges for sig- (h) A mathematical model shall be developed to determine the nificant segments of a.- river or stream shall be computed using effects of various projected developments in the watershed tin the synthetic hydrograpbs, which are combined and routed through the regional flood flow discharge. LOCal units of govemment may project Resister. July, 1977, No. 259 11.gWer..haly, 1977. N... 261.b Environsusuisil Protection lusivironmental Pr4st-liAbli 92 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 93 what percentage of watershed development they will allow and shall determine regional flood flow discharges based upon that data. Where watersheds contain more than one local unit of government, agree- I roV eggs I Is a 44*0. 133A N. "11.A312 ments between those local units of government may be necessary to restrict future watershed development. In order to insure that future -fill, flood flows do not exceed the regional flood flow discharges used in ----- -1 1 regulations by those local units of government, future watershed . . . . .----- development may be restricted to a certain percentage of the watershed. (5) APPROVAL OF OTHER METHODS OF COMPUTATION. In special --- _rr - - - - ----- -- instances the department may use or authorize the use of other acceptable hydrologic methods for determining regional flood flow discharges. (6) The document referred to in Subsection (1) is available for inspection at the U.S. Water Resources Council, 2120 L Street, Northwest, Suite 800, Washington, D.C. 20037; it may be purchased from the Superintendent of Documents, U.S. Government Printing kL Office, Washington, D.C. 20402 (mention title and stock number 0 052-046-00031-2). The document referred to in Subsection (3) (b) I is available for inspection at the Geological Survey - Water Resource 0 W Z Division, U.S. Department of the Interior, at the following four > locations: 1815 University Avenue, Madison, Wisconsin 53706; 1 East LU Street, Merrill, Wisconsin 54452; 600 Riverview Avenue, Waukesha, cc U) IT 1.1 H Eau Claire Street, Rice Lake, Wisconsin 54868; 1029 'h East Main 9 0 Wisconsin 53186. The documents referred to in Subsection (3) (b)2 are available for inspection at the Soil Conservation Service, U.S. LL a Department of Agriculture, 4601 Hammersley Road, Madison, Wis- _7 77 7- Z consin 53711; they may be purchased from the National Technical LIJ It formation Service, U.S. Department of Commerce, 5285 Port Royal In Road, Springfield, Virginia 22151 (mention title and appropriate accession number: NEH4 = PB244463/AS; TR56 = PB244531/AS). X (7) Copies of the documents referred to in subsections (1), (3) (b) I and (3) (b) 2 are also available for inspection in the following offices: (a) The Department of Natural Resources, 4610 University Avenue, Madison, Wisconsin; F (b) The Office of the Secretary of State, Capitol, Madison, Wis- consin; (c) The Office of the Revisor of Statutes, Capitol, Madison, Will- consin. lip 0 History! Cr. Register. July, t977. No. 250, off. 8-1-77. NR 116.08 Water surface profile of the regional flood. After computation of the regional flood flow discharge, using the methods contained in section NR 116.07, a water surface profile based upon that data shall be developed showing the elevations of the regional -V 69611 ISM JA0QV Liss Ni k0JAVA111 flood along the Streams and flood plains in the county, city or village. Ile shall be used to develop the flood plain The elevations on this pror zoning maps. History: Cr. Register, July, 1977, No. 259, off. 8- 1-77. Resifiter.j ly,1977.Ntb.269 Register, July. 1977, No. 259 Environmental Prtitection Environmental Protection WISCONSIN ADMINISTRATIVE CODE plain (that area covered during the regional flood). (1) Where adequate Engineering Data Exists. Where adequate engineering data exists the maps shall show the following. (a) The floodway area (that area necessary to pass the regional flood); (b) The flood fringe area (that area outside the floodway but still covered by the regional flood); (c) The regional flood elevation, consistent with the water surface profile of the regional flood, should be clearly lettered at identifiable positions on the official flood plain zoning maps. If for any reason that elevation is not shown on the maps, the profile shall be attached to and made part of said maps and (d) Where technical information is available to ascertain the mag- nitude of floods larger then the regional flood (such as the standard project flood). the flood plain limits of these large floods way be reflected on the official flood plain zoning maps for public infor- mation purposes. (2) Where Adequate Engineering Data Not Exist. Where adequate engineering data does not exist, maps based upon historical floods, flood prone area maps, flood hazard boundary maps, aerial photos or detailed soils maps may initially serve as a basia for flood plain delineation, provided that: (a) The associated text of the zoning ordinance provides for a procedure similar to sections NR 116.20(2) and NR 116.21(3) to ascertain the effects of the proposed construction of every project upon flood flows and the flood protection elevation; and (b) The local unit of government has initiated a program to ultimately obtain an engineering study for regional flood data in History: Cr. Register, July, 1977, No 259, eff. 8-1-77. Register, July, 1977, No. 259 Envionmental Protection 7 94-2 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 94-3 NR 116.10 Conflicts between water surface profiles and flood the state law. In these cases, only the ofriciai noodway lines shall lie plain zoning maps. Accepted engineering principles and other tech- shown on the flood plain zoning maps; the current hydraulic floodway n,iques shall govern the delineation of the flood plain limits on the lines, which reflect the water surface profile used for regulation, shall official flood plain zoning maps. Where a conflict exists between the be kept on file by the' county, city or village. flood plain limits illustrated on the maps and the actual field con- History: Cr. Register, July. 1977. Nib. 259, off. 8-1-77. ditions, the elevations from the water surface profile as related to actual field elevations shall be the governing factor in locating reg- NR 116.12 Amendments of official floodway lines. (1) INITIAL ulatory flood plain limits. DETERMINATIONS. Prior to amending official floodway lines, for whatever Historir Cr. Register, July, 1977. No. 259, off. 8-1-77. 16 reason, a county, city or village shall: Nit 116.11 Initial delineation of floodway lines. (1) GENERAL (a) Assure that the provisions of section NR 116.11 (2) (h) are met-, RULE-HYDRAULIC FLOODWAY LINES. As a general rule, the official floodway 1b) Require adequate technical data from the applicant and submit line shown on the flood plain zoning maps shall be the hydraulic such data to the department for review and concurrence in the effect floodway lines. These hydraulic floodway lines shall be determined by of the proposed amendment on the height of the regional flood; and hydraulic and engineering Studies based upon existing conditions unless the county, city or village elects to require that regional flood (c) Assure that the proposed amendments meet -the purpose of flow computations shall be based upon projected future development section NR 116.01. (see section NR 116.07(4)). These hydraulic floodway lines shall reflect the outer limits of effective flow in a river or stream. (2) AMENDMENT PROCESS. Upon completion of the steps in subsection (1) above, the county, city or village shall meet all ap- (2) RivERWARD MODIFICATION OF HYDRAULIC FLOODWAY LINES TO plicable legal requirements for amending its water surface profiles, DELINEATE OFFICIAL FLOODWAY LINES. (a) In some instances, the official flood plain zoning maps, and zoning ordinances. floodway lines may be delineated riverward from the hydraulic floodway lines, but only to accommodate existing development (not a (3) SUBMISSION TO THE DEPARTMENT FOR APPROVAL. If the county, single use), comprehensive community plans, or flood protection city or village amends its official floodway lines, it shall also amend its facilities such as levees. water surface profiles, flood plain zoning maps and flood plain zoning ordinances and submit these amendments to the department for (b) The provisions herein shall apply to the delineation o( official roval pursuant to section NR 116.21(6). floodway lines. app 1. Any increase equal to or greater than 0.1 foot (3 centimeters) in History: Cr. Register, July, 1977. No. 259. off. 8-1-77. 14 the height of the regional flood due to the delineation- of the official NR 116.13 Uses in floodway areas. (1) PROHIBITED USES. The floodway lines riverward from the hydraulic floodway lines must be following uses are generally prohibited in floodway areas: Any fill, approved by the department prior to becoming effective. The de- deposit, obstruction, excavation, storage of materials, or structure partment may approve -the increase, provided: which, acting alone or in combination with existing or future similar works, will cause an increase equal to or greater than 0.1 foot (3 cm.) a. Appropriate legal arrangements have been made with all affected in the height of the regional flood or will affect the existing drainage local units of government and all property owners for any increased courses or facilities. Said increase shall be calculated using an equal flood elevations on those properties. degree of hydraulic encroachment from the hydraulic floodway lines b. All such affected local units of government shall amend their for a hydraulic reach on both sides of a river or stream. Increases water surface-profiles, flood plain zoning maps, and zoning ordinances equal to or grt;oter than 0.1 foot (3 cm.) may be permitted, but only if to reflect the increased flood elevations. amendments are made to the official floodway lines, water surface 4 profile, flood plain zoning maps and flood plain zoning ordinances. All 2. The effects of delineating the official floodway lines riverward Stich amendments shall meet the provisions of sections NR 116.12 and from the hydraulic floodway lines: NR 116.21(6). Notwithstanding any of the above language, the fol- lowing uses are always prohibited in floodway areas: a. Shall be calculated using an equal degree of hydraulic encroach- .14 nient from the hydraulic floodway lines for a hydraulic reach on both (a) Any structures that are: sides of a river or stream; and 1. Designed for human habitation; or b. Shall be determined by hydraulic and engineering studies which 2. Associated with high flood damage potential; or are calculated to the nearest 0.1 foot (3 centimeters). (3) LANDWARD MODIFICATIONS OF HYDRAULIC FLOODWAY LINES TO 3. Not associated with permanent open apace uses. DZLINATIC OFFICIAL FLOODWAY LINES. In some instances the official (b) Any storage of materials that are buoyant, flammable, floodway lines may be delineated landward from the hydraulic explosive, or injurious to human, animal, plant, fish or other aquatic floodway lines to be consistent with other local codes, ordinances, and life. Register, July, 1977, No. 259 Regi8ter,July, 1977, No.259 Environmental Protection Frivironinental Proier4ion 94-4 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 94-6 (c) Any uses which are not In harmony with. or which may be 3. The campground complies with all applicable local and state laws detrimental to, the uses permitted in the adjoining districts. and regulations, including those of the department of health and (d) Any on-aite sewage disposal system, whether public or private, social services; except portable latrines that are removed during flooding. or systems 4. The campground shall have signs at all entrances warning of the associated with public recreational areas that meet the applicable flood hazard involved; provisions of local zoning ordinances and Wis. Adm. Code section H 5. Only mobile recreational vehicles with self-contained holding 62.20. tanks or easily removable tents are allowable. No other habitable (a) Any wells, whether public or private, which are used to obtain structures or buildings are permitted; water for ultimate human consumption. 16. No roads are filled more than 0.5 foot (15 cm.) above the natural (f) Any solid waste disposal site, whether public or private. ground elevation; (2) Piciamirmi) 'usEs. Counties, cities and villages, using the ap- 7. On-site sewage disposal systems may be permitted provided they propriate procedure described in section NR 116.21, way issue per- meet the.applicable provisions of Wis. Adm. Code section H 62.20 mits allowing the uses In floodway areas described below. but only if (this is an exception to section NR 116.13 (1) (d)). the effects of such uses are consistent with all of the standards 8. Litter collection facilities shall be placed at or flood proofed to contained in subsection (1) above. the flood protection elevation or be removed during flooding. ' (a) Open space uses having a relatively low flood damage potential. (d) Uses permitted by the department pursuant to chapters 30 and such as those uses associated with agriculture. recreation, parking, 31. Wis. Stata., provided that the necessary permits and amendments storage yards, or certain iiand and gravel operations. are granted by the county, city or village to the official noodway lines, water surface profiles, flood plain zoning maps and flood plain zoning (b) Certain structures which are accessory to permitted open apace ordinances. uses or historical areas, if the structures meet all of the following criteria: (e) Public utilities, streets and bridges provided that: 1. Are not designed for human habitation; 1. Adequate flood proofing measures are provided to the flood protection elevation; 2. Have a low flood damage potential; 2. Construction shall not cause any increase equal to or greater than 3. Are to be constructed and placed on the building site so as to 0.1 foot (3 cm.) in the height of the regional flood as reflected in the offer minimum obstruction to the flow of flood waters. Whenever water surface profile based upon existing conditions, except that 00 possible. structures will be constructed with the longitudinal axis reasonable increases shall he approved if the conditions of section NR paralle[7 to the direction of flow of flood waters, and will be placed 116.11 (2) (b) are met; and with their longitudinal axes approximately on the same line as those 3. The county. city or village amends its official floodway lines, of adjoining structures; water surface profiles, flood plain zoning maps and flood plain zoning 4. Are firmly anchored to prevent them from floating away and ordinances to reflect any changes resulting from such construction in restricting bridge openings or other restricted sections of the stream accordance with the provisions of sections NR 116.12 and NR or river; and 116.21(6). 5. All service facilities, such a& electrical and heating equipment, History: Cr. Register. July. 1977. No. 259. off. 8-1-77. must be at or' above the flood protection elevation for the particular Nit 116.14 Uses in flood fringe areas (outside of the floodway). area. (1) GENERAL. (a) Counties cities and villages, using the appropriate procedure described in section NR 116.21, may Issue permits allowing (c) Campgrounds, provided all of the following criteria are met and uses in flood fringe areas which are compatible with the criteria in approval is granted by the department: this section. 1. The character of the river system and the elevation of all portions MAII flood fringe developments shall be com atible with local Jans. fit the absence of formal pans. development of the campground are sucit that 72 hours warning of an approaching comprehensive j, F, flood can be given to all persons using that campground, shall he compatible with the uses permitted in adjoining districts. 2. -An adequate flood warning system is in existence which will (c) Flood fringe developments may be permitted only when such provide for proper notice to all persons in the cam ground and make developments do lint cause any increase equal to or greater than 0.1 evacuation mandatory. Such a system shall invSlve an annual re- foot (3 cm.) in (fie height of the regional flood of any tributaries to newable written agreement between the weather bureau or corps of the main stream, drainage ditches, or any other drainage facilities or engineers, and the county sheriff or city police which shall specify a systems. increases greater than 0.1 foot (3 cm.) may be permitted. flood elevation at which evacuation shall occur; but only if amentiments are made to the affected official floodway Register, July. 1977, No. 269 Regiatir.july, 1977. No. 259 Envild.nutental Protection unviroutnental Prwetti.n 94-6 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 94-7 lines, water surface profiles, flood plain zoning maps and flood plain (5) MANUFACTURING AND INDUSTRIAL USES. Any manufacturing or zoning ordinances in accordance with the provisions of sections Nit industrial structure or building which is to be erected. constructed, 116.12 and NR 116.21(6). reconstructed, altered or moved into the flood fringe area shall be protected to the flood protection elevation utilizing rill, levees, (d) Flood fringe developments may be permitted only when such floodwalls adequate flood proofing measures or any combination developments di) not materially affect the storage capacity of the thereof. Bn streams, or rivers having prot acted flood durations. flood plains, based upon an equal degree of hydrologic encroachment greater protection may be required to minimize interference with (volume of storage area that is lost), particularly in flood plain areas normal pliant operations. A lesser degree of protection, compatible upstream from urban areas. For the purposes of this subsection, with these criteria and the criteria in subsection (4) above, may be 1. materially" is defined as any increase in the discharge of the regional permissible for storage yards, parking lots and other auxiliary uses. flood which causes a rise in the water surface profile of 0.1 foot (3 cm.). (6) STORAGE OF MATERIALS. Storage of any materials which are buoyant, flammable, or explosive, or which in times of flooding could (2) RESIDENTIAL USES. (a) Any structure or building used for be injurious to property, water quality, or human, animal, plant, fish human habitation (seasonal or permanent), which is to be erected, or aquatic life, shall be either flood proofed to or placed at or above constructed, reconstructed, altered, or moved into the flood fringe the flood protection elevation. Adequate measures shall he taken to area shall be placed on rill, with the finished surface of the first floor assure that said materials will not enter the river or stream during at or above the flood protection elevation. If any such structure or flooding. building has a basement, it shall be flood proofed in accordance with (7) PUBLIC UTILITIES, sTREETs AND BRIDGES. (a) When failure or section NR 116.16. Any community that is eligible for the federaf interruption of public facilities would result in danger to the public flood insurance program must comply with the HUD standards which health or safety or where such facilities are essential to the orderly currently do not allow basements in flood plain areas. An exception to functioning of the area, adequate flood proofing measures shall be that basement requirement may be granted by HUD, but only on a provided to the flood protection elevation; a lesser degree of community-by-community basis. protection may be provided for minor or auxiliary roads or utilities (b) Fill elevation shall: when these conditions do not exist. 1. Be one foot above the regional flood profile elevation, which is N Public utilities, streets and bridges on the flood fringe should based upon the official floodway lines; be designed to be compatible with the local comprehensive flood plain development plans. ON 2. Extend at such elevation at least 15 feet beyond the limits of any structure or building erected thereon; and (8) SEWAGE sysmzms. All on-site sewage disposal systems shall meet the applicable provisions of the local zoning ordinances and Wis. 3. Be contiguous to lands outside the flood plain where the depth Adm. Code section H 62.20 and chapter H 65. and duration of flood waters are sufficient to cause rescue and relief (9) WELLS. All wells, whether public or private, shall be flood problems. proofed to the flood protection elevation and shall meet the applicable (c) Where existing streets or sewer lines are at elevations which provisions of Wis. Adm. Code chapters NR ill and NR 112. make compliance with these provisions impractical, the department may authorize the use of other flood_proofing measures oi methods in (10) SOLID WASTE DISPOSAL SITES. All solid waste disposal sites, accordance with section NR 116.16. The structure or building shall be whether public or private, are prohibited in flood fringe areas. flood proofed to the flood protection elevation. (11) DEPOSITION OF MATERIAm. Any deposition of materials for any (3) ACCESSORY USES. An accessory structure (not connected to a purpose may be permitted only it the provisions of this section are principal structure) shall meet the applicable provisions of section 6 met. NR 116.13 (2) (b) 1., 2., 4. and 5. A lesser degree of protection, com- niatory. Cr. Register, July. 1077, No. 259, aff. 8-1-77. patible with these criteria and the criteria in subsection (4) below, may be permissible for any-such accessory structure. NR 116.15 Nonconforming uses. (1) GENERAL. Insofar as the standards in this section are not inconsistent with the provisions of (4) COMMERCIAL USES. -Any commercial structure or building which sections 59.97 (10) and 62-23 (7) (h), Wis. Stats., they shall apply to all is to be erected, constructed, reconstructed, filtered or moved into the nonconforming uses. The existing lawful use of a-structure or building flood fringe area shall meet the requirements of subsections (2) (a) or its accessory use which is not in conformity with the provisions of a and (b) above. Certain yards, parking lots and other accessory land flood plain zoning ordinance may be continued subject to the fol- uses may be at lower elevations. However, no such area in general use lowing conditions: by the public shall be inundated to a depth greater than 2 feet or subjected to flood velocities greater than 4 feet per second upon the (a) No modifications or additions to a nonconforming use shall be occurrence of the regional flood. Depths greater than 2 feet may be permitted unless they are made in conformity with the provisions of permitted by the department provided an adequate warning system this section. For the purposes of this section. the words exists to protect life and property. 4.modirication" and "addition" shall include, but not be limited to, P*gister. July. 1977. No. 259 llegiater, July. 1977. No. 259 Environmental Protection EnAronmental Protection 94-8 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 94-9 any alteration, addition, modification, rebuilding or replacement of Any replacement, repair or maintenance of an on-site sewage disposal any such existing structure or accessory use. Ordinary maintenance tem in a floodway area shall meet the applicable provisions of the ood plain zoning ord repairs are not considered structural repairs, modifications or ad By& ditions; such ordinary maintenance repairs include internal and inance and Wis. Adm. Code section H 62.20. external painting, decorating, paneling and the replacement of doors. (c) No new well or modifications to an existing well, used to obtain windows and other nonstructural components; and water for ultimate human consumption shall be allowed in a floodwaY area. Any replacement, repair or maintenance of a well in a floodwaY (b) If a nonconforming use is discontihued for 12 consecutive area shall meet the applicable rovisions of the flood plain zoning months, it is no longer permitted and any future use of the structure ordinance and Wis. Adm. Code c9apters NR III and NR 112. or building shall conform with the appropriate provisions of the flood plain zoning ordinance for floodway and flood fringe areas. (4) FLOOD FRINGE AREAS. (a) No modifications or additions to any existing structure or building in the flood fringe area Shall be per- (2) COUNTY, CITY AND VILLAGE RESPONSIBILITIES. (a) County, city mitted unless such modifications and additions comply with the and village flood plain zoning ordinances shall re5ulate nonconforming applicable regulations for that particular use in flood fringe areas as uses in a manner consistent with this section an the applicable state contained in the local ordinances. statutes. These regulaVons shall apply to the modification or addition (b) Where compliance with the provisions of paragraph (a) above of any structure or to the use of any structure or premises which was essary hardship, and only where the structure lawful before the passage of the flood plain zoning ordinance or any would result in unnec amendment thereto. will not be either used for human habitation or be associated with a high flood damage potential, the county. city or village may grant a (b) As requests are received for modifications or additions to variance from those provisions. using the criteria listed below. Mod- nonconforming structures in the floodway, counties, cities and villages ificatione or additions to structures or buildings which are protected shall develop a list of those nonconforming structures, their assessed to elevations lower than the floM protection elevation may be per- value and a list of the cost of those activities associated with changes mitted if- to those structures enumerated in section NR 116.15 (3) (a). 1. Human lives are not endangered; (3) FLOODWAY AREAS. (a) No modifications or additions shall he 2. Public facilities, such as water or sewer, are not to be installed; allowed to any existing structures which are not in compliance with permitted floodway standards or uses. unless Such modifications or 3. Flood depths will not exceed 4 feet; I additions have been granted by permit, special exception (conditional 4. Flood velocities will not exceed 2 feet per second; and 14 use) or variance and meet all of the following criteria: C) 1. The modifications or additions to a structure will not increase the 5. The structure will not be used for storage of materials described I amount of obstruction to flood flows; in section NR 116-14 (6). 2. Any addition to a structure shall be flood proofed, by'meaus (c) Any new, addition to, replacement, repair or maintenance of an other than the use of rill, to the flood protection elevation; on-site sewage disposal system in a flood fringe area shall meet all the applicable provisions of the flood plain zoning ordinances and Wis. 3. In areas regulated by counties. no structural repairs, mod- Adm. Code Section 1162.20 and chapter H 65. ifications or additions to a structure, which exceed over the life of the structure 50% of its present equalized assessed value shall be allowed (d) Any new, addition to, replacement, repair or maintenance of a unless the entire structure is flood proofed, by means other than the well in a flood fringe area shall meet the applicable provisions of the use of fill.' to the flood protection elevation. In areas regulated by flood plain zoning ordinance and Wis. Adm. Code chapters NR III cities and villages, no structural repairs, modifications or additions to and NH 112. a structure, which exceed over the life of the structure 50% of its Illstary; Ct. Register, July, 1977. No. 250. off. 8-1-77. present equalized assessed value. shall be allowed unless the entire NIX 11.6.16 Flood proofing. (1) GENERAL. When flood proofing structure is permanently changed to a conforming use; and measures are required by either local ordinances of chapter NR 116, 4. If any nonconforming structure is destroyed or is so badly such measures shall be designed to withstand the flood velocities, damaged that it cannot be practically restored. it cannot he replaced, depths. forces, flotation and other factors associated with the re 'on reconstructed, or rebuilt unless the provisions of sections NII 116.13 flood, to assure protection to the flood protection elevation. A pfan or and Nit 116.14 are met. For 'the purposes of this subsection, document, certified by a registered professional engineer or architect restoration is deemed impractical where tile total cost of such that the flood proofing measures are adequately designed. shall be restoration would exceed 50% of the present equalized assessed value submitted to the local unit of government prior to its authorization to of said structure. Where such damage occurs in areas regulated by proceed. counties, the entire structure shall he flood proofed to the flood protection elevation, by means other than fill. (2) FLOOD PROOPING MEASURES. Flood proofing measures shall in- clude, but are not limited to. the following: (h) No new on-site sewage disposal System, or additions (is exisfing on-site sewage disposal systems, shall be allowed in a floodwav area. (a) Anchorage of structures to foundations. Register. July. 1977. No. 259 Regi-ter. July, 1977. No. 259 Environmental Protection Eta iri.nniental Protection 94-10 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 94-11 (b) Installation of water-tight doors, bulkheads and shutters. constructed to protect agricultural lands from lower floods (10-year (c) Reinforcement of walls and floors to resist water pressures. frequency or more often) . (d) Use of paints, membranes or mortars to reduce seepage of water (b) Agricultural levees shall be designed and constructed so that through walls. the levees will overtop upon the occurrence of the 10-year frequency (a) Addition of mass or weight to structures to prevent flotation, flood. (c) Increases in flood heights in the area upstream from ag- (f) Installation of pumps to lower water levels in structures. ricultural levees shall not exceed 0.5 foot (15 cm.) for the 10-year (g) Construction of wells, water supply and waste treatment sys- frequency flood, based upon an assumption of equal degree of tems so as to prevent the entrance of flood waters into such systems. hydraulic encroachment on both sides of a river or stream for a hydraulic reach. No increase is allowed unless the written consent of (h) Subsurface drainage systems, including pumping facilities, to the affected property owners is obtained prior to construction. relieve external foundation wall and basement flood pressures. (d) Agricultural levees shall be designed and constructed to be (i) Cutoff valves on sewer lines or the elimination of gravity flow overtopped and to cause no increase during the occurrence of the basement drains. regional flood. 0) Placement of essential utilities above flood protection The zoning administrator shall notify the department of the elevations. (e) Historyt Cr. Register. July, 1977. No. 259, W. 8-1-77. construction of any agricultural levees. (3) RESERVOIRS AND CHANNEL IMPROVEMENTS. No anticipated NR 116.17 Flood control worlm or protective works. (1) LEVEES changes in the flood protection elevations or flood plain and floodway OR FLOODWALLS. (a) No increase equal to or greater than 0. 1 foot (3 cm.) limita, based upon proposed reservoir or channel improvements, shall in the height of the re ional flood caused by construction of levees or be effective until the reservoir or channel improvements are floodwalls shall be owed unless the increase is wholly contained constructed and operative. If such improvements become inoperative within the upstream extent of such levee or flood wall, or unless or ineffective, the zoning regulations shall be amended to reflect the amendments are made.to the official floodway lines, water surface preconstruction conditions. profiles, flood plain zoning maps and flood plain zoning ordinances in accordance with the provisions of sections NR 116.12 and NR Historp Cr. Register. July. 1977, No. 259. off. 8-1-77. 116.21(6). NR 116.18 Procedures for changing flood plain and floodway (b) The minimum height and design of any levee or floodwall shall limits. Counties, cities or villages shall not change the limits of the be calculated using whichever of the following provides the greater flood plain or the floodway without first amending the applicable protection from floods: portions of the water surface profiles, flood plain zoning maps and 1. The flood profile of the regional flood, with that regional flood flood plain zoning ordinances and securing department approval to confined between the proposed levees or floodwalls, plus 3 feet of such amendments. The flood fringe designation on flood plain maps freeboard; or shall not be removed from any area unless it can be shown that the area has been filled to the flood protection elevation and is contiguous 2. The standard project'flood and/or the 500-year flood confined to other lands lying outside the flood plain. between the proposed levees or floodwalls. History: Cr. Register. July, 1977, No. 259, off. 8-1-77. (c) Exceptions to the standards prescribed in paragraph (b) above may be granted by the department on a case-by-case basis for levees NR 116.19 Appointment and duties of zoning administrator. and floodwalts not used to protect human life. zoning agency and board of adjustment/appeals. (1) APPOINTMENT POWERS. Counties, cities and villages shall provide in their flood plain (d) All flood plain developments landward of any levee or floodwall zoning ordinances for the appointment of appropriate boards and shall provide for interior drainage using designated ponding areas. staff, and the development of necessary policies and procedures, to pumps or other similar means. ' administer the flood plain zoning ordinance in accordance with this (e) The criteria in section NR 116.14 shall apply to flood fringe section. Where a zoning administrator, planning agency or a board of development until such time as the levees and floodwalls are adjustment/appeals has already been appointed to administer a pnstructed and operative. If such levees or floodwalls become zoning ordinance adopted tinder sections 59.97, 59.971 or 62.23(7),' inadequate or inoperative, the zoning regulations shall be amended to Wis. Stats., these officials shall also administer the flood plain zoning reflect the preconstruction conditions. ordinance. (2) AGRICULTURAL LEVEES. (a) Counties, cities and villages may (2) ZONING ADMINISTRATOR. A zoning administrator and such ad- permit agricultural levees which meet all applicable provisions of this ditional staff as needed shall be appointed and given the duties and subsection. For purposes of this section, an agricultural levee is one powers to: Register, July, 1977. No. 269 Register, July. 1977. No. 259 Environmental Protection Environments! Protection 94-12 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 94-13 (a) Advise applicants of the provisions of the flood plain zoning rotary. The zoning administrators shall not be the secretary of the appeals; board of adjustment/appeals. History Cr. Register, July, 1977, No 259, eff. 8-1-77. (b) Issue permits and inspect properties for compliance with the flood plain zoning ordinance; NR 116.20 County. city and villa responsibilities. (1) Juris- (c) Keep the official records of all water surface profiles, flood plain diction, The flood plain zoning ordinacne shall require authorization (permits, special exceptional, variances and amendements) from the zoning maps, flood plain zoning ordinances. nonconforming uses and appropriate county, city or village for any of the following activities in flood plain areas: amendments related to the flood plain zoning ordinance; (a) Any now use or change in use of land and water. (d) Submit copies of any required data, special exception permits, (b) Any now use or change In use of land or water. variances, amendments, case-by-case analyses, annual reports, and any other required information to the department. An annual (c) The above activities Include, but are not limited to, the fol- summary showing only the number and types of zoning actions taken lowing: by the county city or village shall be submitted to the department by the zoning administrator; and 1. Any structure or building or accessory use which is to be erected, (e) Investigate, prepare reports and report violations of the flood constructed, reconstructed, altered or moved into the flood plain area; plain zoning ordinance to the appropriate county, city or village 2. Any alteration, addition, modification rebuilding or replacement of any existing structure or building o district attorney, with copies to the appropriate department district office. 3. Any deposition of materials for a (3) ZONING AGENCY. A zoning agency or committee shall be ap- 4. Any sanitary waste disposal or water supply facilities, both piublic pointed and given the duties a powers to: and private. (a) Oversee the functions of the office of the zoning administrator; (2) ADMINISTRATIVICE PROCEDURES. The flood plain zoning ordinance shall establish administrative procedures (b) Review and act upon all proposed amendments to the flood shall establish administrative procedures for obtaining all required permits, special exceptions (conditional uses), variances, appeals and amendments. These procedures shall provide for the following: plain zoning ordinance; (c) In some cases, a zoning committee may act in place of the board (a) An application shall be made the zoning administator for all and decide special exception permits (conditional uses). However, a zoning permits, special exceptions (conditional uses), variances and zoning committee cannot act upon requests for a variance; and amendments. The application shall include, but not be limited to, the (d) Maintain a complete public record of all its proceedings. information listed below. 1. The name and address of the applicant and property owner (s); (4) BOARD OF ADJUSTMENT/APPEALS. A board of adjustment (in 2. The legal description of the property and the type of proposed counties) or board of appeals (in cities and villages) shall he ap- use; pointed and given the duties and powers in accordance with sections 3. A map plan which accurately locates or describes the proposal 59.99 and 62.23 (7), Wis. State., to: with respect to the floodway, and which provides all (a) Hear and decide appeals where there is an alleged error in any pertinent information such as the fill dimensions and elevations, interpretation, order, requirement, decision. or determination made building floor elevations, and flood proofing data; and by the zoning administrator in the enforcement or administration of 4. For all subdivision proposals, and all other proposals if the area the flood plain zoning ordinance; affected exceeds 5 acres or the estimated cost of the proposal exceeds $75,000, the applicant shall provide all computations which are re- (b) Hear and decide all requested special exceptions (conditional $75,000 the applicate shall provide all computations which are re- uses) to the terms of the flood plain zoning ordinance, using the quired to show the effect of the proposal on flood heights, volocities criteria found in section NR 116.21(3); and flood plain storage. The county, city or village may transmit this (c) Hear and decide all requested variances to the terms (if the data to the department for review. (d) Maintain a complete public record of all its proceedings; and (b) In those instances where inadequate data exists and the con- (e) Make all of its decisions within a reasonable time and in the ditions in subsection (2) (a) 4, above are not present, the county, city form of a written statement, resolution or order signed by the sec- or village may transmit the above information to the department for a Register, July, 1977, No. 259 determination of flood protection elevations and for an evaluation Environmental Protection the effects of the proposal upon flood heights, velocities and flood plain storage. Additoniona information, such as valley cross sections or 94-14 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOURCES 94-15 survey data, may be required by the department when needed to (c) All legal descriptions of property in the flood plain should determine the effects of the proposal; this information shall then be include information relative to the zoning classification when such obtained from the applicant by the county, city or village. property is transferred. The department shall advise the county, city or village of its History: Cr. Register, July, 1977. No. 259, off. 8-1-77. findings within 30 days after receiving the data, or within 30 days NR 116.2t Permits, special excepflons (conditional uses), after receiving all requested additional information. Failure of the variances, appeals and amendments. (1) GENERAL. The flood plain .department to respond within 30 days may be construed to mean it zoning ordinance shall list the specific types of uses which may be has no comment. authorized by permit, special exception (conditional use), variance or amendment, indicating the particular authorization required for each (c) Public hearings shall be held by counties, cities or villages on all tne of use. These authorizations shall not be contrary to the pro- special exceptions (conditional uses), variances, appeals and amend- visions of this chapter or other state law, or to applicable municipal ments. Proper notice shall be given of such public hearings in ac- ordinances. cordance with appropriate statutes; mailed notice of such public hearings and a copy of the application shall be given to the de- (2) PERMITS. Counties, cities and villages shall issue permits for partment. Such notice shall-specify the time and place of the hearing uses in flood plain areas which are in-compliance with the applicable and give sufficient details, concerning the subject matter of the public ovisions for permitted uses in their flood plain zoning ordinances. hearing. Wese permits shall be issued by the zoning administrator. (d) A copy of all decisions granting or denying a special exception (3) SPECIAL EXCEPTIONS (CONDITIONAL USES). Any use requiring a (conditional use), variance or amendment to the flood plain zoning special -exception (conditional use) permit may be allowed only upon ordinance shall be mailed within 10 days to the department. application to the zoning administrator, public hearing and issuance of a special exceFtion (conditional use) permit by the board of (3) CERTIFICATE OF COMPLIANCE. No vacant land in the flood plain, adjustment/appea a or, where appropriate, the zoning committee. and no building hereafter erected, altered or moved into the flood When determining wh "ether to grant or deny a special exception plain, shall be occupied or used until the applicant obtains a cer- (conditional use) permit, the board of adjustment/appeals shall as- tificate of compliance from the county. city or village. Counties, cities sure compliance of the proposal with: and villages may require that said certificate shall be issued only after (a) The provisions of the flood plain zoning ordinance; the applicant has submitted to the local zoning administrator or building inspector a certification by a registered professional engineer (b) The purpose and objective of flood plain management, as or regiAtered land surveyor that the following items were accom- enumerated in section NR 116.01; and plished in compliance with the flood plain zoning ordinance: (c) Local comprehensive plans and other land use controls. (a) The elevation of rill; (4) VARIANCES. Any prohibited deviation from the standards of the (b) The elevation of the first floor; and flood plain zoning ordinance, for which a permit has been denied by the zoning administrator, may be allowed only upon written request (c) Any other technical information required by the county, city or for a variance submitted to the zoning administrator, public hearing, village. and issuance of a variance by the board of adjustment/appeals. The board may authorize in specific cases such variance from the terms of (4) ENFORCEMENT AND PENALTIES. Each flood plain zoning ordinance the ordinance as will not be contrary to the public interest where, shall include a uparate section establishing appropriate penalties for owing to special conditions and the adoption of the flood plain zoning violations of various provisions of the ordinance. An appropriate ordinance, a literal enforcement of the provisions of the ordinance will penalty, as reflected in section 87.30(2), Wis. Stats., may include an result in unnecessary hardship. A variance: injunction, abatement, removal and/or fine or forfeiture. Any vi- olation of the provisions of the flood plain zoning ordinance shall be (a) Shall be consistent with the spirit of the flood plain zoning investigated and reported to the appropriate municipal attorney. ordinance. corporation counsel or district attorney who shall expeditiously (b) Shall not permit a lower degree of flood protection in the prosecute the violator. floodway area than the flood protection elevation. (5) PUBLIC INFORMATION. (a) Where useful, marks on bridges or (c) Shall not be granted for a use that is common to a group of buildings or other- markers may be set to show the depth of adjacent lots or premises. (In such a case, the zoning ordinance would inundation during the regional flood at appropriate locations within have to be amended through proper procedures.) the flood plain. (d) Shall not be granted unless it is shown that the variance will (b) All available information in the form of maps, engineering data not be contrary to the public interest or damaging to the rights of and regulations should be readily available and widely distributed. other persons or property values in the area. Register. July, 1977, No. 259 Register, July. 1977, No. 259 Environmental Protection Environmental Protection 94-16 WISCONSIN ADMINISTRATIVE CODE DEPARTMENT OF NATURAL RESOUHCII@S 94-17 (e) Shall not be granted for actions which require an amendment to (e) No amendments to official floodway lines, water surface pro- the flood plain zoning ordinance all describedin subsection (6) below. files, flood plain zoning maps or flood plain zoning ordinances shall become effective until they have been approved by the department. (f) Shall not have the effect of granting or increasing a use of property which is prohibited in that zoning district by the flood plain If lelory: Cr. Register. July. 1977. No. 259, *ff. 8-1-77. zoning ordinance. NR 116.22 Department duties. (1) AssisTANcr To COUNTIES, CITIES (g) Shall not be granted solely on the basis of economic gain or loss. AND VILLAGEs. The department shall provide assistance to counties, cities and villages in the development, adoption and administration of (h) Shall not be granted for a self-created hardship. their official floodway lines, water surface profiles, flood plain zoning maps and flood plain zoning ordinances. Such assistance shall include, (5) APPEALs. Appeals to the board of adjustment/appeals may be but not be limited to, the activities described below. taken by any party aggrieved by any decision of the zoning ad- (a) The department shall establish and upgrade standards for local ministrator. Requests for special exception (conditional use) permits may be considered as appeals. Such appilals shall specify the grounds flood plain zoning ordinances. thereof and he riled within a reasonable period of time with the (b) When requested by a county, city or village. the department zoning administrator. The flood plain zoning ordinance shall set forth shall evaluate flood hazards and the effects of proposals in flood plain the time limitations for riling appeals. The zoning administrator shall areas upon water surface profiles, floodway limita and flood velocities forthwith transmit to the board of adjustment/appeals all records of as provided in section NR 116.20(2). Requests for such evaluations the matter concerning the appeal. After public hearing, the board's must come from a county, city or village, not from individual property decision shall either affirm, reverse, vary or modify in whole or in part owners or applicants. the order, requirement. decision, or determination appealed from. All appeal decisions must conform to the applicable provisions of the (c) The de artment shall work with federal agencies to provide flood plain zoning ordinance. The board's decision may he appealed to technical guilance and computer facilities for certain. hydrologic, hydraulic and engineering studies. Generally, the necessary topog- the courts in accordance with applicable state law. raphic and other base maps and field surveys will be the responsibility (6) AmeNDMENTS. (a) Official amendments are required for any of the county, city or village. changes in the official floodway lines, water surface profiles, flood (.d) The department shall establish priorities for engineering stud- plain zoning maps or flood plain zoning ordinance. Actions which ies to be done in counties, cities and villages by federal agencies. require an amendment by the county, city or village include, but are not limited to, the following: (e) The department shall respond to the requests from counties, -P- cities and villages to provide them assistance in enforcement actions 1. Any change in the official floodway lines or in the boundary of against violations of their flood plain zoning ordinances. the flood plain area; (f) The department shall respond to requests from counties, cities 2. Settlement of conflicts between the water surface profiles and and villa ea for assistance in developing hydraulic and official flood plain zoning maps, in accordance with section NR 116.10; floodway fines. 3. Any rill or encroachment into the floodway whichwill result in (g) The department shall review all regional flood flow deter- raising the elevation of an area in the floodway to a height at or above minations. No such determination shall be used until department the elevation of the regional flood; approval has been secured. 4. Any fill or encroachment that will cause a change in the water (2) REviEw AND APPROVAL OF FLO On PLAIN ZONING ORDINANcas. The surface profiles of the regional flood; and department shall issue a certificate of approval to a county, city or village upon a finding that the adopted flood plain zoninF ordinance 5. Any upgrading of flood plain zoning ordinances in accordance meets the provisions of this chapter. The department review of flood with section NR 116.05. plain zoning ordinances may include, but is not limited to, de- (b) Amendments may be made upon petition of any interested terminations that: I party in accordance with the app!opriate provisions of sections (a) The most accurate maps were utilized in delineating the flood 59.97 (3) and (4) and 62.23 (7) (d) I Wis. Stats. plains; (c) All proposed amendmentil shall be referred to the appro riate (b) All flood plain zoning maps and fl@od plain zoning ordinances county, city or villa y for a public hearing ans rec_ re compatible with all other shoreland regulations, existing zoning tge zoning agenc ommendation to e governing body which shall approve or :ud lant use plans; disapprove the proposed amendment. (c) All water surface profiles, flood plain zoning maps and flood (d) Amendments of official floodway lines shall meet the provisions plain zoning ordinances are compatible with those of the adjoining of section NR 116.12. communities on Lite same streams or rivers; and Register. July, 1977, No. 269 Register. July. 1977. No. 269 Environmental Protection Environmental Protection 94-18 WISCONSIN ADMINISTRATIVE CODE (d) The floodway and flood plain lines shown on the flood plain zoning maps are accurate. (3) MONITORING. The department shall monitor the administration and enforcement of flood plain zoning ordinances in counties, cities and villages. In so doing, the department may: (a) Establish and upgrade standards for the review and evaluation of the administration and enforcement of flood plain zoning or- dinances. (b) Review and approve or deny proposed amendments to water surface profiles, flood plain - zoning maps and flood plain zoning ordinances. (c) Review flood plain zoning permits, and all special exceptions (conditional uses), variances and amendments to flood plain zoning ordinances, to ensure in each instance compliance with the applicable flood plain zoning ordinances and this chapter.. (d) Review state and federal projects to assure that public works proposals in flood plain are compatible. with local flood plain zoning ordinances and the provisions of this chapter. (4) ENFORCEyzNT. The department shall assist counties, cities and villages in achieving a consistent statewide approach to flood plain enforcement.'This assistance I may include, but is not limited to, the measures listed below. (a) The department may request that corrective action be taken by _J the county, city or village where construction is occurring in a flood t-n plain area which ia2 either contrary to an existing flood plain zoning ordiriance or which would be contrary to an approved flood plain zoning ordinance. Such,corrective action' may include, where ap- propriate, the following: 1. Active prosecution of violations of the flood plain zoning or- dinance; 2. An injunction to stop construction until an adequate flood plain zoning ordinance can be adopted and approved by the department; and 3. Adoption of an adequate flood plain zoning ordinance and submittal to the department for approval. (b) The department may seek an injunction to stop construction in the flood plain area until an adequate flood plain zoning ordinance is adopted and approved, when the construction would violate such an approved flood plain zoning ordinance. (c) The department may seek adoption of an adequate flood plain zoning ordinance in accordance with the provisions of section 87.30 (1), Wis. Stats. (d) The department may seek an injunction, abatement, removal and/or fine for any violation of a. flood plain zoning ordinance in accordance with section 87.30 (2). Wis. State. Histow. Cr. Register, July, 1977. No. 259, off. 8-1-77. Register, July. 1977. No. 259 Environmental Protection NATURAL RESOURCES 81 Chapter NR 115 WISCONSIN'S MORELAND MANAGEMENT PROGRAM NR 115.01 Introduction NR 116.04 NR 115.02 Nature of the program NR 116.03 Shoreland regulation NR 116.06 standards and criteria History: Chapter RD 15 as it existed an August 31, 1970 and a new chapter numbered NR 115 was created, Register, August, 1970 No. 176, effective September 1, 1970. NR 115.01 Introduction. (1) The water resources act (Chapter 614, laws of 1965) requires counties to enact regulations for the protec- Unit of all shorelands in unincorporated area by January 1, 1968. Shorelands us defined by the law are lands within 1000 feet of a navigable lake, pond or flowage and lands within 300 feet of a river or navigable stream or to the landward side of the floodplain,which- ever distance is greater. (2) The statute defines the purposes of regulations enacted for shoreland protection: "to further the maintenence of safe and health- ful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses and reserve shore cover and natural beauty." History: Cr. Register, August, 1970. No. 17c eff. 9-1-70. NR 115.02 Nature of the program. (1) The water resources act creates section 59.971, Wis. Slats., which requires the zoning of shore- lanes in the unincorporated areas of each county. Such zoning shall not require the approval of the town boards. To assure that such zoning will be accomplished, section 59.971 (6), Wis. Stats, states that if any county does not adopt an ordinance by January 1, 1968, or If the department, after notice and hearing, determines that a county had adopted an ordinance which fails to meet reasonable minimum standards in accomplishing the shoreland protection objec- lives, the department shall adopt such an ordinance. (2) To comply with the water resources act, it is necessary for a county to enact shoreland regulations, including zoning provisions, land division controls, sanitary regulations and administrative pro- visions ensuring enforcement of the regulations. (3) It is the policy of the department, in the discharge of its responsibility tinder section 144.24, to require adherence to certain specific standards and criteria. The standards and criteria are in- tended to define the objectives of the regulations. History Cr. Register, August 1970, No. 176, eff. 9-1-70; am (1), Reg. later, May, 1971, No. 185, eff. G-1-71. NR 115.03 Shoreland regulation standards and criteria (1)ESTAB- LISHMENT OF APPROPRIATE ZOINING DISTRICTS. Shorelands area develop- ment can usually he controlled by regulations appropriate to wetlands (conservancy district), recreation-residential districts and general purpose districts. Where detailed land use planning has been accom- plished, other typos of districts may also be desirable. Register, May, 1971, No. 185 Environmental protection 82 WISCONSIN ADMINISTRATIVE CODE (2) Estabilishment of Land use Zone Regulations. The zoning provisions adopted must provide sufficient control of the use of shore- lands to afford the protection of water quality as specified in Wis. Adm. Code chapters NR 102 and 103. The provisions shall include the following: (a) Minimum lot sizes. All future lots in the shoreland area shall afford protection against danger to health and hazard of pollution of the adjacent body of water. 1. Lots served by public sewer shall have a minimum width of 65 feet and a minumum area of 10,000 square feet. 2. Lots not served by public sewer shall have a minimum average width of 100 feet and a minimum area of 20,000 square feet. (b) Building setbacks. The permitted location of buildings and sturctures shall conform to health requirements, preserve natural beauty and reduce flood hazards. 1. Unless an exisiting development pattern exists, a setback of 75 feet from the normal high waterline shall be required. 2. No building shall be erected in the floodway of a stream (see chapter NR 116, definitions). 3. Boathouses or similar structures which require a waterfront location shall not be used for habitation nor extend toward the water beyond the ordinary high waterline. 4. Buildings and structures shall be subject to any applicable floodplain zoning regulations. (c) Trees and shrubbery. The cutting of trees and shrubbery shall be regulated to protect scenic beauty, control erosion and reduce the flow of effluents and nutrients from the shoreland. In te strip 35 feet inland from the normal high waterline, no more than 30 feet in any 100 feet shall be clear cut. In other areas, trees and shrub cutting shall be goverened by consideration of the effect on water quality and should be in accord with accepted management parctices. (d) Filling, grading, logooning, dredging. Filling, grading, logoon- ing and dredging may be permitted only in accord with state law and where protection against erosion, sedimentation and impairment of fish and aquatic life has been assured. (3) estavlishment of Sanitary Regulations. The protection of health and the preservation and enhancement of water quality required sanitary regulations to be adopted by the county. (a) Where public water supply systems are not available, private will construction shall conform to Wis. Adm. Code chapter NR 112. (b) Where a public waste collection and treatment system is not available, design and construction of private sewage disposal systems shall fully comply with Wis. Adm. Code section H62.20. (4) Adoption of Administrative and Enforcement Procisions. Each ordinance required by these regulations shall provide for: (a) The appointment of an administrator and such additional staff as the work load may require. (b) A planning agency (planning and zoning committee) and a board of adjustment as required by law. (c) A systemof permits for all new consturction, reconsturction, structural alteration or moving of buildings and structures, including sanitary waste disposal and water supply facilities. A copy of all applications shall be filed in the office of the county administrator. NATURAL RESOURCES 63 (d) lRegular inspection of permitted work in progress to insure conformity of the finished structures with the terms of the ordinance. (e) A variance procefure relating to the use, change of use or alteration of nonconforming lands and structures, and a special ex- ception procefure for uses presenting special problems of pollution or flood hazard. The county shall keep a complete record of all pro- ceeding before the board of adjustment and planning agency. (f) Timely notice to the floodplain-shoreland management section of the department of natural resources of herarings on proposed cariances, special exceptions and amendments and delivery to that section of copies of decisions on such cariances, special exceptions and such amendments, when adopted. (g) Mapped zoning districts and the recording, on an official copy of such map, of all district boundary changes. (h) The prosecution of all ciolations of shoreland zoning ordi- nances. 5. Establishment of Land Suitablity Review. The county shall review all land divisions which create 3 or more parcels or building sites of 5 acres each or less within a 5 year period. In such review the following factors should be considered: (a) Hazards to the health, safety or welfare of future residents. (b) Proper relationship to adjoining areas. (c) Public access to navigable waters, as required by law. (d) Adequate strom drainage facilities. (e)Conformity to state law and administrative code provisions. NR 115.04 Role of the Department of Natural Resources. (1) Role. The department of natural resources is directed by the legislature to assist the counties in carrying out their responsibilities of the regulations. If necessary, the department may recommend to the natural resources board the adoption of an ordinance for a county, if the county failed to meet these standards and criteria. (2) Compliance Determined by Evaluating County Regulations With Section NR 115.03. (a) Compliance with the requirements of section 59.971 will be determined by comparing the county shorland regulations withthe state minimum standards for shorland pro- tection as contained in section NR 115.03. Counties that have enacted regulations that meet the minimum standards for shoreland protec- tion will be considered as complying with section 59.971, Wis. Stats. (b) Compliance status shall also be maintained by the county during subsequent reevaluation of the regulations to ascertain their effectiveness in maintaining the quality of Wisconsin water. A county shall keep its regulations current, effective and workable to retain its status of compliance. Failure to do so shall be deemed noncompli- ance. (c) Compliance with chapter NR 115 shall not affect a county's responsiblity to comply with chapter NR 116, floodplain management standards. (d) The department shall issue a certificate of compliance when a county has, in th opinion of the department, complied with section 59.971, Wis. Stats. Register, May 1971, No 186 Environmental protection 84 WISCONSIN ADMINISTRATIVE CODE (3) Noncompliance. (a) Counties that have regulations that do not meet the minimum rules as contained in section NR 115.03 shall be considered as not complying with the requirements of the water resources act pertaining to shoreland regulations. For these counties to achieve compliance status, they shall modify their regulations to meet the minimum standards within a time limit established by the department. (b) Counties that have not drafted shorland regulations shall be deemed noncomplying counties. They shall state to the department of natural resources their reasons, if any, for failure to comply with the water resource act. The department shall then require the county: 1. To proceed with regulation formation within a given time period, or; 2. a. To have the staff of the department of natural resources draft the regulatoions, or; b. Contract with a consultant to draft the regulations. All costs for such actions by the department of natural resources shall be borne by the noncomplying county. NR 115.05 Assistance of counties. To the full extent of its resources, the department of natural resources will provide advice and assist- ance to the conuties, seeking the highest practicable degree of uniformity consistent with the objectives of the shoreland regulations provisions of the water resource act. 79 Appendix: E Case List: Angelo v. Railroad Commission (1928), 194 Wis. 543, 217 N.W. 570 Bond v. Wojahn (1955), Z69 Wis. 235, 69 N.W. (2d) 258 Clafin v. Department of Natural Resources (1973), 58 Wis. (2d) 182, 296 N.W. 2d 392 Cohn v. The Wausau Boom Co. (1978), 47 Wis. 314, 2 N.W. 546 Colson v. Salzman (1956), 272 Wis. 397, 75 N.W. (2d) 421 Diedrich v. The Northwestern Union R'y Co. (1877), 42 Wis. 248 Doemel v. Jantz (1923), 180 Wis. 225, 193 N.W. 393 Hixon v. Public Service Commission (1966), 32 Wis. (2d) 608, 146 N.W. 2d 577 Illinois Steel Co. v. Bilot (1901), 109 Wis. 418 Madison v. Mayers (1897), 97 Wis. 399, 73 N.W. 43 McLennan v. Prentice (1893) 85 Wis. 427 Muench v. Public Service Commission (1952), 261 Wis. 492, 55 N.W. (2d) 40 Nekoosa-Edwards Paper Co. v. Railroad Commission (1930), 201 Wis. 40 Olson v. Merrill (1877), 42 Wis. 203 State v-. McFarren (1974), 62 Wis. (2d) 492, 215 N.W. (2d) 459 State v. Public Service Commission (1957), 275 Wis. 112, 81 N.W. (2d) 71 Town of Ashwaubenon v. Public Service Commission (1963), 22 Wis. (2d) 38, 126 N.W. (2d) 567 The Union Mill Co. v. Shores (1886), 66 Wis. 476 Yates v. City of Milwaukee (1870), 77 U.S. 497 r-, US Department of Commerce NOAA Coactai B(za-,rices Cc mter Library 2204' Soutl-i EcIzc-m Avenue Charleston, SC 29405-2413 j JOAA COASTAL SCRVICES CTR LIBRARY 3 6668 14111498 5