Chapter 2 Updates: Navigable Water Regulations
§2.01a(1) Chapter 30 Jurisdiction p. 50
2015 Wis Act 387 created a new section 30.053 which provides that except for the boating regulations in subchapter V or where specifically provided otherwise, "nothing in this chapter applies to an artificial water body as defined in section 30.19(1b)(a)."
§2.01a(3) The Chapter 30 Permit System - Exemptions p. 52
2015 Wis Act 387 redefined the term "areas of special natural resource interest" in Wis. Stat. § 30.01(1am). It removed the general category of "scientific areas" which DNR broadly defined in Wis. Admin Code NR 1.05, and replaced it with a set of specific waters published on DNR's website. The effect of this change is to allow exemptions to be more widely available.
2.02b(3) State Pier Regulations -- Individual Permits p. 67.
Recent changes to Wis. Stat. § 30.12(1k)(f) provide that the process for challenging a DNR determination to deny a pier exemption, is to commence a declaratory judgment action in circuit court rather than a contested case proceeding and judicial review.
§2.02b(4) Riparian Easements p. 68 fn. 123 and 126
In Konneker v. Romano, 2014 WI App ___, ___ Wis. 2d ___, (2012AP69 unpub) the court of appeals evaluated whether a deed with a riparian easement intended to convey the right to construct and maintain a pier, and concluded that no such intent was found.
§2.02c(1) Boat Shelters and Boat Lifts p. 70
2015 Wis. Act 387 made several changes to remove restrictions regarding the placement of boat shelters based on the distance from shore or degree of adjacent development. These provisions apply to permit exemptions in 30.12(3)(a)13 and 30.12(3)(c) and to individual permits in 30.12(3m).
§2.02c(2) Boathouses p. 71
Several provisions in 2015 Wis. Act 387 broadened the ability to maintain and use boathouses, while retaining the general prohibition on the construction of new boathouses. The definition of boathouse in Wis. Stat. § 30.01(1d) provides that a boathouse retains its status as a boathouse regardless of the current use of the structure. However, a provision was added to prevent the conversion of a wetbay to enable other uses of the boathouse. Many boathouses have been partially or completely converted to other uses and this provision makes it clear that such uses can continue. The boathouse provisions on repair and maintenance in Wis. Stat. § 30.121(1) were expanded to allow for repair of foundations and Wis. Stat. § 30.121(3c) was amended to allow for changes in configurations (such as the placement of windows and doors) as part of boathouse repair.
§2.02d(1) Bridges and Culverts -- Exemptions p. 72
2015 Wis. Act 55 broadened the exemption for the construction, maintenance and replacement of culverts if they are placed in the same location as the culvert being replaced. These provisions appear for exemptions under Wis. Stat. § 30.123(6)(d) and general permits under Wis. Stat. § 30.123(7)(b)
§2.03b (1) Enlargements p. 79
See also, stormwater ponds §2.03f (1)
§2.03e Shoreline Erosion Control Lakes -- General Permits p.83
2015 Wis Act 387 broadened the provisions governing general permits for the replacement of seawalls. See, Wis. Stat. § 30.12(3)(a)13.
§2.03f(1) Construction Sites Near Navigable Waters – Grading Permits, p. 86.
The second paragraph second sentence should read, “General permits are not available only if the site is located in or adjacent to a state natural area, a federal wild and scenic river or a state wild river.” (Corrected in the second printing)
§2.03f (1) Stormwater Ponds, p. 86.
In addition to the provisions in Wis. Stat. § 30.19, several other regulations can impact the location,
construction and maintenance of stormwater ponds.
In-line ponds. In 2009, the DNR took the position that the Clean Water Act prohibits locating stormwater retention ponds in navigable waters or wetlands. There are however cases which seem to support a contrary result. See, Ohio Valley Envtl Coalition v. Aracoma, 556 F. 3d 177, 186 (4th Cir 2009) and Williams Pipe Line Company v. Bayer, 964 F. Supp 1300 (S.D. Iowa 1997). Nevertheless, this restriction is now codified in Wis. Admin Code § NR 151.003(2). This rule provides that if a municipality builds a stormwater pond in a navigable water, it is not entitled to credit for the sediment reduction obtained from such a pond. Since ponds are normally built precisely for that purpose, this is a major practical barrier in addition to whatever restrictions the DNR may impose through the Chapter 30 permit process. There are exceptions to this restriction for non-navigable waters and intermittent navigable waters, as well as some facilities authorized before 2011.
2015 Wis Act 387 broadened the provision in NR 151.003 in two respects. First, Wis. Stat. § 281.16(2)(c) authorizes credit for in-line ponds for an artificial water regardless of whether it was navigable. Second a new provision, Wis. Stat § 30.19(4)(d) now requires DNR to consider the "sediment control in and water quality improvements to the watershed as a whole" from such ponds.
Stormwater pond sediment. Stormwater ponds need to be maintained and this often requires the
removal of accumulated sediment. Given the potential for contaminants in the sediment, Wis. Admin Code ch. NR 528 requires that removal of such sediment be tested and properly disposed. Where there is a low
potential for contaminants, testing can be limited or avoided. Where testing shows contaminants over certain specified “ceiling levels” the disposal of the sediment may be subject to additional limitations.
2015 Wis. Act 387 did however make the process of stormwater pond maintenance easier by exempting the dredging of such ponds from permits. See, Wis. Stat. § 30.19(1m)(dm). A parallel provision exempts maintenance of such ponds from the wetland permitting provisions. See. Wis. Stat. § 281.36(4)(f)
Bird Hazards. Stormwater ponds can attract birds. If the pond is close to an airport there can be safety concerns. Federal Aviation Administration (FAA) regulations at 14 C.F.R 139.337 address wildlife
hazards. The FAA, the U.S. Air Force, the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture - Wildlife Services signed a Memorandum of Agreement (MOA) in July 2003 to protect aviation from wildlife hazards. FAA Advisory Circular 150/5200-33B establishes water feature setbacks from airports that can extend as much as 5 miles from the airport. The placement of open water stormwater ponds may be limited as a
result.
§2.01a(1) Chapter 30 Jurisdiction p. 50
2015 Wis Act 387 created a new section 30.053 which provides that except for the boating regulations in subchapter V or where specifically provided otherwise, "nothing in this chapter applies to an artificial water body as defined in section 30.19(1b)(a)."
§2.01a(3) The Chapter 30 Permit System - Exemptions p. 52
2015 Wis Act 387 redefined the term "areas of special natural resource interest" in Wis. Stat. § 30.01(1am). It removed the general category of "scientific areas" which DNR broadly defined in Wis. Admin Code NR 1.05, and replaced it with a set of specific waters published on DNR's website. The effect of this change is to allow exemptions to be more widely available.
2.02b(3) State Pier Regulations -- Individual Permits p. 67.
Recent changes to Wis. Stat. § 30.12(1k)(f) provide that the process for challenging a DNR determination to deny a pier exemption, is to commence a declaratory judgment action in circuit court rather than a contested case proceeding and judicial review.
§2.02b(4) Riparian Easements p. 68 fn. 123 and 126
In Konneker v. Romano, 2014 WI App ___, ___ Wis. 2d ___, (2012AP69 unpub) the court of appeals evaluated whether a deed with a riparian easement intended to convey the right to construct and maintain a pier, and concluded that no such intent was found.
§2.02c(1) Boat Shelters and Boat Lifts p. 70
2015 Wis. Act 387 made several changes to remove restrictions regarding the placement of boat shelters based on the distance from shore or degree of adjacent development. These provisions apply to permit exemptions in 30.12(3)(a)13 and 30.12(3)(c) and to individual permits in 30.12(3m).
§2.02c(2) Boathouses p. 71
Several provisions in 2015 Wis. Act 387 broadened the ability to maintain and use boathouses, while retaining the general prohibition on the construction of new boathouses. The definition of boathouse in Wis. Stat. § 30.01(1d) provides that a boathouse retains its status as a boathouse regardless of the current use of the structure. However, a provision was added to prevent the conversion of a wetbay to enable other uses of the boathouse. Many boathouses have been partially or completely converted to other uses and this provision makes it clear that such uses can continue. The boathouse provisions on repair and maintenance in Wis. Stat. § 30.121(1) were expanded to allow for repair of foundations and Wis. Stat. § 30.121(3c) was amended to allow for changes in configurations (such as the placement of windows and doors) as part of boathouse repair.
§2.02d(1) Bridges and Culverts -- Exemptions p. 72
2015 Wis. Act 55 broadened the exemption for the construction, maintenance and replacement of culverts if they are placed in the same location as the culvert being replaced. These provisions appear for exemptions under Wis. Stat. § 30.123(6)(d) and general permits under Wis. Stat. § 30.123(7)(b)
§2.03b (1) Enlargements p. 79
See also, stormwater ponds §2.03f (1)
§2.03e Shoreline Erosion Control Lakes -- General Permits p.83
2015 Wis Act 387 broadened the provisions governing general permits for the replacement of seawalls. See, Wis. Stat. § 30.12(3)(a)13.
§2.03f(1) Construction Sites Near Navigable Waters – Grading Permits, p. 86.
The second paragraph second sentence should read, “General permits are not available only if the site is located in or adjacent to a state natural area, a federal wild and scenic river or a state wild river.” (Corrected in the second printing)
§2.03f (1) Stormwater Ponds, p. 86.
In addition to the provisions in Wis. Stat. § 30.19, several other regulations can impact the location,
construction and maintenance of stormwater ponds.
In-line ponds. In 2009, the DNR took the position that the Clean Water Act prohibits locating stormwater retention ponds in navigable waters or wetlands. There are however cases which seem to support a contrary result. See, Ohio Valley Envtl Coalition v. Aracoma, 556 F. 3d 177, 186 (4th Cir 2009) and Williams Pipe Line Company v. Bayer, 964 F. Supp 1300 (S.D. Iowa 1997). Nevertheless, this restriction is now codified in Wis. Admin Code § NR 151.003(2). This rule provides that if a municipality builds a stormwater pond in a navigable water, it is not entitled to credit for the sediment reduction obtained from such a pond. Since ponds are normally built precisely for that purpose, this is a major practical barrier in addition to whatever restrictions the DNR may impose through the Chapter 30 permit process. There are exceptions to this restriction for non-navigable waters and intermittent navigable waters, as well as some facilities authorized before 2011.
2015 Wis Act 387 broadened the provision in NR 151.003 in two respects. First, Wis. Stat. § 281.16(2)(c) authorizes credit for in-line ponds for an artificial water regardless of whether it was navigable. Second a new provision, Wis. Stat § 30.19(4)(d) now requires DNR to consider the "sediment control in and water quality improvements to the watershed as a whole" from such ponds.
Stormwater pond sediment. Stormwater ponds need to be maintained and this often requires the
removal of accumulated sediment. Given the potential for contaminants in the sediment, Wis. Admin Code ch. NR 528 requires that removal of such sediment be tested and properly disposed. Where there is a low
potential for contaminants, testing can be limited or avoided. Where testing shows contaminants over certain specified “ceiling levels” the disposal of the sediment may be subject to additional limitations.
2015 Wis. Act 387 did however make the process of stormwater pond maintenance easier by exempting the dredging of such ponds from permits. See, Wis. Stat. § 30.19(1m)(dm). A parallel provision exempts maintenance of such ponds from the wetland permitting provisions. See. Wis. Stat. § 281.36(4)(f)
Bird Hazards. Stormwater ponds can attract birds. If the pond is close to an airport there can be safety concerns. Federal Aviation Administration (FAA) regulations at 14 C.F.R 139.337 address wildlife
hazards. The FAA, the U.S. Air Force, the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture - Wildlife Services signed a Memorandum of Agreement (MOA) in July 2003 to protect aviation from wildlife hazards. FAA Advisory Circular 150/5200-33B establishes water feature setbacks from airports that can extend as much as 5 miles from the airport. The placement of open water stormwater ponds may be limited as a
result.
