G3622 Wisconsin Water Law A Guide to Water Rights and Regulations SECOND EDITION Paul G. Kent Tamara A. Dudiak Wisconsin Water Law A Guide to Water Rights and Regulations Paul G. Kent Tamara A. Dudiak University of Wisconsin-Extension Cooperative Extension University of Wisconsin-Stevens Point Copyright ©2001 by the Board of Regents of the University of Wisconsin System Contents Second Edition Foreword, p. viii Acknowledgments for the Second Edition, p. ix First Edition Forward, p. x About the authors, p. xii Chapter 1 Water Rights: Definitions, p. 1 Classifying Water Resources, p. 1 Natural Streams and Lakes, p. 2 Artificial Streams and Lakes, p. 2 Diffused Surface Water, p. 3 Groundwater, p. 3 Wetlands, p. 3 Navigability, p. 4 Water Boundaries, p. 5 Ordinary High Water Mark, p. 5 Meander Lines, p. 6 Bulkhead Lines, p. 6 Chapter 1 Notes, p. 7 Chapter 2 Public and Private Rights in Surface Waters, p. 11 Public Rights in Surface Waters – the Public Trust Doctrine, p. 11 Development of the Trust Doctrine, p. 11 Scope of the Public Trust, p. 12 Public Access Limitations, p. 12 Private Rights in Surface Waters – Riparian Rights, p. 13 Ownership and Use Rules for Natural and Artificial Surface Waters, p. 15 Delineating Riparian Lands, p. 16 Changes in Water Boundaries, p. 16 Conveyance of Lake Bed, p. 17 Chapter 2 Notes, p. 19 ii Wisconsin Water Law – A Guide to Water Rights and Regulations Chapter 3 Regulatory Jurisdiction Over Waters, p. 23 State Regulations, p. 23 Regulatory Authority, p. 23 State Agencies, p. 24 Local Government Regulation, p. 24 Types of Local Government, p. 24 Regulatory Authority, p. 25 Federal Regulations, p. 26 Regulatory Authority, p. 26 Federal Agencies, p. 27 Interstate Compacts and Agreements, p. 27 Tribal Regulations, p. 28 Tribal Jurisdiction, p. 28 Tribal Jurisdiction on Reservation Land, p. 29 Tribal Jurisdiction on Off-Reservation Land, p. 30 Chapter 3 Notes, p. 32 Chapter 4 Shoreland and Floodplain Management Issues, p. 37 Agencies Regulating Activities in Shorelands and Floodplains, p. 37 Zoning Restrictions on Shoreland Development, p. 38 Scope of Shoreland Zoning, p. 38 Shoreland Zoning Requirements, p. 39 Lake Classification, p. 41 Shoreland Zoning Administration, p. 42 State Regulation of Shoreland Activities, p. 43 Scope of State Regulations, p. 43 Regulation of Specific Activities, p. 44 Grading on Banks, p. 44 Constructing a Pond, p. 45 Beach Development, p. 45 Erosion Control and Riprap Placement, p. 45 Boat Shelters and Boathouses, p. 46 Regulation of Floodplain Areas, p. 47 Requirements for Floodplain Zoning, p. 47 Delineation of the Floodplain, p. 47 Floodplain Restrictions, p. 49 Floodways, p. 49 Floodfringe, p. 50 Chapter 4 Notes, p. 51 Wisconsin Water Law – A Guide to Water Rights and Regulations iii Chapter 5 Lake and Stream Management Regulations, p. 57 Agencies Regulating Activities in Streams and Lakes, p. 57 Regulations that Apply to the Placement of Structures and Fills in Streams and Lakes, p. 58 General State and Federal Requirements, p. 58 Regulation of Specific Structures and Fill Activities Under Chapter 30, p. 58 Piers and Wharfs, p. 59 The Need for a Permit, p. 59 Riparian Zones, p. 61 Permit Standards, p. 62 Riparian Easements and Dockominiums, p. 63 Pilings and Other Structures, p. 64 Fish and Bird Habitat Structures, p. 64 Water Ski Platforms and Jumps, p. 64 Fishing Rafts, p. 65 Swimming Rafts, p. 65 Fords and Boat Landings, p. 65 Bridges and Culverts, p. 65 Dredging, Construction and Alteration of Waterways, p. 67 Dredging Requirements, p. 67 Construction and Alteration of Waterways, p. 67 Surface Water Withdrawal, p. 68 Diversions for Irrigation or to Maintain Water Levels, p. 69 Large Scale Diversions, p. 70 Boating Regulations, p. 70 Fish and Aquatic Life Management, p. 71 Regulation of Fishery Resources, p. 71 Aquatic Plant Management, p. 72 Chapter 5 Notes, p. 73 Chapter 6 Dams and Flowages, p. 79 Agencies Regulating Dams, Flowages, and Artificial Ponds, p. 79 Regulations that Apply to the Construction and Operation of Dams, p. 80 General State Law Requirements, p. 80 Special State Provisions for Mill Dams and Cranberry Dams, p. 81 Federal Law Requirements, p. 81 iv Wisconsin Water Law – A Guide to Water Rights and Regulations Public and Private Rights in Flowages, p. 82 Rights of the Dam Owner to Create a Flowage, p. 82 Public and Private Rights to Flowed Lands, p. 83 Removal and Abandonment of Dams, p. 83 Regulatory Restrictions on Dam Removal, p. 84 Private Rights in Maintaining Dams, p. 84 Regulation of Lake Levels, p. 85 Chapter 6 Notes, p. 86 Chapter 7 Water Drainage, p. 91 Agencies Regulating Water Drainage, p. 91 Private Rights of Drainage, p. 91 Common Law Rights, p. 91 Statutory Rules Governing Drainage, p. 93 Private Drains, p. 93 Road and Railroad Embankments, p. 93 Drainage Obstructions, p. 93 Cranberry Law Provisions, p. 94 Drainage Districts, p. 94 Chapter 7 Notes, p. 97 Chapter 8 Discharges of Pollutants to Surface Waters, p. 99 Agencies that Regulate Pollutant Discharges to Surface Waters, p. 99 Regulation of Discharges to Surface Water, p. 100 Persons Required to Obtain a Discharge Permit, p. 100 Discharge Permit Limits, p. 101 WPDES Permit Process, p. 102 Enforcement of Permit Limits, p. 103 Regulation of Discharges to Public Sewers, p. 104 Discharge Permit Limits, p. 104 Operation and Financing of POTWs and Sewerage Systems, p. 104 Sewer Service Areas, p. 105 Wastewater Treatment Plant Approvals, p. 106 Regulation of Stormwater and nonpoint Discharges, p. 107 nonpoint Planning under the Clean Water Act, p. 108 Priority Watershed Program, p. 109 Wisconsin Water Law – A Guide to Water Rights and Regulations v Agricultural nonpoint Programs, p. 109 Livestock Operations, p. 109 Soil Erosion Control, p. 110 Urban nonpoint Regulations and Stormwater Management, p. 111 Stormwater from Industrial Sites and Construction Sites, p. 111 Municipal Stormwater Management, p. 112 Proposed nonpoint Source Redesign, p. 113 Agricultural nonpoint Redesign, p. 114 Urban nonpoint Redesign, p. 115 Common Law Restrictions on Discharges to Surface Waters, p. 115 Chapter 8 Notes, p. 117 Chapter 9 Groundwater Law, p. 125 Agencies Regulating Groundwater, p. 125 Groundwater Withdrawal, p. 125 Common Law Restrictions, p. 125 Groundwater Withdrawal Regulations, p. 126 Standards that Apply to Groundwater Quality, p. 126 Drinking Water Standards, p. 126 State Groundwater Standards, p. 127 Local Zoning, Wellhead Protection, and Source Water Assessment, p. 128 Capacity Development Program, p. 129 Regulation of Activities to Prevent Contamination, p. 129 Remedies for Contaminated Groundwater, p. 129 Regulatory Responses to Contaminated Groundwater, p. 130 Well Compensation Program, p.131 Chapter 9 Notes, p. 133 Chapter 10 Wetland Regulations, p. 137 Agencies Regulating Wetlands, p. 137 Wetland Definitions, p. 138 Federal Regulation Under Section 404, p. 139 Wetlands Regulated Under Section 404, p. 139 Individual Permits, p. 139 General Permits, p. 140 vi Wisconsin Water Law – A Guide to Water Rights and Regulations Nationwide Permits, p. 140 General Regional Permits, p. 141 State Water Quality Certification of Section 404 Permits, p. 142 Federal Regulation of Agricultural Practices in Wetlands, p. 143 Section 404 Provisions, p. 143 Swampbuster Provisions, p. 143 Local Regulation – Shoreland/Wetland Zoning, p. 144 Scope of Shoreland/Wetland Zoning, p. 144 Implementation of Shoreland/Wetland Zoning Ordinances, p. 145 DNR Review and Approval, p. 146 State Wetland Regulations, p. 147 DNR General Wetlands Policy, p. 147 NR 103 – Water Quality Standards for Wetlands, p. 147 Wetland Mitigation, p. 149 Chapter 10 Notes, p. 150 Chapter 11 Remedies, p. 155 Remedies Available Through Private Lawsuits, p. 155 Property Right Actions, p. 155 Common Law Tort Actions, p. 156 Tort Law Remedies, p. 157 Remedies Available Through Participation in Permit Proceedings, p. 158 Public Hearings, p. 158 Contested Case Hearing, p. 158 Judicial Review, p. 159 Local Proceedings, p. 160 Enforcement Proceedings, p. 162 Chapter 11 Notes, p. 164 Appendices Index of Key Words, p. 168 Appendix A: Agency Contacts, p. 173 Appendix B: Selected DNR and Extension Publications on Water Rights and Regulations, p. 179 Appendix C: Bibliography, p. 184 Table of Wisconsin Regulatory Authorities by Activity, p. 186 Index of Cases, p. 188 Index of Statutes and Regulations, p. 197 Wisconsin Water Law – A Guide to Water Rights and Regulations vii Foreword to Second Edition: When this volume was originally conceived by Professor Donald Last, the hope was that this volume would serve both as a readable primer for the general public as well as a reference for public officials, lawyers and others with water law questions. As this volume approached its five year point, it became clear that there were enough changes in the law that the usefulness of this volume was beginning to fade. Don then spearheaded an effort to update the original volume, resulting in this collaborative effort between the original author, Attorney Paul Kent, and Tamara Dudiak, an attorney and lake management specialist at UW–Extension and the University of Wisconsin–Stevens Point. This volume attempts to capture some of the significant change in water law for the past five years, including shoreland zoning, nonpoint pollution control and wetland regulation. It also provides expanded treatment of some areas which have become more controversial in recent years, including the scope of water law jurisdiction by Indian tribes, DNR’s policy with respect to piers and similar lake structures, and municipal sewer service issues. However, some of the most important changes are only found in the footnotes and references. Significant statutory renumbering has taken place since the first edition and all statutory references have been updated. In addition, new case law and other new resources including general web sites are now included as part of this reference. Paul G.