Section 1.06. Identification of public rights features.

 

(1)   Department to assess waters. To fulfill its affirmative duty to protect public trust waters, the department shall assess the state's public trust waters to identify locations of public rights features where activities shall require general or individual permit review in lieu of exemptions, or reasonable limitations on location to assure that the public's rights and interests under the public trust doctrine are protected, under ss. 30.12 (1p) (a) 3. and (2m) , 30.123 (6m) and (6s) , 30.20 (1k) (a) 2. and (1m) , 30.206 (1) (ag) , (3) and (3r) , Stats.

(2)   Exemptions not allowed. Due to the potential significant adverse impacts of the activity on public rights features, exemptions listed in ss. 30.12 (1g) (km) and 30.20 (1g) (b) 2. , Stats., are not allowed in locations where there are public rights features as described under sub. (5) . General or individual permits are required for those activities in locations of public rights features.

(3)   Exempt activities. For those activities that are not allowed in locations where there are public rights features as described under sub. (5) , a person may undertake an exempt activity after the person has evaluated the site and determined that the activity is not in the location of a public rights features as described under sub. (5) .

(4)   Department determination. For those activities that are not exempt or eligible for general permits in locations where there are public rights features as described in sub. (5) , the department will base determinations of whether activities are in locations of public rights features on information as specified in sub. (6) .

(5)   Public rights features identified. Public rights features are:

(a) Fish and wildlife habitat, including specific sites necessary for breeding, nesting, nursery and feeding.

(b) Physical features of lakes and streams that ensure protection of water quality.

(c) Reaches of bank, shore or bed that are predominantly natural in appearance (not man-made or artificial) or that screen man-made or artificial features.

(d) Navigation thoroughfares or areas traditionally used for navigation during recreational boating, angling, hunting or enjoyment of natural scenic beauty.

(6)   Basis of department determination. The department shall base its identification of public rights features on factual information obtained from reputable sources, including:

(a) Field surveys and inspections, including historical surveys for fish, wildlife, rare species, aquatic plants, geologic features or water quality.

(b) Surveys or plans from federal, state or local agencies.

(c) Factual documentation of features or use patterns from property owners, user groups or knowledgeable users on the waterbody.

(7)   Procedure for identifying public rights features .

(a) After survey data shows possible locations of public rights features, the department shall give notice in the official state newspaper or other local media the department selects in the area affected which is likely to inform the local residents. The department shall provide notice on its website and through its system of electronic notices to state media.

(b) The department shall notify the county clerk of any county bordering the lake or reach of a stream, legislators whose districts include the affected public waters and the chairpersons of the committees of the legislature with jurisdiction for natural resources issues, and local, regional or state lake, river or watershed organizations affected by the activity.

(c) The notice shall contain the location and description of the possible public rights features and the basis for its determination that the location is likely to contain public rights features. If a hearing is not requested in writing within 30 days after the mailing of the notice, the department may waive the hearing. Upon receipt of a request for a hearing, the department shall, not less than 10 days before the hearing, mail written notice thereof to each person notified under par. (b) , and shall provide notice on its website and through its system of electronic notices to state media.

(d) At each hearing, the department shall take evidence offered by persons in support of or in opposition to the determination. If the department finds any location not properly classified, the location may not be identified as the location containing public rights features.

(8)   Sensitive areas. Sensitive areas designated under s. NR 107.05 (3) (i) are determined to be public rights features.

(9)   Department website. The department shall maintain on its website and make available at its offices a consolidated list of waters with identified public rights features along with all other waters designated under this section as well as a visual guide to identification of public rights features to assist a person in determining the applicability of all exemptions or permit requirements under ch. 30 , Stats.

History: Emerg. cr. eff. 4-19-04; emerg. r. and recr. eff. 8-24-04; CR 04-066 : cr. Register April 2005 No. 592 , eff. 5-1-05; correction in (1) made under s. 13.92 (4) (b) 7. , Stats., Register December 2013 No. 696 ; correction in (2) made under s. 13.92 (4) (b) 7. , Stats., Register April 2016 No. 724 .

Note

Exemptions not allowed in locations of public rights features are: intake or outfall structures other than dry hydrants; replacement culverts with inside diameter not more than 24 inches; dredging without auxiliary power. However, new and existing piers may be exempt in areas with public rights features under s. 30.13 , Stats., as set forth in ch. NR 326 . Microsoft Windows NT 6.1.7601 Service Pack 1 Anyone undertaking a project in public waters is encouraged to seek a voluntary exemption determination as provided for in s. 30.12 (2r) , 30.123 (6r) or 30.20 (1r) , Stats. A one-page form for requesting a determination is available from department service centers and at the department's website at http://dnr.wi.gov under the topic "Waterway and Wetland Permits." Microsoft Windows NT 6.1.7601 Service Pack 1 As required by ch. NR 310 , the department will make reasonable efforts to determine whether sites that are the subject of exemption determination requests or general permit applications are locations of public rights features and will notify requestors or applicants. Microsoft Windows NT 6.1.7601 Service Pack 1 Physical features constituting fish and wildlife habitat include stands of aquatic plants; riffles and pools in streams; undercut banks with overhanging vegetation or that are vegetated above; areas of lake or streambed where fish nests are visible; large woody cover. Microsoft Windows NT 6.1.7601 Service Pack 1 Physical features that protect water quality include stands of aquatic plants (that protect against erosion and so minimize sedimentation), natural streambed features such as riffles or boulders (that cause turbulent stream flow and so provide aeration). Microsoft Windows NT 6.1.7601 Service Pack 1 Reaches include those with stands of vegetation that include intermixed trees, shrubs and grasses; stands of mature pines or other conifer species; bog fringe; bluffs rising from the water's edge; beds of emergent plants such as wild rice, wild celery, reeds, arrowhead. Microsoft Windows NT 6.1.7601 Service Pack 1 Physical features indicative of navigation thoroughfares include shallow water areas typically used by wading anglers or areas frequently occupied by regularly repeated public uses such as water shows. Microsoft Windows NT 6.1.7601 Service Pack 1 Lakes and streams specifically named in the Wisconsin Land Legacy Report, publication number LF-001-2004 are known to contain extensive public rights features. Persons considering activities in these lakes and streams should consult the department before undertaking activities to determine whether they are in public rights features. Microsoft Windows NT 6.1.7601 Service Pack 1 See the department's website at http://dnr.wi.gov under the topic "Waterway and Wetland Permits." Microsoft Windows NT 6.1.7601 Service Pack 1