31.02 Powers and duties of department.

(1) The department, in the interest of public rights in navigable waters, to promote safety, and to protect life, health, property, property values, and economic values may regulate and control the level and flow of water in all navigable waters and may erect, or may order and require bench marks to be erected, upon which shall be designated the maximum level of water that may be impounded and the lowest level of water that may be maintained by any dam heretofore or hereafter constructed and maintained and which will affect the level and flow of navigable waters; and may by order fix a level for any body of navigable water below which the same shall not be lowered except as provided in this chapter; and shall establish and maintain gauging stations upon the various navigable waters of the state and shall take other steps necessary to determine and record the characteristics of such waters.

(2) The department may investigate and determine all reasonable methods of construction, operation, maintenance, and equipment for any dam so as to conserve and protect all public rights in navigable waters and so as to protect life, health and property; and the construction, operation, maintenance and equipment, or any or all thereof, of dams in navigable waters shall be subject to the supervision of the department and to the orders and regulations of the department made or promulgated under this chapter.

(3) The department or any member or any agent or employee thereof shall at all times be accorded free access to any and all parts of any dam and appurtenances constructed or maintained in navigable waters and may enter upon any property to investigate a waterway or use of water from any lake or stream.

(4) The department may order and require any dam heretofore or hereafter constructed to be equipped and operated, in whole or part, as follows:

(a) With slides and chutes for the passage of logs and timber products.

(b) With a lock, boat hoist, marine railway or other device of a size and construction sufficient to accommodate navigation.

(c) With good and sufficient fishways or fish ladders, or in lieu thereof the owner may be permitted to enter into an agreement with the department to pay for or to supply to the state of Wisconsin annually such quantities of game fish for stocking purposes as may be agreed upon by the owner and the department.

(d) With spillways or flood gates capable of permitting the passage through or over the same of freshets and floods during all seasons of the year.

(e) With booms, piers or other protection works ample to safeguard flood gates from trash or other floating material.

(4d) The department may not issue, amend, or revise an order under this section or under s. 182.71 (7) (b) with respect to a dam that, on June 1, 2015, met all of the following conditions unless the appropriate standing committee in each house of the legislature, as determined by each presiding officer, approves the order, amendment, or revision:

(a) The dam regulated the water levels of one or more lakes located in Vilas County.

(b) The dam was located in whole or in part in a city, village, or town with an equalized value exceeding $500,000,000.

(c) The dam's impoundment area at normal pool elevation exceeded 4,000 acres.

(d) The dam was continuously subject to a lake level order for a period of at least 40 years.

(4g) The department may not impose the requirement under sub. (4) (c) on an owner of a dam unless all of the following apply:

(a) The rules promulgated under sub. (4r) are in effect.

(b) The federal government or the state implements a program to provide cost-sharing grants to owners of dams for equipping dams with fishways or fish ladders and a grant is available to the dam owner under the program.

(4r) The department shall promulgate rules specifying the rights held by the public in navigable waters that are dammed. The rules shall include provisions on the rights held by the public that affect the placement of fishways or fish ladders in navigable waters that are dammed.

(5) The department shall give written notice to the public service commission of any hearing under this chapter involving public utilities.

(6) Except as provided in sub. (7m), the department may operate, repair and maintain the dams and dikes constructed across drainage ditches and streams in drainage districts, in the interest of drainage control, water conservation, irrigation, conservation, pisciculture and to provide areas suitable for the nesting and breeding of aquatic wild bird life and the propagation of fur-bearing animals.

(7) The department shall confer with the drainage commissioners in each drainage district on the formation of policies for the operation and maintenance of the dams; in districts having no commissioners, the department shall confer in like manner with the committee appointed by the county board, if any, to represent either such drainage district, or in the event that the drainage district is dissolved, to represent the interests of the county in all matters whatsoever pertaining to water conservation and control within the area which theretofore constituted such drainage district. This subsection does not apply to the Duck Creek Drainage District.

(7m) The drainage board for the Duck Creek Drainage District shall operate, repair and maintain dams, dikes and other structures in district drains that the board operates in the Duck Creek Drainage District in compliance with ch. 88 and any rules promulgated by the department of agriculture, trade and consumer protection under ch. 88. If a county drainage board fails to perform its duties under this subsection, the department of natural resources may exercise its authority under subs. (6), (8) and (9).

(8) The department shall give careful consideration to the suggestions of the drainage commissioners or committee of the county board, but the final decision in all matters under consideration shall rest with the department.

(9) So far as seems practicable, the department may designate or employ the drainage commissioners of any drainage district, or the committee of the county board above referred to, to operate the dams in such district or area formerly comprising a drainage district or perform services in the repair and maintenance of the dams, dykes and other works.

History: 1999 a. 9; 2001 a. 105; 2007 a. 96; 2015 a. 55, 387.

Ordering a riparian owner to excavate and maintain a ditch to regulate lake levels was an unconstitutional taking of property. Otte v. DNR, 142 Wis. 2d 222, 418 N.W.2d 16 (Ct. App. 1987).

Sub. (1), 2011 stats., makes a distinction between the DNR's public trust authority and its police power authority. Only part of sub. (1) embodies the public trust doctrine. If the statute read only that the department “in the interest of public rights in navigable waters," may regulate and control the level and flow of water in all navigable waters, the statute would be seen as a direct enforcement mechanism for the public trust in navigable waters. But department authority to regulate and control the flow of water in all navigable waters “to promote safety and protect life, health and property" following “or," gives distinct and different authority to consider interests affected by the level of the navigable waters. Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

DNR may consider wetland water quality standards in Wis. Admin. Code ch. NR 103 when making a water level determination under sub. (1), 2011 stats. Section 281.92, 2011 stats., does not preclude the DNR from applying the wetland water quality standards in ch. NR 103 or other parts of ch. 281, when appropriate, after weighing factors under sub. (1). Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

It is unreasonable to conclude, given the history, context, and interpretations of “protect . . . property," that economic impacts cannot be considered when making a water level determination under sub. (1), 2011 stats. Rock-Koshkonong Lake District v. Department of Natural Resources, 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800, 08-1523.

Artificial lakes and land subdivisions. Kusler, 1971 WLR 369.

A Breach of Trust: Rock-Koshkonong Lake District v. State Department of Natural Resources and Wisconsin's Public Trust Doctrine. Mittal. 98 MLR 1468 (2015).