88.31 Special procedure in cases affecting navigable waters.

(1) If it is necessary to enter upon any waters that may be navigable, or to acquire and remove any dam or obstruction from the waters, or to clean out, widen, deepen or straighten any stream that may be navigable, the board shall file with the department of natural resources an application for a permit to do the work. The board shall file with the application any information that the board or the department of natural resources considers necessary. The department shall specify by rule the information to be included in an application. The application shall state that the public health or welfare will be promoted by the removal of the dam or other obstruction or by the straightening, cleaning out, deepening or widening of the waters and that other public rights in and public uses of the waters will not be materially impaired. The application shall be duly verified.

(2) Upon receipt of the application the department of natural resources shall fix a time and place for a hearing on the application, not less than 3 nor more than 8 weeks from the date of filing, at a place convenient to the interested parties. If the application is for a permit to remove a dam, notice of the hearing shall be given to all interested persons as provided by s. 31.06. In all other cases, the department shall direct the applicant to give notice under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (b).

(3) At the hearing on the application, all interested persons may appear and be heard. The department also may make an independent investigation of the situation.

(4) Upon the conclusion of the hearing and investigation, the department of natural resources shall grant the permit if it finds:

(a) That the public health and welfare will be promoted by the proposed removal of the dam or other obstructions or by the proposed straightening, cleaning out, deepening or widening of such waters; and

(b) That the proposed work is necessary to the proper operation of the proposed drainage system; and

(c) That the proposed work will not materially impair the navigability of any such waters and will not materially impair any other public right in or public uses of such waters. The enjoyment of natural scenic beauty is declared to be a public right to be considered along with other public rights.

(4m) The department of natural resources shall grant or deny the permit within 6 weeks after the conclusion of the hearing on the application.

(5) When granting a permit under this section the department of natural resources also shall establish the minimum level at which the affected waters may be maintained.

(6) The department of natural resources may require the applicant for the permit to submit a plan for the work to be done in the waters in question and may amend or modify such plan before approving it. The department may at any time, on the application of any interested person, further amend such plan when the same can be done without materially impairing the navigability of any such waters and without materially impairing any other public right.

(7) Upon granting a permit under this section, the department forthwith shall transmit to the secretary of the drainage board a copy of the permit and the relevant findings, orders and approved plans.

(7m) The Duck Creek Drainage District is exempt from the permit requirements and procedures under subs. (1) to (7).

(7r) A drainage district that is exempt from the individual and general permit requirements under s. 30.20 as specified under s. 30.20 (1g) (d) is exempt from the permit requirements and procedures under subs. (1) to (7) with respect to that removal.

(8) Subject to other restrictions imposed by this chapter, a drainage board which has obtained all of the permits as required under this chapter and ch. 30 may:

(a) Do all acts necessary in and about the surveying, laying out, constructing, repairing, altering the course of, enlarging, clearing, deepening, widening, protecting and maintaining any drain in, through, or upon such waters, both within and beyond the limits of the drainage district; and

(b) Procure, purchase or condemn by proceedings had under ch. 32, riparian rights, rights of flowage, dams and waterpowers in such waters, both within and beyond the limits of the drainage district.

(9) In all cases a drainage district is liable to the owner of riparian rights, rights of flowage, dams and waterpowers for all property taken and for all damages which may be occasioned to such property by reason of any work done on it. Such damages shall be determined either by agreement, award of damages or condemnation proceedings and shall be paid by the drainage district before the work is done in the same manner in which payments are made where lands are acquired by railroad companies under condemnation proceedings.

History: 1993 a. 456; 1999 a. 9; 2017 a. 115.