Section NR 300.17 - Navigability and ordinary high water mark determinations(1) TYPES OF DETERMINATIONS. Any person who owns or leases land or acting as an agent of the property owner may request that the department provide any of the following determinations for the fee specified under sub. (3): (a) A navigability determination based on an on-site inspection of the land by the department of whether a waterbody is navigable. The department shall provide a navigability determination in writing for an individual waterbody within a project boundary. Note: A navigability determination is the appropriate service for a stakeholder seeking a watercourse determination.
(b) An ordinary high water mark determination based on an on-site inspection of the land by the department of the ordinary high water mark for an individual waterbody on a property.(c) A navigability confirmation, which is a service the department provides to concur with the navigability of a waterbody as preliminarily determined by an independent third party. The preliminary navigability determination is prepared by an independent third party and meets the minimum submittal requirements specified in sub. (2). If the department concurs with the preliminary navigability determination completed by the independent third party, the department's confirmation becomes the state's legal determination and the confirmation shall also include the exact location and summarize the information used to make this determination. If the department does not agree with the preliminary navigability determination as presented by the independent third party, the department may request the necessary information from the independent third party needed for the determination decision to be confirmed by the department, or the department may follow up with a site inspection to make the final determination for navigability.(d) An ordinary high water mark confirmation, which is a service the department provides to concur with an ordinary high water mark determination of a waterbody as determined by an independent third party. The ordinary high water mark determination is prepared by an independent third party and meets the minimum submittal requirements specified in sub. (3). If the department concurs with the ordinary high water mark determination completed by an independent third party, the department's confirmation shall also include the exact location and summarize the information used to make this determination. If the department does not agree with the preliminary ordinary high water mark determination as presented by the independent party, the department may request the necessary information from the third party needed for the determination decision to be confirmed by the department, or the department may follow up with a site inspection to make the final determination for the ordinary high water mark. Note: For zoning purposes, a person should request services in this section from their local zoning authority.
Note: An ordinary high water mark or navigability determination must be either completed by the department or confirmed by the department before it can be used for department regulatory decisions.
(e) Requests for a service under pars. (a) to (d) shall be submitted in the manner and form specified by the department, for the service.(f) A person may request that the department complete a navigability-in-fact determination if the person disputes the navigability determination under par. (a) or (c). The department shall use a watercraft to confirm the navigability of the waterway. A requester shall comply with the declaratory ruling process specified in s. 227.41, Stats.(2) MINIMUM NAVIGABILITY SUBMITTAL REQUIREMENTS. Minimal submittal requirements must be provided to the department in order to submit a navigability confirmation request under sub. (1) (c). The minimum submittal requirements shall include all of the following: (a) Exact location of the preliminary determination.(b) Summary of findings and preliminary result.(c) Historical data including aerial imagery, topography, and survey data.(d) Current topographic information.(e) Hydrologic conditions including bank height, bed width, and water depth.(f) Weather conditions prior to gathering field data.(g) Biological characteristics of the waterway.(i) Other information specified by the department.(3) MINIMUM ORDINARY HIGH WATER MARK SUBMITTAL REQUIREMENTS. Minimum submittal requirements must be provided to the department in order to submit an ordinary high water mark confirmation request under sub. (1) (d). The minimum submittal requirements shall include all of the following: (a) Exact location of the preliminary determination.(b) Summary of findings and preliminary result.(c) Vegetation types above and below the preliminary ordinary high water mark.(d) Factors affecting location of the ordinary high water mark such as structures, shore protection and shore configuration.(e) Weather conditions prior to gathering field data.(f) Distance from the ordinary high water mark to the water's edge.(g) Preliminary ordinary high water mark elevation and benchmark information.(i) Other information specified by the department.(4) SERVICE REQUESTS. (a) Except as provided in par. (b), a person who seeks a service from the department under sub. (1) shall submit this request through the department electronic permitting system or other submittal process specified by the department and shall provide all the information in sub. (2) or (3). The department shall maintain service requests forms consistent with the minimum submittal requirements in subs. (2) and (3) and shall provide a copy of the form to any person upon request. This copy may be provided electronically.(b) The department may dismiss service requests for requests that do not have proper site indicators or information to meet the minimum submittal requirements.(5) GENERAL FEES. The department may charge the following fees for services: (a) The application fee for an ordinary high water mark determination under sub. (1) (b) is $200 for each project boundary.(b) The application fee for a navigability determination under sub. (1) (a) is $200 for each waterway within a project boundary.(c) The total application fee for both an ordinary high water mark and a navigability determination under pars. (a) and (b) is $300 for each waterbody within a project boundary.(d) The application fee for an ordinary high water mark confirmation under sub. (1) (d) is $100.(e) The application fee for a navigability determination under sub. (1) (c) is $100.(f) The application fee for a navigability-in-fact determination under sub. (1) (f) is $800.(g) The department may utilize an electronic payment system for collecting payment. The department may impose a $3 service fee to use the electronic payment system.(6) EXPEDITED FEES. The department may charge a supplemental fee for service under sub. (1) that is an expedited service fee of $3,500 in addition to fees charged under sub. (5) if all of the following apply: (a) The applicant requests in writing that the service be provided within a time period that is shorter than the time limit specified under sub. (7) for that type of service.(b) The department verifies that it will be able to comply with the request.(7) TIMELINE. (a) Except as provided under pars. (c) and (d), the department shall do all of the following: 1. Provide a navigability determination or ordinary high water mark determination under sub. (1) (a) or (b) no later than 60 days after a person files a request, in the manner and form required by the department, for the service.2. Provide a navigability confirmation or ordinary high water mark confirmation under sub. (1) (c) or (d) no later than 30 days after a person files a request, in the manner and form required by the department, for the service.(c) If adverse weather conditions, or other conditions at the site, prevent the department from conducting an accurate on-site inspection necessary for making the determination under sub. (1) in sufficient time to comply with the deadline under par. (a) 1. or 2., the department shall give notice to the person requesting the service that adverse weather conditions, or other conditions at the site, will prevent the department from complying with the deadline and give notice to the person that the department will provide the service as soon as possible when weather conditions, or other conditions at the site, allow the department to conduct an accurate on-site inspection. Note: Adverse weather conditions may include severe flood or drought conditions or other weather patterns that make gathering accurate on-site information infeasible.
(d) If a person fails to submit all information required for the service request under sub. (1) (c) or (d), the department may request additional information. The department may not ask for additional information more than once. The timeline under par. (a) 1. will be on hold until this additional information request is satisfied. Note: An ordinary high water mark or navigability determination must be either completed by the department or confirmed by the department before it can be used for department regulatory decisions.
(8) EXCLUSIONS. The services specified in sub. (1) are not available if any of the following apply: (a) The waterbody in question is on Lake Michigan, Lake Superior, outlying waters as defined in s. 29.001(63), Stats., waterbodies subject to submerged land lease pursuant to s. 24.39(4) (d), Stats., or waterbodies with approved bulkhead line pursuant to s. 30.11, Stats.(b) A court order has specified the ordinary high water mark or navigability determination for the area in question.(c) The request is related to a project where only local regulations are applicable. Note: Projects only subject to shoreland setback should pursue compliance with local regulations only and would not be appropriate for this service.
(9) MEMORANDUM OF AGREEMENT. The department may negotiate with municipalities, the U.S. army corps of engineers, and other governmental entities to enter into a memorandum of agreement that provides navigability and ordinary high water mark determinations through alternative means and methods in lieu of the process, timelines, and fees specified subs. (2) to (7). Note: Municipalities may make ordinary high water mark or navigability determinations for the purposes of implementing their own regulatory or zoning programs.
(10) LENGTH OF VALIDITY. (a) Except as provided under s. 30.10(2) (b), Stats., navigability determinations and confirmations under sub. (1) (a) and (c) are valid in perpetuity unless a requestor or the department can demonstrate that water level fluctuations, land use changes, or other factors that significantly change hydrology or fluvial geomorphology at the site have caused the characteristics of a navigable waterway to be to be substantially altered since a previous department determination.(b) Ordinary high water mark determinations and confirmations under sub. (1) (b) and (d) are valid for a period of 5 years unless a requestor or the department can demonstrate that physical ordinary high water mark indicators have substantially changed due to natural processes since a previous department determination was made.Wis. Admin. Code Department of Natural Resources NR 300.17
Adopted by, CR 22-013: cr. Register June 2023 No. 810, eff. 7-1-23; correction in (1) (c), (d), (2) (intro.), (3) (intro.), (4) (a), (6) (intro.), (8) (a) made under s. 35.17, Stats., and correction in numbering in (2), (6), (7) made under s. 13.92 (4) (b) 1. Register June 2023 No. 810, eff. 7/1/2023