Wis. Admin. Code Department of Natural Resources NR 117.03

Current through October 28, 2024

Section NR 117.03 - Definitions

For the purpose of this chapter:

(1) "City planning agency" means a city plan commission created under s. 62.23(1), Stats., a board of public land commissioners created under s. 27.11, Stats., or a committee of the city council which acts on matters pertaining to city planning.

(2) "Department" means the department of natural resources.

(3) "Environmental control facility" means any facility, temporary or permanent, which is reasonably expected to abate, reduce or aid in the prevention, measurement, control or monitoring of noise, air or water pollutants, solid waste and thermal, radiation or other pollutants, including facilities installed principally to supplement or to replace existing property or equipment not meeting or allegedly not meeting acceptable pollution control standards or which are to be supplemented or replaced by other pollution control facilities.

(4) "Farm drainage ditch" means any artificial channel which drains water from lands which are currently used for agricultural purposes.

(5) "Floodplain" means the land which has been or may be covered by flood water during the "regional flood," as that term is defined in s. NR 116.03. The floodplain includes the floodway and the flood fringe.

(6) "High-water mark" means the mark left by water at its highest level.

(7) "Navigable water" or "navigable waters," as defined in s. 281.31(2) (d), Stats., means Lake Superior, Lake Michigan, all natural inland lakes within this state and all streams, ponds, sloughs, flowages and other waters within the territorial limits of this state, including the Wisconsin portion of boundary waters, which are navigable under the laws of this state. Notwithstanding any other provision of law or administrative rule, a shoreland zoning ordinance required under s. 59.692, Stats., and this chapter or a wetland zoning ordinance required under s. 61.351 or 62.231, Stats., and this chapter does not apply to lands adjacent to farm drainage ditches if:

(a) Such lands are not adjacent to a natural navigable stream or river;

(b) Those parts of the drainage ditches adjacent to these lands were nonnavigable streams before ditching; and

(c) Such lands are maintained in nonstructural agricultural use.

Note: In Muench v. Public Service Commission, 261 Wis. 492 (1952), the Wisconsin Supreme Court held that a stream is navigable in fact if it is capable of floating any boat, skiff or canoe of the shallowest draft used for recreational purposes. In DeGayner and Co., Inc. v. Department of Natural Resources, 70 Wis.2d 936 (1975), the court also held that a stream need not be navigable in its normal or natural condition to be navigable in fact. The DeGayner opinion indicates that it is proper to consider artificial conditions, such as beaver dams, where such conditions have existed long enough to make a stream useful as a highway for recreation or commerce, and to consider ordinarily recurring seasonal fluctuations, such as spring floods, in determining the navigability of a stream.

(8) "Ordinary high-water mark" means the point on the bank or shore up to which the presence and action of surface water is so continuous as to leave a distinctive mark such as by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristics.

Note: Where the bank or shore of any particular place is of such character that it is difficult or impossible to ascertain where the point of ordinary high-water mark is, recourse may be had to the opposite bank of a stream or to other places on the shore of a lake or flowage to determine whether a given stage of water is above or below the ordinary high-water mark.

(9) "Shorelands", as defined in s. 59.692(1) (b), Stats., means the area within the following distances from the ordinary high-water mark of navigable waters, as defined in s. 281.31(2) (d), Stats.:

(a) One thousand feet from a lake, pond or flowage. If the navigable water is a glacial pothole lake, this distance shall be measured from the high-water mark of the lake.

Note: The water level in a glacial pothole lake may remain above the "ordinary high-water mark" several years after flooding, resulting in a "high-water mark" which is above the "ordinary high-water mark." However, there would be no practical difference between the "high-water mark" of a glacial pothole lake and the "ordinary high-water mark" of a glacial pothole lake where the effects of such flooding are no longer evident.

(b) Three hundred feet from a river or a stream or to the landward side of the floodplain, whichever distance is greater.

(10) "Special exception (conditional use)" means a use which is permitted by a zoning ordinance provided that certain conditions specified in the ordinance are met and that a permit is granted by the board of appeals or, where appropriate, the city or village planning agency or governing body.

(11) "Village planning agency" means a village planning commission created under ss. 61.35 and 62.23(1), Stats., or a committee of the village board which acts on matters pertaining to village planning.

(12) "Wetland", as defined in s. 23.32(1), Stats., means an area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.

Wis. Admin. Code Department of Natural Resources NR 117.03

Cr. Register, November, 1983, No. 335, eff. 12-1-83; correction in (9) made under s. 13.93(2m) (b) 7, Stats., Register, September, 1995, No. 477; corrections in (7) and (9) made under s. 13.93(2m) (b) 1 and 7., Stats., Register, October, 1999, No. 526.