Critical Habitat Designations

Assuring Public Rights in Waters of the State

Our state Constitution guarantees that the waters of Wisconsin are held in trust for all of the state’s citizens. All Wisconsin citizens have the right to boat, fish, hunt, ice skate, and swim on navigable waters, as well as enjoy the natural scenic beauty of navigable waters, and enjoy the quality and quantity of water that supports those uses.

Wisconsin has developed broad regulations related to structures in and alterations to our public waters. These regulations have been developed to make sure that we comply with our state Constitution, statutes and relevant legal case law. In 2004 the Legislature restructured the State’s water regulations. These simplified regulations allowed:

• Exemptions – activities that do not need permits
• General Permits – establishes standards and minimizes Department review
• Individual Permits - complex projects that require more detail review

Critical Habitat Designation – The Program

Every waterbody has critical habitat – those areas that are most important to the overall health of the aquatic plants and animals. Remarkably, eighty percent of the plants and animals on the state’s endangered and threatened species list spend all or part of their life cycle within the near shore zone. As many as ninety percent of the living things in lakes and rivers are found along the shallow margins and shores. Wisconsin law mandates special protections for these critical habitats. Critical Habitat Designation is a program that recognizes those areas and maps them so that everyone knows which areas are most vulnerable to impacts from human activity. A critical habitat designation assists waterfront owners by identifying these areas up front, so they can design their waterfront projects to protect habitat and ensure the long-term health of the lake they where they live.

Areas are designated as Critical Habitat if they have Public Rights Features, Sensitive areas or both. Public rights features (defined in NR 1.06, Wis. Adm. Code) include the following:

1. Fish and wildlife habitat;
2. Physical features of lakes and streams that ensure protection of water quality;
3. Reaches of bank, shore or bed that are predominantly natural in appearance;
4. Navigation thoroughfares; and
5. Sensitive Areas. Sensitive Areas are defined in Ch. NR 107 as: areas of aquatic vegetation identified by the department as offering critical or unique fish and wildlife habitat to the body of water.

Critical Habitat Designation – The Process

Selection of waters for Critical Habitat Designation is generally done as part of the Department’s biennial work planning process. This selection contemplates three basic factors:

1. quality of the resource;
2. amount of knowledge and information the Department holds regarding the water body; and
3. current and future risks of the resource to riparian development and in-lake activities.

After a lake is selected, DNR field staff, compile and review the most current scientific data about the water body. Data is also solicited from local units of government, conservation organizations, federal agencies, local businesses and anyone who may have resource knowledge and information. This information is used to assemble maps to identify targets of focus related to fish, wildlife, endangered resources, and their habitats.

Next, DNR staff conduct field work and surveys to identify public rights features on the lake and delineate their extent. The resulting maps and supporting data are compiled into a draft Critical Habitat Designation report, which is posted on the Department’s website for public review. DNR must also give notice of the draft report to the local media, the county clerk, and legislators. If requested or if concerns are anticipated, DNR typically holds informational meetings to answer questions and receive comments. Once public comment is received and the report is complete, Critical Habitat Designations are posted on the DNR website.

How does this program affect Waterfront Owners?

Critical Habitat Designations provide advance information to waterfront owners, to clarify the regulations that will apply when they want to do a construction project or activity along their shoreline. If a project is proposed in a designated Critical Habitat area, the permit jurisdiction or the permit process may change. This allows DNR to ensure that proposed projects will not harm these sensitive resources. Here are some simple examples:

• Grading – Permits are required for any project that involves more than 10,000 square feet of land disturbance on the bank of a waterway (typically within 75 feet of the bank). If the project is located in a designated Critical Habitat area, the permit jurisdiction changes to include all areas within 300 feet of the shoreline.
• Structures – Some projects to place structures in a waterway are exempt, and don’t require a permit. However, if the project is located in a designated Critical Habitat area, a general permit or individual permit may be required. For example, riprap repair or replacement is generally exempt from permitting if specific design criteria are met. However, repair or replacement of existing riprap within or adjacent to a sensitive area is not exempt and requires a permit. Additionally, sensitive area designations are a consideration in the analysis of individual permit applications.
• Aquatic Plant Management - DNR may deny permits for chemical treatment for aquatic plant management if the proposed chemical application is in a sensitive area, unless DNR determines that it can occur without ecological impacts. Manual removal of plants is normally exempt from permit. However, manual removal within a sensitive area is not exempt and is subject to a permit requirements. (Note, this regulation preceded the 2004 change in waterway regulations noted above)