Highlights: introduction | issue identification | dam and river ecosystem basics | legal aspects | economic considerations | decision-making process | conclusions

Legal aspects

Please be advised that the information presented here should not be taken as legal advice, nor be used as interpretations of existing law; it is intended to educate the reader about the basics of dam repair versus removal decisions in reference to the legal definitions and requirements of the state of Wisconsin.

Legal regulation of dams in the state of Wisconsin can be traced back to the Milldam Act of 1840. The adoption of this act provided the authority for any person to erect a dam for the purpose of raising water to work it. Hundreds of milldams were constructed in Wisconsin under this act; although most are no longer used for milling, many are still in existence today.

It is essential that communities faced with a dam repair/removal decision become familiar with the regulatory framework and legal obligations associated with dams, including basic definitions and responsibilities of dam owners. A dam is any artificial barrier that is built across a waterway and that has the primary purpose of impounding or diverting water. Dams are regulated pursuant to Chapters 30 and 31 of the Wisconsin State Statutes. Chapter 31 requires that all dams be maintained in “good repair and condition.” Any dam that is found to be structurally inadequate will be ordered to be repaired or removed. As part of the dam regulatory program, all large dams must be inspected at least once every ten years. It is usually after this inspection that the issue of repair versus removal surfaces. The Wisconsin Department of Natural Resources is the agency in Wisconsin that regulates dams.

Communities may find themselves in one of the three following ownership scenarios when a decision concerning a dam structure arises:
 

1. the dam structure has no owner;
2. the dam owner is abandoning the structure for the purpose of removal; or
3. the community owns the dam.

Dam regulations in Wisconsin apply differently depending on dam ownership; thus, individuals and communities have several legal options to consider when making a decision to repair or remove. If a dam is ownerless, and the condition of the dam warrants it, the Wisconsin Department of Natural Resources will take action to remove it. However, a responsible party (either a community or an individual) may step forward and take ownership of the dam, provided the party can demonstrate the financial ability to maintain the dam. An owner may file for abandonment of a dam with the Wisconsin Department of Natural Resources and remove the dam. If a community owns a dam, it is up to the community to decide whether to repair or remove the dam.

In the case of removal, new land is usually uncovered when the impoundment is drained. Property owners adjacent to the impoundment may own parts of the newly uncovered land and regain access to it through dam removal. A review of the property title deeds is necessary to determine property ownership. Prior planning for use of this land should be conducted before the removal process to be sure that plans will abide by local and state zoning regulations.

Next section: Economic considerations
 

URL: http://www.ies.wisc.edu/research/wrm00/highlegal.htm