Issue identification module: introduction | social issues | historical issues | aesthetic issues | economic issues | legal and land-use issues | engineering issues | fish, wildlife, and environmental issues | summary | appendixes

Legal and land-use issues

A dam owner and/or the community must understand the legal obligations associated with a dam structure and pond before they can assess their options for repair or removal. This includes dam ownership, ownership of the land submerged by the pond, land-use issues, and zoning.
 

Checklist questions

• What are the important regulatory considerations?
• Is the structure in a state of disrepair? Has an order been issued to repair the structure?
• How long has it been since the dam was inspected?
• What type of dam is it? By statutory definition, Legal group: clarify this is it large or small? What is it made of?
• What agencies regulate the dam structure? The Federal Energy Regulatory Commission (FERC)? The Federal Emergency Management Agency (FEMA)? The Natural Resources Conservation Service (NRCS)? Wisconsin Department of Natural Resources?
• Does the dam produce hydroelectricity?
• Who is the correct person to contact at each of the regulatory agencies?
• Is an attorney needed for the process?
• Who owns the dam?
• Does the municipality own the dam? What is the legal process for repairing, removing, and/or abandoning a community-owned dam?
• Is the dam privately owned? What is the legal process for repairing, removing and/or abandoning a privately owned dam?
• Is the dam ownerless or abandoned?
• Is the dam in the process of being abandoned? What is the legal process for removing an abandoned dam?
• What are the important land-use considerations if the dam is repaired?
• How does the dam affect land use and zoning upstream and downstream? Would dam repair affect this zoning?
• How does the dam affect floodplain/flood hazard areas? Would this change with repair of the structure?
• Do the landowners understand existing shoreline, wetland, floodplain, or other county zoning regulations applied to their land?

• What are the important land-use considerations if the dam is removed?
• How much land will be exposed if the dam is removed?
• What can the recovered lands be used for?
• How will the dam removal affect land use and zoning upstream and downstream of the dam?
• Will the floodplain/flood hazard areas change with the removal of the structure?
• What happens to the land submerged by the pond if the dam is removed?
• Can the owners identified on the deeds be located?
• Can deeds be matched to the land boundaries?
• Will access through private land be needed to reach recovered lands?
• If no owner is identified for all or some portion of the recovered land, can the land be sold? Who may purchase the land?
• If repair is to be financed through the formation of a lake district, what is the legal process for forming one? What are the legal ramifications?
• How many “quiet title actions” are active in the local courts?

• Is any land around the dam site held in conservation easement?

Toolbox

• Statutes and rules: Legal Aspects Appendix A: A Listing of Pertinent Rules and Regulations
• Wisconsin Department of Natural Resources web site: http://www.dnr.state.wi.us
• Federal Energy Regulatory Commission (FERC): web site: http://www.ferc.fed.us/hydro/hydro2.htm
• Federal Emergency Management Act (FEMA) web site: http://www.fema.gov/
• County Emergency Government
• To find out who legally owns land submerged by the impoundment, start by researching the deeds and titles of the dam and the adjacent properties.

Next section: Engineering issues

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