Legal aspects module: introduction | disclaimer | historical overview | dam basics | repair/removal issues | role of FERC | landownership identification | summary | appendixes

Removal/repair issues

The decision (by a community or individual) to repair or remove a dam often occurs or is forced after a dam inspection. A dam in disrepair is potentially dangerous to life and property downstream. The Wisconsin Department of Natural Resources, pursuant to Wis. Stats. Chapter 31, has the authority to issue an order to either repair or remove a potentially hazardous structure. Once an order has been issued by the Wisconsin Department of Natural Resources, a decision must be made to repair or remove the structure within the timelines established in the order. These timelines vary on the basis of the severity of the dam’s disrepair.

Common scenarios that can result when a decision to repair or remove a dam structure must be made include the following:

• A dam is present, but no owner can be found;
• A dam is in the process of being legally abandoned by the owner;
• A dam is owned by a known entity (for example, community, individual, business, utility, or agency).

Dams with no owner: Repair and removal issues

In some situations, the owner of a dam cannot be determined. This may be caused by inaccurate landownership records, the death of a property owner with no heirs, or landowner relocation out of the state. If this ownerless structure is determined to be in a state of disrepair, a new owner must be found or the Wisconsin Department of Natural Resources is obligated to remove the hazardous dam pursuant to Wisconsin Statues Chapter 31.187. Prior to the Wisconsin Department of Natural Resources moving forward to remove an ownerless dam, it is required to publish a public notice and/or hold an informational hearing. The purpose of the hearing/notice is to provide information and an opportunity for someone to apply for a dam transfer and assume ownership of the structure.

Becoming a dam owner means assuming all liability and responsibility of the structure (see prior section outlining basic responsibilities). A prospective owner must show that they are financially capable of maintaining the dam: “Financially capable” owners must not only have funds for the current required repairs, but also enough monies to operate and maintain the structure for ten years (Wis. Stats. Section 31.14, 1997-98). Due to this requirement, often the only parties capable of acquiring ownership are units of government, which may include cities, towns, villages, lake, and sanitary districts. The only group or individual prohibited from assuming ownership of a dam structure are foreign corporations (Wis. Stats. Section 31.21, Wis. Stats. Section 196.53, 1997-98).

Issues associated with the decision to repair

Once an individual(s) or community has decided to pursue ownership and repair a currently ownerless dam structure, they must submit an application to the Wisconsin Department of Natural Resources. As noted earlier, this group must demonstrate financial capability. This may be an easy task for organized government units, but may not be for individuals or small groups. For these small groups, the formation of a lake or sanitary district may be a viable option. The regulations for forming lake and sanitary districts are set forth in Wisconsin Statutes Chapter 33 and 60, respectively.
The Wisconsin Department of Natural Resources has the option to issue or deny applications for a permit to transfer dam ownership. In addition to proving financial capability, the applicant also has to demonstrate that the transfer and subsequent operation and maintenance of the structure will not materially obstruct existing navigation or violate other public rights, and will not endanger life, health, or property (Wis. Stats. Section 31.08, 1997-98). If a permit is granted, the applicant will need to move forward quickly on the necessary repairs. These plans will need to meet the standards set forth in Wisconsin Administrative Code Chapter NR 333 (2000). Please contact your Wisconsin Department of Natural Resources Water Management Specialist or Water Management Engineer for more information on design requirements. If the application for dam transfer is denied, an appeal process is available under the provisions of Wis. Stats. Chapter 227.
 

Issues associated with the decision to remove

Individual groups or communities do not have a legal obligation to assume ownership of the dam structure. If no one is interested in assuming ownership of the structure, and if no owner can be identified, the Wisconsin Department of Natural Resources may proceed to remove the structure pursuant to (Wis. Stats. Section 31.187 1997-98). Land-use and ownership issues associated with such a removal are discussed later in this section.
 

Dam abandonment by the owner: Repair and removal issues

In some cases, it may be necessary for a dam owner to abandon or transfer the ownership of the dam to an alternate owner. Abandoning a dam refers to ceding any interest in the structure with the intent of never again claiming a right or interest in it. Owners may wish to abandon dams for many reasons. This decision includes financial or economic considerations, particularly when the cost of maintaining a dam has become a financial liability or burden to the owner. Dam ownership transferal or abandonment due to environmental considerations is also a priority in some cases, such as when owners wish to restore the original river ecosystem.

Dam owners have the legal right to abandon a dam (Wis. Stats. Section 31.185, 1997-98). However, the owner may not abandon the structure without removing it.

If another party does not come forward to acquire ownership of the dam, the Wisconsin Department of Natural Resources may issue a permit to that owner for abandonment and removal. Prior to the issuance of a permit to abandon a dam, a pubic hearing may be held if there are any objections to the proposed abandonment. At the completion of the hearing, a 120-day waiting period begins. This waiting period offers an opportunity for a person or group to apply to assume ownership of the dam. After this 120-day waiting period, the Wisconsin Department of Natural Resources shall either 1) deny the permit to abandon the dam or 2) grant the permit with appropriate conditions to assure preservation of public rights in navigable waterways and to promote safety and protect life, health, and property (Wis. Stats. Section 31.185(4) and 31.185(5), 1997-98). The conditions will require removal of all parts of the dam structure from the waterway. If an entity comes forward and seeks ownership of the dam during the 120-day waiting period, the ownership may be transferred to the prospective owner, provided that they meet the conditions of dam ownership.
 

Issues associated with the decision to repair

Similar to the ownerless-dam situation, any financially capable person, group, or community has the right to apply to obtain ownership of the structure. This is usually accomplished through a negotiation with the current owner to purchase the structure and accompanying property. The formation of a lake or sanitary district is also an option in this case to facilitate ownership.
 

Issues associated with the decision to remove

As stated above, individual(s) or communities do not have a legal obligation to assume ownership of the dam structure. If no one is interested in assuming ownership of the structure, the Wisconsin Department of Natural Resources may issue a permit to the owner to abandon and remove the dam structure. Also, as noted earlier, the owner of a dam may not abandon the structure without removing it.
 

Known dam owner: Repair and removal issues

Many times communities are faced with a repair or removal decision for dams that they currently own. Like the other two situations, the decision often comes after a dam inspection is completed and an order is issued by the Wisconsin Department of Natural Resources. A community must then make a decision to repair or remove the structure within set deadlines. These deadlines vary based upon the severity of the condition of the dam. The community either has the option to repair the structure or apply to abandon it and remove it.
 

Issues associated with the decision to repair

As discussed above, if the community decides to repair the structure they must move quickly. Design plans must be submitted pursuant to Wisconsin Administrative Code NR 333 and approved by the Wisconsin DNR prior to repair.
 

Issues associated with the decision to remove

If a community decides to remove the failing structure, an application for dam abandonment must be submitted to the Wisconsin DNR. The abandonment procedure would follow the requirements discussed in the previous subsection "Proposed Dam Abandonment By Owner."
 

Next section: Role of FERC

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