ZDW:skw
2021 - 2022 LEGISLATURE
February 1, 2022 - Introduced by Senators Stroebel, Ballweg, Jacque and
Felzkowski, cosponsored by Representatives Wittke,
Katsma, Vorpagel,
Kuglitsch and Murphy. Referred to Committee on Government Operations,
Legal Review and Consumer Protection.
SB900,1,4
1An Act to renumber 30.122;
to amend 30.122 (title); and
to create 30.01 (1h),
230.122 (2), 30.122 (3), 30.2039 and 885.335 of the statutes;
relating to: use of
3fill in commercial waterways and establishing shorelines of Great Lakes
4waters.
Analysis by the Legislative Reference Bureau
This bill provides for the lawful public or private use of land that has been above
the ordinary high water mark of a commercial waterway or a Great Lakes water
since December 9, 1977. Under current law, all permanent alterations, deposits, or
structures, other than boathouses, that affect navigable waters are presumed in
conformity with the law if they were constructed before December 9, 1977, and did
not require a permit at the time of construction.
Historic fill in commercial waterways
The bill applies, in part, to fill placed prior to 1977 that created land above the
ordinary high water mark of a commercial waterway, which is a specified list of rivers
and harbors. If the fill is unauthorized fill for which the Department of Natural
Resources has not initiated an enforcement action or is within an authorized
bulkhead line and not specifically restricted by a submerged land lease, the owner
of the fill may use the fill for any purpose.
Establishing the shorelines of Great Lakes waters
The bill applies, in part, to property that 1) includes land that may have been
part of the submerged bed of a Great Lakes water at the time of statehood; 2) includes
portions of land that are upland, which is defined to mean land that has been above
the ordinary high water mark since December 9, 1977; 3) is within a municipality;
and 4) is not subject to a lake bed grant or a submerged land lease and is not landward
of the statutorily established shoreline in the city of Milwaukee.
The record title holder of applicable land may submit a proposed shoreline to
to the municipality in which the land is located. The municipality must approve the
proposed shoreline if the municipality determines the proposed shoreline is in the
public interest and the proposed uses will promote the interests of the public. If a
municipality approves a proposed shoreline, the municipality must submit the
approval to DNR for review.
Following a public notice and comment period, DNR must adopt the shoreline
approved by the municipality unless DNR determines that a portion of the area
landward of the shoreline is not upland or there is not substantial evidence that the
shoreline as proposed is in the public interest. A determination by DNR establishes
the shoreline for purposes of determining the boundary of title between land held in
trust by the state and land held in fee title ownership.
The bill also prohibits the commencement of any action affecting the possession
or title of any real estate based on an assertion that the property includes portions
of land that may have at one time been submerged beneath a Great Lakes water if
the portions of land are upland and not subject to a lake bed grant or a submerged
land lease.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB900,1
1Section 1
. 30.01 (1h) of the statutes is created to read:
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30.01
(1h) “Commercial waterway” includes all of the following:
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(a) Ahnapee River and Algoma Harbor.
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(b) East River and Green Bay.
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(c) Fox River.
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(d) Kenosha Harbor.
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(e) Kewaunee River and Kewaunee Harbor.
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(f) Kinnickinnic River, Menomonee River, Milwaukee River, and Milwaukee
9Harbor.
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1(g) Manitowoc River and Manitowoc Harbor.
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(h) Menominee River.
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(i) Root River and Racine Harbor.
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(j) Sheboygan River and Sheboygan Harbor.
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(k) St. Louis River and Superior Harbor.
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(L) West Twin River and Two Rivers Harbor.
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7Section 2
. 30.122 (title) of the statutes is amended to read:
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830.122 (title)
Unauthorized structures
and fill.
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9Section 3
. 30.122 of the statutes is renumbered 30.122 (1).
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10Section 4
. 30.122 (2) of the statutes is created to read:
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30.122
(2) A fill or deposit placed in a commercial waterway before December
129, 1977, that created land at an elevation above the current ordinary high water
13mark and that has remained above the current ordinary high water mark since
14December 9, 1977, may be used by the owner of the fill or deposit for any public or
15private purpose without restrictions imposed if any of the following apply:
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(a) The fill is unauthorized and the department has not initiated an
17enforcement action relating to the fill prior to effective date of this paragraph ....
18[LRB inserts date].
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(b) The fill is within an authorized bulkhead line established as provided under
20s. 30.11 and use of the filled area is not specifically restricted by the terms included
21in a submerged land lease under s. 24.39 (4).
SB900,5
22Section 5
. 30.122 (3) of the statutes is created to read:
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30.122
(3) Nothing in this section abridges the riparian rights of riparian
24owners.
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25Section
6. 30.2039 of the statutes is created to read:
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130.2039 Great Lakes shorelines established. (1) Definitions. In this
2section:
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(a) “Great Lakes water” means Lake Superior, Lake Michigan, Green Bay, or
4Sturgeon Bay.
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(b) “Municipality” means a city or village.
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(c) “Record title holder” means a person with a claim of ownership of property
7based on a recorded conveyance of an ownership interest in the property.
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(d) “Shoreline” means the boundary between upland and property waterward
9of upland areas.
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(e) “Upland” means property that has been at an elevation above the current
11ordinary high water mark since December 9, 1977, other than for temporary
12maintenance activities or because of accretion or reliction.
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13(2) Scope. This section applies to properties or portions of properties to which
14all of the following apply:
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(a) The property includes portions of land that may have been part of the
16submerged bed of a Great Lakes water at the time of statehood.
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(b) The property includes portions of land that are upland.
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(c) The property is within a municipality.
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(d) The property is not subject to a lake bed grant or a submerged land lease
20and is not landward of the shoreline established under s. 30.2038.
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21(3) Application. (a) A record title holder for property that meets the
22requirements under sub. (2) (a) to (d) may apply to the municipality in which the
23property is located for a determination of the location of the shoreline in accordance
24with this section.
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(b) The application shall include all of the following information:
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11. The legal description of the property and a survey map showing the proposed
2shoreline.
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2. Photographs, survey data, publicly available global positioning system
4mapping, or other documentation that provide evidence that the area landward of
5the proposed shoreline is upland.
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6(4) Municipal approval. (a) Except as provided in sub. (5), a municipality that
7receives an application under sub. (3) shall determine whether the shoreline
8proposed under sub. (3) (b) 1. is in the public interest as provided in par. (c).
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(b) A municipality may by ordinance adopt a proposed shoreline for multiple
10properties within the municipality that abut a Great Lakes water if the municipality
11determines that the location of the shoreline is in the public interest as provided in
12par. (c).
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(c) In making a determination under this subsection, the municipality shall
14approve the proposed shoreline if the property meets the requirements under sub.
15(2) (a) to (d), the municipality determines approval of the shoreline is in the public
16interest, and the proposed use will promote the interests of the public, which may
17include public rights in navigable waters, public use, economic development or
18redevelopment, the elimination of blight, remediation of brownfields, and settling
19uncertainty in title. In making a determination under this subsection, there is a
20presumption that existing residential uses require minimal or no public access or
21use.
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22(5) Exception. A parcel that has been separated from the submerged bed of a
23Great Lakes water by one or more other parcels since December 9, 1977, is deemed
24to be not part of the lakebed of a Great Lakes water and shall be affected by this
25section in the same manner as property for which a determination is made that the
1property is held in fee title ownership and is not held in trust by the state for the
2public under sub. (9).
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3(6) Submittal to the department. Upon making a determination to approve
4a shoreline under sub. (4), the municipality shall provide the approval to the
5department for review.
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6(7) Notice. (a) No later than 30 days after receiving a request for review under
7sub. (6), the department shall provide public notice by publishing a class 2 notice
8under ch. 985 and by posting notice on the department's Internet site. The notice
9shall provide an opportunity for members of the public to provide comments and
10request a public hearing. If a public hearing is requested, notice of the public hearing
11shall be provided by publishing a class 2 notice under ch. 985 and by posting notice
12on the department's Internet site.
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(b) No later than 60 days following public notice under par. (a), or 60 days
14following a public hearing requested under par. (a), whichever is later, the
15department shall make a determination under sub. (8).
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16(8) Determinations by the department. The department shall adopt the
17shoreline approved by a municipality under sub. (4) and determine the shoreline is
18consistent with the public interest unless the department determines any of the
19following:
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(a) A portion of the area landward of the shoreline approved by the municipality
21under sub. (4) is not upland. If a determination under this paragraph is made, the
22department shall modify the proposed shoreline so that any portion that is not
23upland remains waterward of the shoreline and shall approve the modified
24shoreline.
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1(b) The determination of the municipality under sub. (4) that the proposed
2shoreline is in the public interest is not supported by substantial evidence.
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3(9) Effect of determination. (a) A determination under this section
4establishes the shoreline for purposes of determining the boundary of title between
5land held in trust by the state and land held in fee title ownership. For land held in
6fee title ownership as determined under this section, this determination operates in
7the same manner as if a person were granted quiet title to the property by a court
8under s. 841.10.
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(b) A determination under this section does not alter the rights of any record
10title holder other than to establish the shoreline under par. (a).
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(c) This section does does not alter the right of property owners to seek a quiet
12title action under common law.
SB900,7
13Section
7. 885.335 of the statutes is created to read:
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14885.335 Actions concerning real estate abutting Great Lakes water. No
15action affecting the possession or title of any real estate may be commenced, by any
16person, the state, or a political subdivision or municipal corporation of the state,
17based on an assertion that the property includes portions of land that may have at
18one time been submerged beneath a Great Lakes water if such portions of land are
19upland, as defined in s. 30.2039 (1) (e), and the property is not subject to a lake bed
20grant or a submerged land lease.