Chapter 281

281.17 History History: 1995 a. 227 ss. 380, 384, 387, 389, 392, 418, 420; 1995 a. 378 s. 43; 1997 a. 27, 35; 1999 a. 147; 2001 a. 16, 109; 2003 a. 310; 2005 a. 347; 2011 a. 19, 118, 209.

281.17 Cross-reference Cross-reference: See also chs. NR 100, 107, 114, 142 and 815, Wis. adm. code.

281.17 Annotation Madison’s power to forbid chemical treatment of Madison lakes was withdrawn by s. 144.025 (2) (i) [now sub. (2)]. Wisconsin’s Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518, 271 N.W.2d 69 (1978).

281.17 Annotation A municipality has no jurisdiction over chemical treatment of waters to suppress aquatic nuisances. The department is granted statewide supervision over aquatic nuisance control under s. 144.025 (2) (i) [now sub. (2)]. Applications for permits to chemically treat aquatic nuisances under s. 144.025 (2) (i) [now sub. (2)] may be denied even though statutory and regulatory requirements have been met if such chemical treatment would be counter-productive in achieving the goals set out in s. 144.025 (1). 63 Atty. Gen. 260.

281.19 281.19 Orders.

281.19(1) (1) The department may issue general orders, and adopt rules applicable throughout the state for the construction, installation, use and operation of practicable and available systems, methods and means for preventing and abating pollution of the waters of the state. Such general orders and rules shall be issued only after an opportunity to be heard thereon has been afforded to interested parties.

281.19(2) (2) 

281.19(2)(a) (a) The department may issue special orders directing particular owners to remedy violations of the safe drinking water program under s. 281.17 (8) and (9) or to secure such operating results toward the control of pollution of the waters of the state as the department prescribes, within a specified time. Pending efforts to comply with any order, the department may permit continuance of operations on such conditions as it prescribes. If any owner cannot comply with an order within the time specified, the owner may, before the date set in the order, petition the department to modify the order. The department may modify the order, specifying in writing the reasons therefor. If any order is not complied with within the time period specified, the department shall immediately notify the attorney general of this fact. After receiving the notice, the attorney general shall commence an action under s. 299.95.

281.19(2)(b) (b) The department may issue temporary emergency orders without prior hearing when the department determines that the protection of the public health necessitates such immediate action. Such emergency orders shall take effect at such time as the department determines. As soon as is practicable, the department shall hold a public hearing after which it may modify or rescind the temporary emergency order or issue a special order under par. (a).

281.19(3) (3) The department shall make investigations and inspections to insure compliance with any general or special order or rule which it issues. In the exercise of this power the department may require the submission and approval of plans for the installation of systems and devices for handling, treating or disposing of any wastes.

281.19(4) (4) The department may, under s. 254.59, order or cause the abatement of any nuisance affecting the waters of the state.

281.19(5) (5) If the department finds that a system or plant tends to create a nuisance or menace to health or comfort, it shall order the owner or the person in charge to secure such operating results as the department prescribes, within a specified time. If the order is not complied with, the department may order designated changes in operation, and if necessary, alterations or extension to the system or plant, or a new system or plant. If the department finds that the absence of a municipal system or plant tends to create a nuisance or menace to health or comfort, it may order the city, village, town or town sanitary district embracing the area where such conditions exist to prepare and file complete plans of a corrective system as provided by s. 281.41, and to construct such system within a specified time.

281.19(6) (6) Orders issued by the department shall be signed by the person designated by the board.

281.19(7) (7) In cases of noncompliance with any order issued under sub. (2) or (5) or s. 281.20 (1), the department may take the action directed by the order, and collect the costs thereof from the owner to whom the order was directed. The department shall have all the necessary powers needed to carry out this subsection including powers granted municipalities under ss. 66.0821 and 200.01 to 200.15. It shall also be eligible for financial assistance under ss. 281.55, 281.57, 281.58 and 281.59.

281.19(8) (8) Any owner or other person in interest may secure a review of the necessity for and reasonableness of any order of the department under this section or s. 281.20 in the following manner:

281.19(8)(a) (a) They shall first file with the department a verified petition setting forth specifically the modification or change desired in such order. Such petition must be filed within 60 days of the issuance of the orders sought to be reviewed. Upon receipt of such a petition the department shall order a public hearing thereon and make such further investigations as it shall deem advisable. Pending such review and hearing, the department may suspend such orders under terms and conditions to be fixed by the department on application of any such petitioner. The department shall affirm, repeal or change the order in question within 60 days after the close of the hearing on the petition.

281.19(8)(b) (b) The determination of the department shall be subject to review as provided in ch. 227.

281.19 History History: 1995 a. 227 ss. 378, 379, 381, 386, 388, 390, 391, 397, 987; 1997 a. 27, 193; 1999 a. 32; 1999 a. 150 s. 672.

281.19 Annotation The Department of Natural Resources is authorized, not required, to set standards for sewer extension approvals and may process sewer extension applications on a case by case basis under s. 144.025 (2) (c) [now sub. (1)]. Wisconsin’s Environmental Decade, Inc. v. DNR, 82 Wis. 2d 97, 260 N.W.2d 674 (1978).

281.19 Annotation The Department of Natural Resources has the authority to order a municipality to construct a public water supply upon a finding that the absence of a public water supply constitutes a nuisance or menace to health or comfort, even if the electors of the municipality vote against construction in a referendum. 60 Atty. Gen. 523.

281.20 281.20 Orders; nonpoint source pollution.

281.20(1) (1) Under the procedure specified in sub. (3), the department may do any of the following:

281.20(1)(a) (a) Order or cause the abatement of pollution which the department, in consultation with the department of agriculture, trade and consumer protection if the source is agricultural, has determined to be significant and caused by a nonpoint source, as defined in s. 281.65 (2) (b), including pollution which causes the violation of a water quality standard, pollution which significantly impairs aquatic habitat or organisms, pollution which restricts navigation due to sedimentation, pollution which is deleterious to human health or pollution which otherwise significantly impairs water quality, except that under this paragraph the department may not order or cause the abatement of any pollution caused primarily by animal waste or of pollution from an agricultural source that is located in a priority watershed or priority lake area unless the source is designated as a critical site in a priority watershed or priority lake plan under s. 281.65 (5m) or a modification to such a plan under s. 281.65 (5s).

281.20(1)(b) (b) If it provided notice under s. 281.65 (5w), order the owner or operator of a source that is designated as a critical site in a priority watershed or priority lake plan under s. 281.65 (5m) or in a modification to such a plan under s. 281.65 (5s) to implement best management practices, but not with respect to any pollution caused primarily by animal waste.

281.20(3) (3) 

281.20(3)(a) (a)

281.20(3)(a)1. 1. If the department determines that it is authorized to issue an order under sub. (1) (a) to abate pollution caused by a nonpoint source, the department shall send a written notice of intent to issue the order to abate the pollution to the person whom the department determines to be responsible for the nonpoint source.

281.20(3)(a)2. 2. If the department determines under sub. (1) (b) that an owner or operator is required to implement best management practices in a priority watershed or priority lake area, the department shall send a written notice of intent to issue an order to implement the designated best management practices to the owner or operator.

281.20(3)(a)3. 3. The notice of intent to issue an order shall describe the department’s findings and intent, and shall include a date by which that person is required to abate the pollution or implement the best management practices. That date shall be at least one year after the date of the notice unless the department determines that the pollution is causing or will cause severe water quality degradation that could be mitigated or prevented by abatement action taken in less than one year. In its determination under this subsection, the department shall consider the nature of the actual or potential damage caused by the pollution and the feasibility of measures to abate that pollution.

281.20(3)(b) (b) If the nonpoint source that is the subject of a notice under par. (a) is agricultural, the department shall send the notice to the land conservation committee created under s. 92.06 of any county in which the source is located. If the notice is issued under par. (a) 2., the land conservation committee may disapprove issuance of an order within 60 days after the department issues the notice of intent to issue the order.

281.20(3)(c) (c) If the nonpoint source which is the subject of a notice under par. (a) is agricultural, the department shall send the notice to the department of agriculture, trade and consumer protection. The department of agriculture, trade and consumer protection shall do all of the following:

281.20(3)(c)1. 1. Upon receipt of the notice and in cooperation with the land conservation committee, provide to the person whom the department has determined to be responsible for the nonpoint source under sub. (1) (a) a listing of management practices which, if followed, would reduce pollution to an amount determined to be acceptable by the department, in consultation with either the department of agriculture, trade and consumer protection or the land conservation committee. The list shall, with reasonable limits, set forth all of the options which are available to the person to reduce pollution to that amount of pollution. The department of agriculture, trade and consumer protection shall provide to each person receiving a notice an explanation of financial aids and technical assistance which may be available to the person for the abatement of pollution or the implementation of best management practices from the department of agriculture, trade and consumer protection under s. 92.14 and from other sources.

281.20(3)(c)2. 2. Issue a report to the department within one year after the date of the notice describing the actions taken by the person receiving the notice and a recommendation as to whether the department should issue an order to abate the pollution or implement the best management practices. Notwithstanding par. (a), the department may not issue an order until the department receives that report unless the department determines that the pollution is causing or will cause severe water quality degradation which could be mitigated or prevented by abatement action taken in less than one year and unless the department of agriculture, trade and consumer protection files a concurring determination in writing with the department within 30 days after receiving notice of the department’s determination.

281.20(3)(d) (d) The department may issue a temporary emergency order prior to issuing a notice under par. (a) if all of the following apply:

281.20(3)(d)1. 1. The department determines that the pollution is causing or will cause severe water quality degradation.

281.20(3)(d)2. 2. The abatement action required by the order does not involve a capital expenditure.

281.20(3)(d)3. 3. If the nonpoint source is agricultural, the department provides a copy of the temporary emergency order to the department of agriculture, trade and consumer protection and to the land conservation committee created under s. 92.06 in every county in which the nonpoint source is located.

281.20(3)(d)4. 4. As soon as practicable after issuing the temporary emergency order, the department issues a written notice of intent to issue an order under pars. (a) and (b) or rescinds the temporary emergency order.

281.20(5) (5) 

281.20(5)(a) (a) Except as provided in par. (c), if the department issues a notice under sub. (3) (a) 2., the source is agricultural and no land conservation committee disapproves the proposed order under sub. (3) (b), the owner or operator of the critical site may obtain a review of the proposed order by filing a written request with the land and water conservation board within 60 days after the expiration of the time limit under sub. (3) (b). If the land conservation committee of any county in which a source is located disapproves of a proposed order under sub. (3) (b), the department may obtain a review of that disapproval by filing a written request with the land and water conservation board within 60 days after receiving the decision of the land conservation committee.

281.20(5)(b) (b) The owner or operator of a critical site may request a contested case hearing under ch. 227 to review the decision of the land and water conservation board under par. (a) by filing a written request with the department within 60 days after receiving an adverse decision of the land and water conservation board.

281.20(5)(c) (c) The owner or operator of a critical site who obtains review of the critical site determination under any or all of the review procedures in s. 281.65 (7) may not obtain review of a proposed order under this subsection.

281.20 History History: 1995 a. 227 ss. 393, 394, 395.

281.20 Cross-reference Cross-reference: See also ch. NR 120, Wis. adm. code.

subch. III of ch. 281 SUBCHAPTER III

WATER QUALITY AND QUANTITY;
GENERAL REGULATIONS

281.31 281.31 Navigable waters protection law.

281.31(1) (1) To aid in the fulfillment of the state’s role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans and authorize municipal shoreland zoning regulations for the efficient use, conservation, development and protection of this state’s water resources. The regulations shall relate to lands under, abutting or lying close to navigable waters. The purposes of the regulations shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses and reserve shore cover and natural beauty.

281.31(2) (2) In this section, unless the context clearly requires otherwise:

281.31(2)(c) (c) “Municipality” or “municipal” means a county, village or city.

281.31(2)(d) (d) “Navigable water” or “navigable waters” means Lake Superior, Lake Michigan, all natural inland lakes within this state and all streams, ponds, sloughs, flowages and other waters within the territorial limits of this state, including the Wisconsin portion of boundary waters, which are navigable under the laws of this state.

281.31(2)(e) (e) “Regulation” means ordinances enacted under ss. 59.692, 61.351, 61.353, 62.23 (7), 62.231, and 62.233 and refers to subdivision and zoning regulations which include control of uses of lands under, abutting, or lying close to navigable waters for the purposes specified in sub. (1), pursuant to any of the zoning and subdivision control powers delegated by law to cities, villages, and counties.

281.31(2)(f) (f) “Shorelands” means the lands specified under par. (e) and s. 59.692 (1) (b).

281.31(2)(g) (g) “Water resources,” where the term is used in reference to studies, plans, collection of publications on water and inquiries about water, means all water whether in the air, on the earth’s surface or under the earth’s surface. “Water resources” as used in connection with the regulatory functions under this section means navigable waters.

281.31(2m) (2m) Notwithstanding any other provision of law or administrative rule, a shoreland zoning ordinance required under s. 59.692, a construction site erosion control and storm water management zoning ordinance authorized under s. 59.693, 60.627, 61.354, or 62.234, or a wetland zoning ordinance required under s. 61.351 or 62.231 does not apply to any of the following:

281.31(2m)(a) (a) Lands adjacent to farm drainage ditches if all of the following apply:

281.31(2m)(a)1. 1. The lands are not adjacent to a natural navigable stream or river.

281.31(2m)(a)2. 2. Those parts of the drainage ditches adjacent to these lands were nonnavigable streams before ditching.

281.31(2m)(bg) (bg) Lands adjacent to artificially constructed drainage ditches, ponds, or storm water retention basins that are not hydrologically connected to a natural navigable water body.

281.31(2m)(c) (c) Lands adjacent to an impoundment described under s. 30.10 (2) (b) that does not discharge directly into a natural navigable waterway.

281.31(3) (3) 

281.31(3)(a) (a) The department shall coordinate the activities of the several state agencies in managing and regulating water resources.

281.31(3)(b) (b) The department shall make studies, establish policies and make plans for the efficient use, conservation, development and protection of the state’s water resources and:

281.31(3)(b)1. 1. On the basis of these studies and plans make recommendations to existing state agencies relative to their water resource activities.

281.31(3)(b)2. 2. Locate and maintain information relating to the state’s water resources. The department shall collect pertinent data available from state, regional and federal agencies, the University of Wisconsin, local units of government and other sources.

281.31(3)(b)3. 3. Serve as a clearinghouse for information relating to water resources including referring citizens and local units of government to the appropriate sources for advice and assistance in connection with particular water use problems.

281.31(5) (5) 

281.31(5)(a) (a) The department shall prepare a comprehensive plan as a guide for the application of municipal ordinances regulating navigable waters and their shorelands as defined in this section for the preventive control of pollution. The plan shall be based on a use classification of navigable waters and their shorelands throughout the state or within counties and shall be governed by the following general standards:

281.31(5)(a)1. 1. Domestic uses shall be generally preferred.

281.31(5)(a)2. 2. Uses not inherently a source of pollution within an area shall be preferred over uses that are or may be a pollution source.

281.31(5)(a)3. 3. Areas in which the existing or potential economic value of public, recreational or similar uses exceeds the existing or potential economic value of any other use shall be classified primarily on the basis of the higher economic use value.

281.31(5)(a)4. 4. Use locations within an area tending to minimize the possibility of pollution shall be preferred over use locations tending to increase that possibility.

281.31(5)(a)5. 5. Use dispersions within an area shall be preferred over concentrations of uses or their undue proximity to each other.

281.31(5)(b) (b) The department shall apply to the plan the standards and criteria set forth in sub. (6).

281.31(6) (6) Within the purposes of sub. (1) the department shall prepare and provide to municipalities general recommended standards and criteria for navigable water protection studies and planning and for navigable water protection regulations and their administration. Such standards and criteria shall give particular attention to safe and healthful conditions for the enjoyment of aquatic recreation; the demands of water traffic, boating and water sports; the capability of the water resource; requirements necessary to assure proper operation of septic tank disposal fields near navigable waters; building setbacks from the water; preservation of shore growth and cover; conservancy uses for low lying lands; shoreland layout for residential and commercial development; suggested regulations and suggestions for the effective administration and enforcement of such regulations.

281.31(7) (7) The department, the municipalities and all state agencies shall mutually cooperate to accomplish the objective of this section. To that end, the department shall consult with the governing bodies of municipalities to secure voluntary uniformity of regulations, so far as practicable, and shall extend all possible assistance therefor.

281.31(8) (8) This section and ss. 59.692, 61.351, 61.353, 62.231, and 62.233 shall be construed together to accomplish the purposes and objective of this section.

281.31(9) (9) Sections 30.50 to 30.80 are not affected or superseded by this section.

281.31(10) (10) A person aggrieved by an order or decision of the department under this section may cause its review under ch. 227.

281.31 History History: 1975 c. 232; 1977 c. 29; 1981 c. 330, 339; 1983 a. 189, 416; 1993 a. 246; 1995 a. 201; 1995 a. 227 s. 432; Stats. 1995 s. 281.31; 2013 a. 80; 2013 a. 151 s. 28; 2015 a. 55; 2017 a. 164.

281.31 Cross-reference Cross-reference: See also chs. NR 115 and 117, Wis. adm. code.

281.31 Annotation A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now this section and s. 59.692] does not amount to an unconstitutional taking of property. Discussing police powers and eminent domain. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

281.31 Annotation The concept that an owner of real property can, in all cases, do as the owner pleases with the owner’s property is no longer in harmony with the realities of society. The “reasonable use” rule codified in the second Restatement of the Law of Torts is adopted. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974).

281.31 Annotation By enactment of this section and s. 59.692, the legislature intended that towns would not have authority to regulate shorelands except where such regulation fell within the language of s. 59.692 (2) (b) [now s. 59.692 (2) (b), (bg), and (bm)]. That statutory scheme does not distinguish between towns with village powers and those without. Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, 12-2058.

281.31 Annotation A drainage board is subject to shoreland zoning ordinances, as is any other person. Navigable drainage ditches are within the jurisdiction of the Department of Natural Resources under s. 144.26 (2) (d) [now sub. (2) (d)]. 63 Atty. Gen. 355.

281.31 Annotation The Necessity of Zoning Variance or Amendments Notice to the Wisconsin Department of Natural Resources Under the Shoreland Zoning and Navigable Waters Protection Acts. Whipple. 57 MLR 25 (1973).

281.31 Annotation The Public Trust Doctrine. Dumphy. 59 MLR 787 (1976).

281.31 Annotation Water Quality Protection for Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution. Kusler. 1970 WLR 35.

281.31 Annotation This Land Is Whose Land? Changing Concepts of Land as Property. Large. 1973 WLR 1039.