Chapter 281

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.

281.31 Annotation Wisconsin’s Shoreland Management Program: An Assessment with Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.

281.33 281.33 Construction site erosion control and storm water management.

281.33(1) (1) Objectives. To aid in the fulfillment of the state’s role as trustee of its navigable waters, to promote public health, safety and general welfare and to protect natural resources, it is declared to be in the public interest to make studies, establish policies, make plans, authorize municipal construction site erosion control and storm water management zoning ordinances for the efficient use, conservation, development and protection of this state’s groundwater, surface water, soil and related resources and establish a state storm water management plan for the efficient use, conservation, development and protection of this state’s groundwater, surface water, soil and related resources while at the same time encouraging sound economic growth in this state. The purposes of the municipal ordinances and state plan shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; prevent and control soil erosion; prevent and control the adverse effects of storm water; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth.

281.33(2) (2) State storm water management plan. The department, in consultation with the department of safety and professional services, shall promulgate by rule a state storm water management plan. This state plan is applicable to activities contracted for or conducted by any agency, as defined under s. 227.01 (1) but also including the office of district attorney, unless that agency enters into a memorandum of understanding with the department of natural resources in which that agency agrees to regulate activities related to storm water management. The department shall coordinate the activities of agencies, as defined under s. 227.01 (1), in storm water management and make recommendations to these agencies concerning activities related to storm water management.

281.33(3) (3) Standards related to storm water and certain construction activities.

281.33(3)(a) (a)

281.33(3)(a)1. 1. Except as restricted under subd. 2., the department shall establish by rule uniform statewide standards for all of the following:

281.33(3)(a)1.a. a. Activities related to construction site erosion control at sites that have a land disturbance that is one acre or more in area.

281.33(3)(a)1.b. b. Activities related to construction site erosion control at sites that have a land disturbance that is less than one acre and to which ss. 101.1206 and 101.653 do not apply.

281.33(3)(a)1.c. c. Storm water management.

281.33(3)(a)2. 2. The department, in cooperation with the department of transportation, shall establish by rule uniform statewide standards for activities related to construction site erosion control and storm water management if those activities concern street, highway, road or bridge construction, enlargement, relocation or reconstruction.

281.33(3)(a)3. 3. Uniform statewide standards for storm water management established under this paragraph are applicable to the state plan under sub. (2). The department shall require a city, village, town, or county to comply with uniform statewide standards established under this paragraph for any construction site erosion control and storm water management zoning ordinance enacted under s. 59.693, 60.627, 61.354 or 62.234.

281.33(3)(a)4. 4. The department shall identify low-cost practices which would enable a person to comply with these uniform statewide standards.

281.33(3)(b) (b) The uniform statewide standards for construction site erosion control at sites described in par. (a) 1. a. and b. shall provide for the regulation of any construction activity, at such a site, that:

281.33(3)(b)1. 1. Involves the grading, removal of protective ground cover or vegetation, excavation, land filling or other land disturbing activity which affects an area of 4,000 square feet or more.

281.33(3)(b)2. 2. Involves the excavation or filling or a combination of excavation and filling which affects 400 cubic yards or more of dirt, sand or other excavation or fill material.

281.33(3)(b)3. 3. Involves street, highway, road or bridge construction, enlargement, relocation or reconstruction.

281.33(3)(b)4. 4. Involves the laying, repairing, replacing or enlarging of an underground pipe or facility for a distance of 300 feet or more.

281.33(3)(b)5. 5. Requires a subdivision plat approval or a certified survey.

281.33(3)(c) (c) The uniform statewide standards for storm water management shall provide for the regulation of any construction activity which:

281.33(3)(c)1. 1. Is a residential development with a gross aggregate area of 5 acres or more.

281.33(3)(c)2. 2. Is a residential development with a gross aggregate area of 3 acres or more with at least 1.5 acres of impervious surfaces.