Chapter 281

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.

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

281.33(3)(c)4. 4. Is likely to result in storm water runoff which exceeds the safe capacity of the existing drainage facilities or receiving body of water, which causes undue channel erosion, which increases water pollution by scouring or the transportation of particulate matter or which endangers downstream property.

281.33(3)(d) (d) If the department determines that rules promulgated under s. 281.16 (2) prescribe performance standards that meet the requirements for establishing uniform statewide standards under this subsection, the department’s rules promulgated under s. 281.16 (2) satisfy the rule-making requirements under this subsection and shall apply as if they were promulgated under this subsection.

281.33(3m) (3m) Requirements for ordinances. A city, village, town, or county may enact an ordinance regulating the conduct regulated under this section only if the ordinance strictly conforms with uniform statewide standards established under sub. (3).

281.33(4) (4) Model ordinances; state plan; distribution. The department shall prepare a model zoning ordinance for construction site erosion control at sites described in sub. (3) (a) 1. a. and b. and for storm water management in the form of an administrative rule. The model ordinance is subject to s. 227.19 and other provisions of ch. 227 in the same manner as other administrative rules. Following the promulgation of the model ordinance as a rule, the department shall distribute a copy of the model ordinance to any city, village, town or county that submits a request. The department shall distribute a copy of the state plan to any agency which submits a request.

281.33(5) (5) Cooperation. The department, the municipalities, and all state agencies shall cooperate to accomplish the objective of this section. To that end, the department shall consult with the governing bodies of municipalities to secure uniformity of regulations, shall prepare model ordinances under sub. (4), shall extend assistance to municipalities under this section, shall prepare the plan under sub. (2), shall obtain uniformity through the implementation of this plan and the utilization of memoranda of understanding which are substantially similar to the plan, and shall extend assistance to agencies under this section.

281.33(6) (6) Exceptions.

281.33(6)(a) (a) Notwithstanding subs. (3) and (3m), a city, village, town, or county may enact and enforce provisions of an ordinance that are stricter than the uniform standards for storm water management established by the department under this section if the stricter provisions are necessary to do any of the following:

281.33(6)(a)1. 1. Control storm water quantity or peak flow to address existing flooding problems or prevent future flooding problems, except that an ordinance under this subdivision may not require more than 90 percent of the difference between the pre-development annual runoff volume at a site and the post-development annual runoff volume at that site to be retained on site.

281.33(6)(a)2. 2. Comply with federally approved total maximum daily load requirements.

281.33(6)(b) (b) Subsection (3m) does not apply to provisions of an ordinance enacted by a city, village, town, or county if the provisions of the ordinance regulate storm water management relating to existing development or redevelopment, as defined in NR 151.002, Wis. Adm. Code.

281.33 History History: 1983 a. 416; Stats. 1983 s. 144.265; 1983 a. 538 s. 150; Stats. 1983 s. 144.266; 1985 a. 182 s. 57; 1987 a. 27; 1989 a. 31; 1993 a. 16, 246; 1995 a. 27 ss. 4303cm, 9116 (5); 1995 a. 201; 1995 a. 227 s. 434; Stats. 1995 s. 281.33; 2009 a. 28 ss. 2075d to 2075j, 2576n, 2576p; 2011 a. 32; 2013 a. 20; 2017 a. 243.

281.33 Cross-reference Cross-reference: See also chs. NR 152 and 216, Wis. adm. code.

281.34 281.34 Groundwater withdrawals.

281.34(1) (1) Definitions. In this section:

281.34(1)(ae) (ae) “Fire protection well” means a well used primarily for fire protection purposes.

281.34(1)(am) (am) “Groundwater protection area” means an area within 1,200 feet of any of the following:

281.34(1)(am)1. 1. An outstanding resource water identified under s. 281.15 that is not a trout stream.