Chapter 44

44.39(2) (2) Identification of affected state agencies. The state historical society shall identify every state agency which has any power or duty under s. 44.40 or 44.41 and shall notify each identified state agency of its powers and duties.

44.39(3) (3) Appointment of state agency historic preservation officer; duties. Every state agency notified under sub. (2) shall appoint one of its employees or officers, who has authority in the agency to affect the management of that agency’s resources and to directly influence that agency’s decision making, to serve as that agency’s historic preservation officer. That state agency historic preservation officer shall coordinate all functions of that state agency related to historic properties and shall serve as the liaison between that state agency and the state historical society.

44.39(4) (4) Cooperation. All state agencies shall cooperate with each other and with the state historical society to achieve the objectives of ss. 44.39 to 44.41.

44.39(5) (5) Waiver of compliance.

44.39(5)(a) (a) If the department of health services or the department of corrections determines that public safety may be jeopardized by compliance with any requirement of this section or s. 44.40 or 44.41, the department may request a waiver of compliance from the building commission. The building commission may grant the waiver of compliance.

44.39(5)(b) (b) If a waiver of compliance is granted by the building commission under par. (a), the applicable agency shall notify the officer of any proposed action to be taken under the waiver that may affect a historic property. The officer shall be notified at least 30 days before the proposed action is taken and, during the period before the proposed action is taken, the applicable agency shall allow the historical society to document the condition of the historic property.

44.39 History History: 1987 a. 395; 1989 a. 31; 1995 a. 27 ss. 1993j, 9126 (19); 2007 a. 20 s. 9121 (6) (a).

44.40 44.40 State agency decisions; negotiation.

44.40(1) (1) Each state agency shall consider whether any proposed action of the state agency will affect any historic property that is a listed property, on the inventory or on the list of locally designated historic places under s. 44.45. If the state agency determines that its proposed action will affect any historic property, it shall notify the officer.

44.40(1m) (1m) The historical society and a state agency notified under s. 44.39 (2) jointly shall identify actions of the state agency that may cause or permit an adverse effect on historic property including, but not limited to, any state agency action that involves the exercise of state agency authority in the issuance of a permit, license, authorization, variance or exception or in any grant of financial assistance and any state agency action related to property owned by the state agency or related to its long-range planning and facilities development.

44.40(2) (2) 

44.40(2)(a) (a) Upon receipt of a notice under sub. (1) the officer shall determine whether the proposed action will have an adverse effect upon a historic property that is any of the following:

44.40(2)(a)1. 1. A listed property.

44.40(2)(a)2. 2. On the inventory.

44.40(2)(a)3. 3. On the list of locally designated historic places under s. 44.45.

44.40(2)(b) (b) The officer shall make the determination under par. (a) within 30 days of receipt of the notice under sub. (1) or notify the state agency that an extension of time, not to exceed 30 days, is necessary to make the determination. If the officer notifies the state agency of an extension, he or she shall include in the notice the reasons for the extension.

44.40(3) (3) If the officer determines under sub. (2) that the proposed action will have an adverse effect on the historic property, the officer may require negotiations with the state agency to reduce such effects. If the negotiations result in an agreement as to the means of reducing such effects, the agreement shall be incorporated into the state agency’s proposed action. The officer shall prepare a written report on the effects and the status of all negotiations. The officer shall submit the report to the governor and to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3).

44.40(4) (4) A state agency may deny or impose conditions on a permit, license, authorization, variance, exception or award of financial assistance identified under sub. (1m) in order to reduce any adverse effect on historic property.

44.40(5) (5) This section does not apply to any state agency action which is subject to 16 USC 461 to 470mm.

44.40 History History: 1989 a. 31.

44.41 44.41 Protection and use of state agency property.

44.41(1) (1) Long-range plans. Each state agency which owns listed property shall develop a long-range plan for the management, preservation and improvement of that property. The state agency shall develop the long-range plan as part of the long-range public building program under s. 13.48. The long-range plan shall, to the greatest possible extent, result in preservation of that property.

44.41(2) (2) Use of listed property. Before purchasing or constructing a building which is not a listed property, each state agency shall consider using a building which is listed property. A state agency shall use such a building to the maximum extent feasible if the building is appropriate for or can be adapted to meet the needs of the state agency, can be acquired and occupied at a cost which is within the budget of the state agency, is at an appropriate location and meets other requirements of the state agency.

44.41(3) (3) Protection of listed property. If a state agency transfers or sells any listed property, it shall reserve a conservation easement under s. 700.40, to be transferred to and held by the state historical society, which secures the right of the historical society to preserve and maintain that property. The state historical society shall establish a form for that conservation easement and provide copies of that form to every state agency.

44.41 History History: 1987 a. 395; 1989 a. 56.

44.42 44.42 Negotiations with political subdivisions and school boards.

44.42(1) (1) Upon receipt of a notice from a political subdivision under s. 66.1111 (4) or a school board under s. 120.12 (21) concerning a proposed action affecting a historic property, the officer shall determine whether the action would have an adverse effect upon a historic property which is:

44.42(1)(a) (a) A listed property.

44.42(1)(b) (b) On the list of locally designated historic places under s. 44.45.

44.42(2) (2) The officer shall, within 30 days of receipt of the notice under s. 66.1111 (4) or 120.12 (21), reach a determination under sub. (1) or notify the political subdivision or school board in writing that an extension of time, not to exceed 30 additional days, will be required to make adequate determinations and the reasons for requiring the extension. If the officer determines that the proposed action which is the subject of that notice will have an adverse effect on the property which would be subject to that action, the officer may require negotiations with the political subdivision or school board proposing such action in an attempt to reduce such effects. If the negotiations result in an agreement as to the means of reducing such effects, that agreement shall be incorporated into the proposed action of the political subdivision or school board. The officer shall prepare a written report on the effects and the status of all negotiations. The officer shall submit the report to the governor and to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3).

44.42 History History: 1987 a. 395; 1989 a. 31; 1991 a. 39; 1999 a. 150 s. 672.

44.44 44.44 Certification of historic preservation ordinances.

44.44(1) (1) The state historical society shall certify a historic preservation ordinance if the ordinance does all of the following:

44.44(1)(a) (a) Contains criteria for the designation, on the register of a political subdivision, of historic structures and historic districts which are substantially similar to the criteria for inclusion in the national register of historic places in Wisconsin.

44.44(1)(b) (b) Provides a procedure for the designation of historic structures or historic districts which includes, at a minimum, a nomination process, public notice of nominations and an opportunity for written and oral public comment on nominations.

44.44(1)(c) (c) Provides for the exercise of control by a political subdivision by ordinance, to achieve the purpose of preserving and rehabilitating historic structures and historic districts.

44.44(1)(d) (d) Creates a historic preservation commission in the political subdivision.

44.44(2) (2) The owner of a building designated as a historic building on the register of historic property of a political subdivision shall provide any information or materials regarding the ordinance which are requested by the state historical society in determining whether to certify the ordinance.

44.44 History History: 1987 a. 395 s. 32.

44.45 44.45 List of locally designated historic places.

44.45(1) (1) Definition. In this section, “list” means the list of locally designated historic places under sub. (2).

44.45(2) (2) Publication of list. The state historical society shall maintain, publish and disseminate a list of locally designated historic places. The list may include any listed property.

44.45(3) (3) Contents of list. If a political subdivision has a historic preservation ordinance which is certified under s. 44.44, that political subdivision may submit to the state historical society information on any historic place which it has designated. If the process for designating that place complies with that ordinance, the state historical society shall include that place on the list.

44.45(4) (4) Promulgation of list.

44.45(4)(a) (a) The state historical society shall establish the form on which a political subdivision submits information under sub. (3).

44.45(4)(b) (b) The list is not a rule under s. 227.01 (13). The state historical society shall publish the list as an appendix to the rules promulgated under s. 44.36.

44.45(4)(c) (c) The state historical society shall update the list as necessary to add additional locally designated historic places to the list or to delete designations which do not meet the requirements of this section.

44.45 History History: 1987 a. 395; 2007 a. 97.

44.47 44.47 Field archaeology. This state reserves to itself the exclusive right and privilege of field archaeology on state sites, and establishes regulations for field archaeology on sites owned by political subdivisions, in order to protect and preserve archaeological and scientific information, matter and objects. It is a declaration of legislative intent that persons practicing field archaeology on privately owned land are encouraged to pursue their field archaeology in accordance with this section, and that the looting of all archaeological remains be strongly discouraged. Persons having knowledge of the location of archaeological sites are encouraged to communicate such information to the state archaeologist. This section is not intended to burden persons who wish to use state public property for recreational and other lawful purposes or to unnecessarily restrict the use of state public property.

44.47(1) (1) Definitions. As used in this section:

44.47(1)(a) (a) “Archaeological methods” means scientific procedures used in field archaeology by recognized professional authorities on archaeology.

44.47(1)(b) (b) “Archaeological site” means any land or the bed of any stream or lake where there are objects or other evidence of archaeological interest, aboriginal mounds and earthworks, ancient burial grounds, prehistoric and historical ruins, Indian mounds, historic and prehistoric watercraft and associated objects, aircraft and other archaeological and historical features.

44.47(1)(c) (c) “Data” means field notes, photographs, maps and other records relating to field archaeology.

44.47(1)(d) (d) “Field archaeology” means the study of the traces of human culture by means of surveying, digging, sampling, excavating or removing objects.

44.47(1)(e) (e) “Local site” or “local archaeological site” means an archaeological site owned by a political subdivision.

44.47(1)(f) (f) “Object” means an article, implement or other item of archaeological interest. “Object” does not include human remains, as defined in s. 157.70 (1) (f), or a sunken log, as defined in s. 170.12 (1) (b).

44.47(1)(g) (g) “Scientific institutions” means museums, historical societies, foundations for archaeological study, state agencies and scholarly groups with professional standing and physical facilities for the display, study and preservation of objects of archaeological interest.

44.47(1)(h) (h) “State site” or “state archaeological site” means an archaeological site owned by this state.

44.47(1)(i) (i) “Submerged cultural resource” means an archaeological site or historic property that is located beneath the surface of a lake or stream.

44.47(2) (2) Unlicensed field archaeology prohibited. No person other than the state archaeologist and individuals licensed by the director may engage in any field archaeology on any state site or site owned by a political subdivision.

44.47(3) (3) State archaeologist.

44.47(3)(a) (a) Appointment. The state archaeologist shall be a qualified archaeologist residing in this state and shall be appointed by the director.

44.47(3)(b) (b) Duties and powers of state archaeologist. The state archaeologist shall:

44.47(3)(b)1. 1. Sponsor, engage in and direct fundamental research into the archaeology of this state and encourage and coordinate archaeological research and investigation undertaken within the state.

44.47(3)(b)2. 2. Cooperate with other state agencies and political subdivisions which have authority in areas where archaeological sites are located, or which have the responsibility for marking sites or arranging for their being viewed by the public.

44.47(3)(b)3. 3. Encourage the preservation of archaeological sites located on privately owned property.

44.47(3)(b)4. 4. Protect objects of archaeological significance discovered by field archaeology at state sites or discovered during the course of any public construction or demolition work on state sites, and encourage the protection of such objects discovered during the course of any other construction or demolition work.

44.47(3)(b)5. 5. Cooperate with the historical society, public and private institutions of higher education in this state, and other custodians to preserve objects of archaeological significance, together with the data relating thereto.

44.47(3)(b)6. 6. Encourage the dissemination of archaeological facts through the publication of reports of archaeological research conducted within the state.

44.47(3)(b)7. 7. Approve permits for qualified persons to engage in field archaeology as provided in sub. (4) and to otherwise carry out and enforce this section.

44.47(3)(b)8. 8. Administer the state archaeology program under s. 44.48 (2).

44.47(4) (4) Permits.

44.47(4)(a) (a) The director, acting as an agent of this state, may issue upon such terms and conditions, including restriction to a specific state site on land, as he or she designates, to a qualified natural person approved by the state archaeologist, a permit to engage in field archaeology on state sites and sites owned by political subdivisions. If a state site or the area described in an application is under the jurisdiction of any other state agency or if the field archaeology to be licensed interferes with a project of any other state agency, the director shall first obtain the approval of that state agency. The director may not issue a permit for field archaeology on a site owned by a political subdivision without the written approval of the political subdivision which owns the site. No state agency or political subdivision may withhold that approval without good cause. The director by rule may establish fees for processing applications, for permits or for renewal of permits.

44.47(4)(b) (b) If a site is located on privately owned land, any person wishing to dig or excavate at such a site is strongly encouraged to secure a permit under this section. The applicant for a permit must submit the written consent of the owner.

44.47(4)(c) (c) The director may waive sub. (3) (b) 7. in an emergency in which objects of archaeological interest are found in the course of construction or demolition work, or in other situations in which time is of the essence to save objects or gather data.

44.47(4)(d) (d) The director, upon the recommendation of the state archaeologist, the state agency administering the state site or the political subdivision which owns the site, may revoke or suspend a permit because of the improper conduct of the permittee, the use of improper or substandard archaeological methods or for other good cause.

44.47(5) (5) Ownership, custody and use of objects and data. Except as provided in sub. (5r) and s. 170.12, the state reserves to itself the title to all objects found and data gathered in field archaeology on state sites. Although a permit may name a custodian other than the historical society, title to the objects and data discovered at state sites is reserved to the historical society as trustee for the state. Physical possession of such objects shall revert to the state if such custodian ceases to exist, or if the director, on the recommendation of the state archaeologist, finds that the custodian is not properly caring for them or keeping them conveniently available for study by students of archaeology.

44.47(5m) (5m) Submerged cultural resources.

44.47(5m)(a) (a) There is established, to be administered by the historical society and department of natural resources, a program for submerged cultural resources of this state.

44.47(5m)(b) (b) The historical society, in consultation with the department of natural resources, shall coordinate the activities of the state relating to the preservation, management and public use of submerged cultural resources. The historical society may enter into agreements with federal and state agencies, political subdivisions and nonprofit organizations regarding the preservation, management and use of submerged cultural resources and the management of bottomland preserves. On or before February 1 of each odd-numbered year, the historical society shall submit a report to the governor and to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), on submerged cultural resources activities and implementation of this subsection.

44.47(5m)(c) (c) The historical society and department of natural resources may by rule designate areas of the bed of any stream or lake as bottomland preserves, for the purpose of enhancing preservation, management and public use of any submerged cultural resources within the bottomland preserve. A bottomland preserve may encompass more than one object or archaeological site.

44.47(5m)(d) (d) Before designation of an area as a bottomland preserve, the historical society shall consider all of the following:

44.47(5m)(d)1. 1. If the preserve will provide preservation, management and public use of submerged cultural resources.

44.47(5m)(d)2. 2. The extent to which an inventory of submerged cultural resources has been conducted for the area within the proposed bottomland preserve.

44.47(5m)(d)3. 3. Whether a plan has been prepared for the management of submerged cultural resources within the proposed bottomland preserve and for the recreational management and development of the proposed bottomland preserve.

44.47(5m)(d)4. 4. The existence of an entity that will assume responsibility for the management of the bottomland preserve.

44.47(5m)(d)5. 5. The availability of existing or planned facilities necessary for recreational uses of the bottomland preserve, including roads, boat landings, marinas, boat and diving charter services, hotels, medical decompression facilities and rescue agencies.

44.47(5m)(e) (e) The historical society and department of natural resources may promulgate rules relating to the access, use, stewardship, management, protection and recreational development of bottomland preserves, and the preservation, conservation, curation and display of submerged cultural resources and objects removed from underwater archaeological sites.

44.47(5r) (5r) Sunken logs. When reviewing an application to raise and remove sunken logs under s. 170.12, all of the following apply: