Chapter 87

87.30(1d)(d)2. 2. Any living quarters in the nonconforming building are or will be at or above the flood protection elevation, as established by the department.

87.30(1g) (1g) Regulation of floodproofed basements. The department may not promulgate any rule or impose any restriction that does any of the following:

87.30(1g)(a) (a) Results in an ordinance or other regulation containing provisions for floodproofed residential basements that are more restrictive than those imposed by the federal emergency management agency.

87.30(1g)(b) (b) Allows the department to deny an exception for such basements if the federal emergency management agency has granted an exception under 44 CFR 60.6.

87.30(1m) (1m) Jurisdiction over drainage ditches limited.

87.30(1m)(ag) (ag) Notwithstanding any other provision of law or administrative rule promulgated thereunder, a floodplain zoning ordinance required under sub. (1) does not apply to lands adjacent to farm drainage ditches if all of the following apply:

87.30(1m)(ag)1. 1. Such lands are not within the floodplain of a natural navigable stream or river.

87.30(1m)(ag)2. 2. Those parts of the drainage ditches adjacent to these lands were nonnavigable streams before ditching.

87.30(1m)(ag)3. 3. Such lands are maintained in nonstructural agricultural use.

87.30(1m)(am) (am) Notwithstanding any other provision of law or administrative rule promulgated thereunder, a floodplain zoning ordinance required under sub. (1) does not apply to lands adjacent to farm drainage ditches if all of the following apply, except to the extent necessary for the municipality to which the floodplain zoning ordinance applies to maintain eligibility for participation in the National Flood Insurance Program:

87.30(1m)(am)1. 1. The farm drainage ditch is subject to the jurisdiction of a drainage district under ch. 88.

87.30(1m)(am)2. 2. The disposal of material in a floodplain is within the drainage district corridor under s. 88.74.

87.30(1m)(am)3. 3. The lands adjacent to the corridor are maintained in nonstructural agricultural use or other nonstructural use.

87.30(1r) (1r) Land outside of floodplains. This section does not authorize a county to impose a requirement, condition, or restriction on land that is not within any floodplain in the county.

87.30(2) (2) Enforcement and penalties.

87.30(2)(a) (a) Except as provided in par. (b), every structure, building, fill, or development placed or maintained within any floodplain in violation of a zoning ordinance adopted under this section, or s. 59.69, 61.35 or 62.23 is a public nuisance and the creation thereof may be enjoined and maintenance thereof may be abated by action at suit of any municipality, the state or any citizen thereof. Any person who places or maintains any structure, building, fill or development within any floodplain in violation of a zoning ordinance adopted under this section, or s. 59.69, 61.35 or 62.23 may be fined not more than $50 for each offense. Each day during which such violation exists is a separate offense.

87.30(2)(b) (b) Paragraph (a) does not apply to a structure, building, fill, or development placed or maintained as part of a mining operation covered by a mining permit under s. 295.58 except to the extent that regulation of the placement or maintenance of the structure, building, fill, or development is required for compliance with a floodplain zoning ordinance as provided under s. 295.607 (3).

87.30 History History: 1971 c. 164; 1975 c. 232, 301, 422; 1977 c. 29 s. 1654 (8) (c); 1977 c. 437, 447; 1979 c. 34 s. 2102 (58) (b); 1981 c. 339; 1985 a. 182; 1995 a. 201, 311, 455; 1999 a. 9; 2011 a. 6; 2013 a. 1; 2015 a. 178; 2017 a. 115, 242; 2019 a. 175.

87.30 Cross-reference Cross-reference: See also ch. NR 116, Wis. adm. code.

87.30 Annotation A flood plain zoning ordinance adopted by the Department of Natural Resources under sub. (1) was a “rule” under s. 227.01. Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979).

87.30 Annotation The trial court erred when it placed the burden on the Department of Natural Resources to prove that the city’s ordinance was not reasonable and effective. City of La Crosse v. DNR, 120 Wis. 2d 168, 353 N.W.2d 68 (Ct. App. 1984).

87.30 Annotation An area need not be navigable to be a lakebed. The ordinary high water mark was determinative. State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337 (1987).

87.30 Annotation There is nothing in the Department of Natural Resources’ general grant of authority to regulate floodplains that permits the agency to write rules that nullify the discretion over variance decisions that the legislature has specifically committed to local boards of adjustment. To the extent that a department rule prohibits county boards of adjustment from granting variances from flood elevation requirements when the proper statutory standards for variances have otherwise been met, it is invalid. State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, 98-1046.

87.30 Annotation County floodplain zoning ordinances adopted by the Department of Natural Resources under this section do not need approval of town boards in order to become effective within all unincorporated areas of the county. 62 Atty. Gen. 264.

87.30 Annotation The necessity of zoning variance or amendments notice to the Department of Natural Resources under the shoreland zoning and navigable waters protection acts. Whipple, 57 MLR 25.

87.30 Annotation The public trust doctrine. 59 MLR 787.

87.30 Annotation Floodplain, wetland and shoreland regulation in Wisconsin. Johnson. WBB May 1988.

87.304 87.304 Regulation of historic property in floodplains.

87.304(1) (1) Definitions. In this section:

87.304(1)(a) (a) “Historic property” means any building, structure or object that is any of the following:

87.304(1)(a)1. 1. Individually listed on the national register of historic places in Wisconsin or the state register of historic places.

87.304(1)(a)2. 2. Included in a district which is listed on the national register of historic places in Wisconsin and has been determined by the state historical society to contribute to the historic significance of the district.

87.304(1)(a)3. 3. Individually listed on the list of locally designated historic places under s. 44.45.

87.304(1)(b) (b) “National register of historic places in Wisconsin” has the meaning given in s. 44.31 (5).

87.304(2) (2) Treatment of historic property.

87.304(2)(a) (a) The department shall by rule promulgate procedures for use by cities, villages and counties in doing all of the following:

87.304(2)(a)1. 1. Issuing variances to floodplain zoning ordinances that will be consistent with 44 CFR 60.6 but that will allow repair or rehabilitation of historic properties in floodplains to the maximum extent feasible.

87.304(2)(a)2. 2. Providing sufficient measures for public safety and protection for property in floodplains.

87.304(2)(b) (b) The rules promulgated under par. (a) may include different procedures for floodway and flood-fringe areas.

87.304 History History: 1991 a. 39; 2007 a. 96.

87.305 87.305 Use of certain facilities on St. Feriole island.

87.305(1) (1) Department approval. Notwithstanding s. 87.30 or any rule promulgated, order issued or ordinance adopted under that section, the department shall authorize the connection of a sanitary sewer line from the sewerage treatment plant in the city of Prairie du Chien and connection of the public water system of the city of Prairie du Chien to the railroad depot and the Dousman hotel on St. Feriole island and shall authorize historic use of the Dousman hotel as a hotel, as defined under s. 97.01 (7), if all of the following conditions are met:

87.305(1)(a) (a) The department approves the developer’s plans and specifications for floodproofing the railroad depot and the Dousman hotel.

87.305(1)(b) (b) The department approves the city of Prairie du Chien’s flood warning system and emergency evacuation plan and the city of Prairie du Chien agrees to test the evacuation plan at least once each year.

87.305(1)(c) (c) The department informs the U.S. army corps of engineers, the department of transportation, the division of emergency management and the state historical society of its intention to authorize connection of sewer service and a water system to the railroad depot and the Dousman hotel and occupancy of the hotel and either:

87.305(1)(c)1. 1. Those agencies do not object within 30 days after receiving a copy of the notice; or

87.305(1)(c)2. 2. Any objections of those agencies are resolved in negotiations between those agencies, the city of Prairie du Chien and the developer.

87.305(1)(d) (d) The state historic preservation officer reviews the developer’s plans for preservation or rehabilitation of the Dousman hotel and certifies that the preservation or rehabilitation will be consistent with the standards used by the U.S. secretary of the interior to certify rehabilitations under 26 USC 47 (c) (2).

87.305(2) (2) Revocation of approval. The department may revoke the approval granted under sub. (1) if any of the following occur:

87.305(2)(a) (a) A floodproofing and flood warning system are not constructed substantially as designed in the plans and specifications approved by the department under sub. (1) (a).

87.305(2)(b) (b) The owner or operator of the railroad depot and the Dousman hotel fails to maintain the floodproofing system substantially as designed in the plans and specifications approved by the department under sub. (1) (a).

87.305(2)(c) (c) The city of Prairie du Chien fails to maintain the flood warning system and to test the emergency evacuation plan at least once each year.

87.305(2)(d) (d) The state historic preservation officer determines that the preservation or rehabilitation of the Dousman hotel is not consistent with the standards used by the U.S. secretary of the interior to certify rehabilitations under 26 USC 47 (c) (2).

87.305 History History: 1987 a. 282; 1993 a. 27; 1995 a. 27, 247, 378; 1997 a. 252; 2015 a. 55.