Wisconsin Legislative Council
AMENDMENT MEMO
One Ea st Ma in Stre e t, Suite 401 • Ma dison, W I 53703 • (608) 266-1304 • le g.council@le gis.wisconsin.gov • http://www.le gis.wisconsin.gov/lc
Memo published: January 17, 2024 Contact: Ethan Lauer, Senior Staff Attorney
2023 Assembly Bill 579
Assembly Substitute
Amendment 1
BACKGROUND
Along Wisconsin’s Great Lakes shoreline and in certain rivers, existing fill and deposits resulting from
old industrial activity, natural changes, or other waterway impacts typically cannot be developed or
used without a state permit, established bulkhead line, or submerged lake bed lease. Those methods for
approving use are subject to public interest determinations, as specified in the statutes and in case law
interpreting the public trust doctrine.
Under the public trust doctrine, the state generally holds the title to the beds of lakes in the state, to be
held in trust for public use. [Illinois Steel Co. v. Bilot, 84 N.W. 855 (Wis. 1901).] Conversely, riparian
owners own “qualified” title to river beds, subject to the rights of navigational use and other recognized
forms of public use by others.
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[See Ashwaubenon v. PSC, 22 Wis. 2d 38 (1963).]
The Wisconsin Supreme Court has held that the Legislature may grant or allow encroachments in
certain portions of navigable waters. Under key legal precedents, such grants and encroachments
generally must be used for purposes of public navigation or recreation. [Angelo v. Railroad
Commission, 217 N.W. 570 (Wis. 1928); State v. PSC, 81 N.W.2d 71 (Wis. 1957).]
The case law is somewhat less straightforward as applied to use of existing encroachments, particularly
where there may be no clear evidence of a historical shoreline, or where processes of accretion
(accumulation of sand or soil) or reliction (erosion of sand or soil) may have shifted boundaries over
time, including in situations where natural accretion may have been aided by artificial construction. In
such cases, the Wisconsin Supreme Court has upheld shoreline determinations that may allow private
ownership of small parts of historic lake bed. [See, e.g., City of Milwaukee v. State, 214 N.W. 820 (Wis.
1927); W. H. Pugh Coal Co. v. State, 105 Wis. 2d 123, 126-27 (Wis. Ct. App. 1981).]
2023 ASSEMBLY BILL 579
In relevant part, 2023 Assembly Bill 579: (1) authorizes the use of existing fill in certain commercial
river areas; (2) creates a process for a city or village to amend the uses allowed within certain filled
areas of the Great Lakes; (3) creates a process for a city or village to develop certain land that may have
been a formerly submerged bed of a Great Lakes water; and (4) deems fee title ownership of certain
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That distinction may provide an argument supporting a greater degree of flexibility for the Legislature, as the trustee
under the public trust doctrine, to determine the permitted uses of historic river beds as opposed to historic lake beds.
Wisconsin statutes and administrative code provisions also recognize this distinction. For example, an applicant may
seek a Department of Natural Resources (DNR) permit to change the course of a stream and put the former location of
the stream to a purely private use. [s. 30.195, Stats.] In contrast, a permit is not available to “move” a lake. In addition,
s. 13.097, Stats., which requires the DNR to prepare a report enumerating public trust implications of any lake bed
grant, has no analogue for river beds. - 2 -
land that may have been a formerly submerged bed of a Great Lakes water, but now is separated from
the water by another parcel.
Assembly Substitute Amendment 1 retains the bill’s overall framework and approach, but with some
modifications, as described below. The amendment also prevents DNR from preparing a statutorily
required report.
Use of Existing Fill in Certain Commercial River Areas
Bill
The bill authorizes the use of fill placed in a specified list of commercial river areas located within a city
or village for any public or private purpose without restrictions imposed, if the fill: (1) was
placed before December 9, 1977; (2) created land that has been at an elevation above the ordinary high
water mark (OHWM) since that date; and (3) is either within a bulkhead line (and not otherwise
restricted by the terms of a submerged land lease) or was unauthorized but has not been subject to a
DNR enforcement action.
Amendment
Instead of allowing the fill to be used by the owner of the fill for any public or private purpose without
restrictions imposes, the substitute amendment provides that the fill is considered land held in
private fee title ownership and not subject to a navigational servitude.
Amending Uses of Great Lakes Filled Areas
Bill
The bill creates a process for a city or village to amend the uses allowed within an area in a Great Lakes
water that was filled before August 8, 1989, pursuant to authorization in specific legislation, a lake bed
grant, or a submerged land lease. The process begins with an application submitted by the municipality
to DNR. The application must include a legal description of the authorization and the filled area, a
description of the proposed amendment to the existing authorization, and a determination by the
governing body of the municipality approving the proposed amendment.
DNR must evaluate an application based solely on whether the proposed uses meet various criteria,
including the following:
The area proposed to be used remains under the ownership and control of the municipality,
except as follows:
o The municipality may grant easements, licenses, or leases to public or private entities.
o The municipality may convey a filled area to a private entity in possession of adjacent private
land that can be exchanged for the filled area and used for public purposes.
o Any existing use by private entities may continue.
The application allows reasonably adequate public access to a Great Lake and its shoreline.
The application promotes the public interest, which may include the enhancement of
navigation or public rights in navigable waters, recreational uses, public facilities, and public
transportation, the elimination of blight, the remediation of brownfields, and other private
economic development consistent with enhancing public access and use of the waterfront area.
Not later than 30 days after receiving an application, DNR must provide notice and an opportunity for
the public to submit comments and request a hearing. Not later than 60 days after providing notice, or - 3 -
60 days after holding a hearing, DNR must approve the application unless it determines that the
criteria listed above are not satisfied.
Amendment
The substitute amendment retains the overall process for a municipality to receive permission to amend
the uses allowed within a Great Lakes filled area, but modifies the criteria and process used by DNR in
evaluating an application.
The substitute amendment removes the requirement that DNR must evaluate an application based
solely on whether the proposed uses meet the stated criteria, and replaces the criteria described above
with the following:
The area proposed to be used must remain under the ownership and control of the
municipality, except that the municipality may grant leases or licenses to private or public
entities, subject to compliance with the other stated criteria.
The application must promote appropriate public uses consistent with the public interest,
which may include concessions
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open to the public under long-term lease with the municipality.
The application must promote other public objectives, which may include the elimination of
blight, the remediation of brownfields, and other private economic development benefits.
The application must include appropriate mechanisms for DNR enforcement .
Under the substitute amendment, DNR must hold a hearing not later than 90 days after receiving an
application and must make a determination on whether to approve the application not later than
90 days after the hearing, unless DNR and the applicant agree to extend that timeline. A failure of DNR
to act on an application within the relevant timeline may not be deemed to be an approval by DNR. A
determination on an application is subject to review under ch. 227, Stats.
Developing Former Lake Bed of a Great Lakes Water
Bill
The bill creates a process for a city or village to create a waterfront development plan with respect to
parcels that may have been submerged bed of a Great Lakes water at the time of statehood. The process
begins with a plan submitted by the municipality to DNR, including a map of areas that will be
dedicated to the public for public use, areas that will allow private use, and the boundary between them.
The plan must include various other elements, including the following:
A description of areas and types of proposed public use and any restrictions for safety or security
reasons.
A plan for implementing and enforcing the development of the public use areas, including
appropriate ordinances.
Not later than 30 days after receiving a plan, DNR must provide notice and an opportunity for the
public to submit comments and request a hearing. Not later than 60 days after providing notice, or 60
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“Concession” means a structure or facility that provides lodging, restaurant and food and beverage services, or retail
services that support public access and use of navigable waters. - 4 -
days after holding a hearing, DNR must approve the plan, or approve the plan with conditions,
unless it makes certain determinations, including the following:
The public use areas are insufficient, based on the value of increased public access and use
compared to existing use, the need for private development to fund and support public access and
use, and the relative amount and quality of public and private use areas in light of overall site
characteristics.
The plan does not contain sufficient provisions to ensure that the public uses will be
implemented.
An approval by DNR constitutes a determination that the public interest is served by the plan, and that
the boundary between land held in trust by the state and land held in private fee title is in the public
interest. Upon implementation of the plan, that boundary shall have the same effect as if the boundary
were confirmed in a quiet title action granted by a court.
Amendment
The substitute amendment retains the overall process for a municipality to obtain approval of a
waterfront development plan and also the legal effect of a DNR approval. However, the substitute
amendment modifies the required elements of a plan submitted by a municipality and modifies the
criteria and process used by DNR in evaluating a plan.
The substitute amendment modifies the two elements of the plan described above, as follows:
In the description of areas and types of proposed public use, the plan must describe how the
public use is consistent with the standards by which DNR evaluates the plan.
In the plan for implementing and enforcing the development of the public use areas, the plan
must include a plan for perpetual maintenance of the public use areas, must require that the record
title holder grant an easement to DNR ensuring that future use of the public areas will be consistent
with the plan, and must include appropriate mechanisms for DNR enforcement.
Under the substitute amendment, DNR must hold a hearing not later than 90 days after receiving a
plan and must make a determination on whether to approve the plan not later than 90 days after the
hearing, unless DNR and the applicant agree to extend that timeline. A failure of DNR to act on a plan
within the relevant timeline may not be deemed to be an approval by DNR. A determination on a plan is
subject to review under ch. 227, Stats.
The substitute amendment clarifies that DNR may impose additional restrictions and conditions on a
plan. It also provides that DNR may not approve a plan unless it makes certain determinations,
including the following (which replace the two determinations described above):
The amount and location of the public use areas are appropriate to protect the public
interest. Appropriate public uses in public use areas may include concessions open to the public
under a long-term lease with a municipality if the uses are consistent with the public interest.
In the part of the plan requiring sufficient provisions to ensure that the public uses proposed in the
plan will be implemented, the substitute amendment requires that the public uses will be
perpetually maintained. - 5 -
Former Lake Bed Now Separated From the Water by Another Parcel
Bill
The bill deems a parcel of land to not be part of the lake bed of a Great Lakes water and to be held in fee
title ownership if it meets the following criteria:
The parcel has remained separated from the water by one or more parcels since December 9, 1977.
There is a record title holder for the parcel.
Amendment
The substitute amendment adds the following additional criteria that must be met:
The parcel must not have been filled pursuant to specific legislation, a lake bed grant, or a
submerged land lease.
DNR Report on Legislation Providing for Conveyance of Lake Bed Area
Current law requires DNR to submit to the Legislature a report on any legislation that conveys a lake
bed area or that amends a prior conveyance of a lake bed area. The substitute amendment prevents
DNR from preparing such a report on the bill.
BILL HISTORY
Representative Wittke offered Assembly Substitute Amendment 1 on January 9, 2024. On January 11,
2024, the Assembly Committee on Environment recommended adoption of the substitute amendment,
and passage of the bill, as amended, each on a vote of Ayes, 5; Noes, 3.
For a full history of the bill, visit the Legislature’s bill history page.
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