Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB579 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 579
5	5	October 31, 2023 - Introduced by Representatives WITTKE, GREEN, BINSFELD,
6	6	KATSMA, O'CONNOR, MURPHY, GOEBEN and MELOTIK, cosponsored by Senators
7	7	STROEBEL, QUINN, NASS and FELZKOWSKI. Referred to Committee on
8	8	Environment.
9	9	*AUTHORS SUBJECT TO CHANGE*
10	10	AN ACT to renumber 30.122; to amend 30.122 (title); and to create 30.01 (1h),
11	11	30.122 (2), 30.122 (3), 30.2034, 30.2039 and 885.335 of the statutes; relating
12	12	to: use of fill in commercial waterways and Great Lakes waters.
13	13	Analysis by the Legislative Reference Bureau
14	14	This bill provides several methods for establishing the lawful public or private
15	15	use of fill placed on the bed of the Great Lakes and certain rivers and harbors.
16	16	Historic fill in commercial waterways
17	17	The bill applies, in part, to fill placed prior to 1977 that created land above the
18	18	ordinary high water mark of a commercial waterway, which is a specified list of
19	19	rivers. If the fill is unauthorized fill for which the Department of Natural Resources
20	20	has not initiated an enforcement action or is within an authorized bulkhead line and
21	21	not specifically restricted by a submerged land lease, the owner of the fill may use
22	22	the fill for any purpose.
23	23	Development of Great Lakes waterfront property
24	24	The bill provides that a city or village (municipality) may create a waterfront
25	25	development plan with respect to parcels that may have been part of the submerged
26	26	bed of a Great Lakes water at the time of statehood. The municipality must submit
27	27	required information to DNR, including a map of the parcels and a plan for
28	28	development of the parcels that details any public and private uses. Following a
29	29	public notice and comment period, DNR must approve the plan unless DNR
30	30	determines that 1) the plan does not contain the required elements, 2) proposed
31	31	private uses are inconsistent with existing lake bed grants or submerged land leases,
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37	37	3) proposed public use areas are insufficient, or 4) the plan does not contain sufficient
38	38	provisions to ensure proposed public uses will be implemented.
39	39	Amendments to existing approvals
40	40	The bill provides that a municipality may apply to DNR to amend the uses
41	41	allowed within an area of a Great Lakes water that was filled pursuant to a fill
42	42	authorization granted by the legislature or a submerged land lease. DNR must
43	43	review the proposed uses based on several criteria that generally consider whether
44	44	the proposed uses are consistent with the public interest. Following a public notice
45	45	and comment period, DNR must approve the plan unless DNR determines that the
46	46	specified criteria were not met.
47	47	Claims relating to possession or title
48	48	The bill prohibits any claim or counterclaim in an action relating to the
49	49	possession or title of any real estate if the claim or counterclaim is based on an
50	50	assertion that the property includes portions of land that may have at one time been
51	51	submerged beneath a Great Lakes water if 1) the property is upland and the use of
52	52	the land has not materially changed, 2) the property is held in fee title ownership as
53	53	determined under a Great Lakes waterfront development plan, 3) the property is
54	54	held in fee title ownership based on being separated from a Great Lakes water, or 4)
55	55	use of the property has been approved by DNR as an amended use.
56	56	The people of the state of Wisconsin, represented in senate and assembly, do
57	57	enact as follows:
58	58	SECTION 1. 30.01 (1h) of the statutes is created to read:
59	59	30.01 (1h) “Commercial waterway” includes the portions of all of the following
60	60	rivers that are within the Great Lakes basin and within incorporated areas:
61	61	(a) Ahnapee River.
62	62	(b) East River in Brown County.
63	63	(c) Fox River, but excluding Lake Winnebago, Lake Butte des Morts, Lake
64	64	Winneconne, and Lake Poygan.
65	65	(d) Kewaunee River.
66	66	(e) Kinnickinnic River.
67	67	(f) Manitowoc River.
68	68	(g) Menominee River.
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83	83	ASSEMBLY BILL 579
84	84	(h) Menomonee River.
85	85	(i) Milwaukee River.
86	86	(j) Root River.
87	87	(k) Sheboygan River.
88	88	(L) St. Louis River.
89	89	(m) West Twin River.
90	90	SECTION 2. 30.122 (title) of the statutes is amended to read:
91	91	30.122 (title) Unauthorized structures and fill.
92	92	SECTION 3. 30.122 of the statutes is renumbered 30.122 (1).
93	93	SECTION 4. 30.122 (2) of the statutes is created to read:
94	94	30.122 (2) A fill or deposit placed in a commercial waterway before December
95	95	9, 1977, that created land at an elevation above the current ordinary high water
96	96	mark and that has remained above the current ordinary high water mark since
97	97	December 9, 1977, may be used by the owner of the fill or deposit for any public or
98	98	private purpose without restrictions imposed if any of the following apply:
99	99	(a) The fill or deposit is unauthorized and the department has not initiated an
100	100	enforcement action relating to the fill or deposit prior to the effective date of this
101	101	paragraph .... [LRB inserts date].
102	102	(b) The fill or deposit is within an authorized bulkhead line established as
103	103	provided under s. 30.11 and use of the filled area is not specifically restricted by the
104	104	terms included in a submerged land lease under s. 24.39 (4).
105	105	SECTION 5. 30.122 (3) of the statutes is created to read:
106	106	30.122 (3) Nothing in this section abridges the riparian rights of riparian
107	107	owners.
108	108	SECTION 6. 30.2034 of the statutes is created to read:
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135	135	SECTION 6 ASSEMBLY BILL 579
136	136	30.2034 Amendments to existing approvals. (1) DEFINITIONS. In this
137	137	section:
138	138	(a) “Fill authorization” means the authorization of fill in an area of a Great
139	139	Lakes water by the legislature in specific legislation or a lake bed grant or by a
140	140	submerged land lease under s. 24.39.
141	141	(b) “Filled area” means an area in a Great Lakes water filled before August 8,
142	142	1989, pursuant to a fill authorization.
143	143	(c) “Grantee” means a municipality that has been granted a fill authorization.
144	144	(d) “Great Lakes water” means Lake Superior, Lake Michigan, Green Bay, or
145	145	Sturgeon Bay.
146	146	(e) Notwithstanding s. 30.01 (4), “municipality” means a city or village.
147	147	(2) APPLICATIONS BY GRANTEES. (a) A grantee may apply to the department to
148	148	amend the uses allowed within filled areas of a fill authorization.
149	149	(b) An application under par. (a) shall include all of the following information:
150	150	1. A legal description of the fill authorization and the filled area proposed to
151	151	be used.
152	152	2. A description of the proposed amendment to the existing fill authorization,
153	153	including a detailed description of the proposed uses consistent with sub. (3).
154	154	3. A determination from the governing body of the municipality approving the
155	155	proposed amendment and requesting authorization from the department.
156	156	(3) STANDARDS FOR APPROVAL. Notwithstanding s. 13.097, the department shall
157	157	evaluate applications submitted under sub. (2) based solely on whether the uses
158	158	proposed in the application meet the following criteria:
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184	184	SECTION 6
185	185	ASSEMBLY BILL 579
186	186	(a) The filled area proposed to be used is used for parking lots, public or private
187	187	buildings, roads, or railroads on the effective date of this paragraph .... [LRB inserts
188	188	date].
189	189	(b) The filled area proposed to be used does not include any area currently used
190	190	for public park purposes.
191	191	(c) The filled area proposed to be used remains under the ownership and control
192	192	of the municipality, except as follows:
193	193	1. The municipality may grant easements, licenses, or leases to public or
194	194	private entities.
195	195	2. The municipality may convey a filled area to a private entity in possession
196	196	of adjacent private land that can be exchanged for the filled area and used for public
197	197	purposes.
198	198	3. If the filled area is in use by private entities as of the effective date of this
199	199	subdivision .... [LRB inserts date], whether under color of title or otherwise, any use
200	200	may continue.
201	201	(d) The application allows reasonably adequate public access to the Great
202	202	Lakes water and its shoreline.
203	203	(e) The application is consistent with any waterfront development plan
204	204	approved under s. 30.2039 (2) (d).
205	205	(f) The application promotes the public interest, which may include the
206	206	enhancement of navigation or public rights in navigable waters, recreational uses,
207	207	public facilities, and public transportation, the elimination of blight, the remediation
208	208	of brownfields, and other private economic development consistent with enhancing
209	209	public access and use of the waterfront area.
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235	235	SECTION 6 ASSEMBLY BILL 579
236	236	(4) DEPARTMENT APPROVAL OF APPLICATIONS. (a) No later than 30 days after
237	237	receiving an application under sub. (2), the department shall provide public notice
238	238	by publishing a class 2 notice under ch. 985 and by posting notice on the department's
239	239	website. The notice shall provide an opportunity for members of the public to provide
240	240	comments and request a public hearing. If a public hearing is requested, notice of
241	241	the public hearing shall be provided by publishing a class 2 notice under ch. 985 and
242	242	by posting notice on the department's website.
243	243	(b) No later than 60 days following public notice under par. (a) or 60 days
244	244	following a public hearing requested under par. (a), whichever is later, the
245	245	department shall make a determination under par. (c).
246	246	(c) The department shall approve an application submitted under sub. (2) and
247	247	determine the proposed amended uses are consistent with the public interest unless
248	248	the department determines that the criteria under sub. (3) were not satisfied.
249	249	SECTION 7. 30.2039 of the statutes is created to read:
250	250	30.2039 Great Lakes waterfront property. (1) DEFINITIONS. In this section:
251	251	(a) “Great Lakes water” means Lake Superior, Lake Michigan, Green Bay, or
252	252	Sturgeon Bay.
253	253	(b) Notwithstanding s. 30.01 (4), “municipality” means a city or village.
254	254	(c) “Public use” means public access and use, including access to and use of
255	255	parkland, trails and roads, and public recreational facilities.
256	256	(d) “Record title holder” means a person with a claim of ownership of property
257	257	based on a recorded conveyance of an ownership interest in the property.
258	258	(e) “Upland” means property that remained at an elevation above the current
259	259	ordinary high water mark from December 9, 1977, to the effective date of this
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286	286	SECTION 7
287	287	ASSEMBLY BILL 579
288	288	paragraph .... [LRB inserts date], other than for temporary maintenance activities
289	289	or because of accretion or reliction.
290	290	(2) WATERFRONT DEVELOPMENT PLAN. (a) Authority. A municipality may create
291	291	a waterfront development plan with respect to parcels that include land that may
292	292	have been part of the submerged bed of a Great Lakes water at the time of statehood.
293	293	(b) Elements of the plan. A municipality shall include all of the following
294	294	information in a waterfront development plan under this subsection:
295	295	1. A map identifying parcels of land that are subject to the proposed plan area.
296	296	2. An approximate delineation of the shoreland at statehood based on existing
297	297	government survey maps.
298	298	3. A delineation of upland areas. In determining whether portions of the
299	299	proposed plan area are upland, the municipality may use photographs, survey data,
300	300	publicly available global positioning system mapping, geographic information
301	301	system mapping, or other documentation.
302	302	4. A delineation of any area that is subject to a lake bed grant or a submerged
303	303	land lease or a shoreline established under s. 30.2038.
304	304	5. An overall plan for the development of the proposed plan area, including a
305	305	map showing areas that will be dedicated to the public for public use and areas that
306	306	will allow for private uses. The boundary between the proposed public use areas and
307	307	remaining areas shall be surveyed and delineated on the map under subd. 1.
308	308	6. A description of areas and types of proposed public use and any restrictions
309	309	to be proposed on public use for safety or security reasons. The plan shall describe
310	310	how the public use areas will be accessible to the public.
311	311	7. A plan for implementing and enforcing the development of the public use
312	312	areas, including appropriate ordinances.
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339	339	SECTION 7 ASSEMBLY BILL 579
340	340	(c) Plan review. 1. The municipality shall consult with any record title holders
341	341	within the plan area proposed under par. (b) prior to approval by the municipality.
342	342	2. Upon adoption of the waterfront development plan by the municipality, the
343	343	municipality shall provide the plan to the department for review and approval.
344	344	3. No later than 30 days after receiving a request for review under this
345	345	paragraph, the department shall provide public notice by publishing a class 2 notice
346	346	under ch. 985 and by posting notice on the department's website. The notice shall
347	347	provide an opportunity for members of the public to provide comments and request
348	348	a public hearing. If a public hearing is requested, notice of the public hearing shall
349	349	be provided by publishing a class 2 notice under ch. 985 and by posting notice on the
350	350	department's website.
351	351	4. No later than 60 days following public notice under subd. 3. or 60 days
352	352	following a public hearing requested under subd. 3., whichever is later, the
353	353	department shall make a determination under par. (d).
354	354	(d) Determinations by the department. The department shall approve, or
355	355	approve with conditions, a plan submitted under par. (c) 2. unless the department
356	356	determines any of the following:
357	357	1. The plan does not meet the requirements of par. (b).
358	358	2. The plan includes proposed private uses that are inconsistent with existing
359	359	lake bed grants or submerged land leases.
360	360	3. The public use areas are insufficient. In determining the sufficiency of the
361	361	public use areas, the department shall base its decision on the value of increased
362	362	public access and use compared to the use existing at the time of the submission of
363	363	the plan under par. (c) 2., the need for private development to fund and support public
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390	390	SECTION 7
391	391	ASSEMBLY BILL 579
392	392	access and use, and the relative amount and quality of public and private use areas
393	393	in light of the overall site characteristics.
394	394	4. The plan does not contain sufficient provisions to ensure that the public uses
395	395	proposed in the plan will be implemented.
396	396	(e) Effect of determination. 1. An approval under par. (d) constitutes a
397	397	determination by the department that the public interest is served by
398	398	implementation of the plan and the boundary established between land that is held
399	399	in trust by the state or is otherwise publicly owned and land held in private fee title
400	400	ownership is in the public interest.
401	401	2. Following an approval under par. (d), the applicant shall record the approval
402	402	with the register of deeds and the department shall post the approval on the
403	403	department's website. Upon implementation of the plan approved under par. (d), and
404	404	any conditions imposed in the approval, the boundary between land that is held in
405	405	trust by the state or is otherwise publicly owned and land held in private fee title
406	406	ownership shall have the same effect as if the boundary were confirmed in a quiet
407	407	title action granted by a court under s. 841.10.
408	408	3. This section does not alter the right of property owners to seek a quiet title
409	409	action under common law.
410	410	(f) Boundary amendments. A municipality may seek to amend a public use
411	411	boundary approved under par. (d) by preparing and submitting a new plan as
412	412	provided under pars. (b) and (c).
413	413	(3) TITLE TO NONRIPARIAN PARCELS. A parcel that may include areas that were
414	414	part of the submerged bed of a Great Lakes water at the time of statehood and that
415	415	remained separated from a Great Lakes water by one or more other parcels from
416	416	December 9, 1977, to the effective date of this subsection .... [LRB inserts date], and
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443	443	SECTION 7 ASSEMBLY BILL 579
444	444	for which there is a record title holder, is deemed to be not part of the lake bed of a
445	445	Great Lakes water and to be held in fee title ownership. For land held in fee title
446	446	ownership as determined under this subsection, this determination operates in the
447	447	same manner as if a person were granted quiet title to the property by a court under
448	448	s. 841.10.
449	449	(4) EXCEPTION FOR EXISTING USES. The department shall treat upland property
450	450	adjacent to a Great Lakes water, all or part of which may have been land that was
451	451	part of the submerged lake bed of the Great Lakes water at the time of statehood, as
452	452	riparian property and owned by the record title holder for purposes of exercising any
453	453	regulatory authority, if the property includes portions of land that are upland and
454	454	the use of such property has not materially changed since the effective date of this
455	455	subsection .... [LRB inserts date]. In this subsection, “materially changed” means a
456	456	material modification or termination of an existing use and does not include the
457	457	maintenance, repair, replacement, restoration, rebuilding, remodeling, or expansion
458	458	of any part of any existing structure or the transfer of the property.
459	459	SECTION 8. 885.335 of the statutes is created to read:
460	460	885.335 Actions concerning real estate abutting Great Lakes water. No
461	461	claim or counterclaim may be made in an action relating to the possession or title of
462	462	any real estate if the claim or counterclaim is based on an assertion that the property
463	463	includes portions of land that may have at one time been submerged beneath a Great
464	464	Lakes water if any of the following apply:
465	465	(1) The property is upland, as defined in s. 30.2039 (1) (e), and the use of the
466	466	property has not materially changed, as defined in s. 30.2039 (4).
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492	492	SECTION 8
493	493	ASSEMBLY BILL 579
494	494	(2) The property was designated as land held in fee title ownership by a
495	495	determination made under s. 30.2039 (2) (d) that establishes the boundary between
496	496	land held in trust by the state and land held in fee title ownership.
497	497	(3) The property is held in fee title ownership as determined under s. 30.2039
498	498	(3).
499	499	(4) The use of the property is approved under s. 30.2034.
500	500	(END)
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