Date of enactment: March 27, 2024
2023 Senate Bill 541 Date of publication*: March 28, 2024
2023 WISCONSIN ACT 247
AN ACT to create 30.2034, 30.2039 and 885.335 of the statutes; relating to: use of fill in certain waterways.
The people of the state of Wisconsin, represented in
senate and assembly, do enact as follows:
SECTION 1. 30.2034 of the statutes is created to read:
30.2034 Change to existing approvals. (1) DEFINI-
TIONS. In this section:
(a) “Fill authorization” means the authorization of
fill in an area of a Great Lakes water by the legislature in
specific legislation or a lake bed grant or by a submerged
land lease under s. 24.39.
(b) “Filled area” means an area in a Great Lakes
water filled before August 8, 1989, pursuant to a fill
authorization.
(c) “Grantee” means a municipality that has been
granted a fill authorization.
(d) “Great Lakes water” means Lake Superior, Lake
Michigan, Green Bay, or Sturgeon Bay.
(e) Notwithstanding s. 30.01 (4), “municipality”
means a city or village.
(2) APPLICATIONS BY GRANTEES. (a) A grantee may
apply to the department to change the uses allowed
within filled areas of a fill authorization.
(b) An application under par. (a) shall include all of
the following information:
1. A legal description of the fill authorization and the
filled area proposed to be used.
2. A description of the proposed change to the exist-
ing fill authorization, including a detailed description of
the proposed uses consistent with sub. (3).
3. A determination from the governing body of the
municipality approving the proposed change and
requesting authorization from the department.
(3) STANDARDS FOR APPROVAL. The department shall
evaluate applications submitted under sub. (2) based on
whether the uses proposed in the application meet the fol-
lowing criteria:
(a) The filled area proposed to be used is used for
parking lots, public or private buildings, roads, or rail-
roads on the effective date of this paragraph .... [LRB
inserts date].
(b) The filled area proposed to be used does not
include any area currently used for public park purposes.
(c) The filled area proposed to be used remains under
the ownership and control of the municipality. In this
paragraph, “ownership and control” includes leases or
licenses to private or public entities for the provision of
concessions, as defined under s. 30.2039 (1) (a), subject
to compliance with the other criteria under this subsec-
tion.
(d) The application is consistent with any waterfront
development plan approved under s. 30.2039 (2) (d).
* Section 991.11, WISCONSIN STATUTES: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor’s
partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication.” − 2 −2023 Wisconsin Act 247 2023 Senate Bill 541
(e) The application promotes appropriate public uses
consistent with the public interest, and may include con-
cessions, as defined in s. 30.2039 (1) (a), open to the pub-
lic under long−term lease with the municipality, if the
concessions provide a significant public benefit to the
public interest in navigable waters.
(f) The application includes appropriate mechanisms
for department enforcement.
(g) The application promotes other public objectives,
which may include the elimination of blight, the remedia-
tion of brownfields, and other private economic develop-
ment benefits.
(h) The application requires that the proceeds from
any lease or license to private or public entities to create
or operate a concession, as defined in s. 30.2039 (1) (a),
be used by the municipality to promote the public interest
in navigable waters pursuant to a plan approved by the
department. This paragraph does not apply to revenue
from real property taxes received by the municipality.
(4) DEPARTMENT APPROVAL OF APPLICATIONS. (a) No
later than 90 days after receiving an application under
sub. (2), the department shall hold a public hearing and
provide public notice by publishing a class 2 notice under
ch. 985 and by posting notice on the department’s web-
site.
(b) No later than 90 days following the public hearing
under par. (a), the department shall make a determination
on whether to approve the application under sub. (2). The
department and the applicant may agree to extend this
timeline. The failure of the department to act within 90
days or within any timeline agreed to by the department
and the applicant may not be deemed to be an approval
by the department.
(c) Determinations made under par. (b) are subject to
review under ch. 227.
SECTION 2. 30.2039 of the statutes is created to read:
30.2039 Great Lakes and river waterfront prop-
erty. (1) DEFINITIONS. In this section:
(a) “Concession” means a private allowable use that
is a structure or facility that provides lodging, restaurant
and food and beverage services, or retail services sup-
porting the public interest in navigable waters and that
support public access and use of navigable waters.
(b) “Great Lakes water” means Lake Superior, Lake
Michigan, Green Bay, or Sturgeon Bay.
(c) Notwithstanding s. 30.01 (4), “municipality”
means a city or village.
(d) “Public use” means public access and use, includ-
ing the provision of, access to, and use of parkland, trails
and roads, and public recreational facilities.
(e) “Record title holder” means a person with a claim
of ownership of property based on a recorded con-
veyance of an ownership interest in the property.
(f) “Upland” means property that remained at an ele-
vation above the current ordinary high water mark from
December 9, 1977, to the effective date of this paragraph
.... [LRB inserts date], other than for temporary mainte-
nance activities or because of accretion or reliction.
(2) WATERFRONT DEVELOPMENT PLAN. (a) Authority.
A municipality may create a waterfront development
plan with respect to parcels that include land that may
have been part of a riverbed or that may have been part
of the submerged bed of a Great Lakes water at the time
of statehood.
(b) Elements of the plan. A municipality shall
include all of the following information in a waterfront
development plan under this subsection:
1. A map identifying parcels of land that are subject
to the proposed plan area.
2. An approximate delineation of the shoreland at
statehood based on existing government survey maps.
3. A delineation of upland areas. In determining
whether portions of the proposed plan area are upland,
the municipality may use photographs, survey data, pub-
licly available global positioning system mapping, geo-
graphic information system mapping, or other documen-
tation.
4. A delineation of any area that is subject to a lake
bed grant or a submerged land lease, a bulkhead line
established under s. 30.11, or a shoreline established
under s. 30.2038.
5. An overall plan for the development of the pro-
posed plan area, including a map showing areas that will
be dedicated to the public for public use and areas that
will allow for private uses. The boundary between the
proposed public use areas and remaining areas shall be
surveyed and delineated on the map under subd. 1.
6. A description of areas and types of proposed public
use consistent with the standards established under par.
(d) and any restrictions on public use to be proposed for
safety or security reasons. The plan shall describe how
the public use areas will be accessible to the public.
7. A plan for implementing and enforcing the devel-
opment and perpetual maintenance of the public use
areas, including appropriate ordinances. The plan shall
require that the record title owner grant an easement to
the department ensuring that future use of public use
areas will be consistent with the plan and shall include
appropriate mechanisms for department enforcement.
(c) Plan review. 1. The municipality shall consult
with any record title holders within the plan area pro-
posed under par. (b) prior to approval by the municipality.
2. Upon adoption of the waterfront development plan
by the municipality, the municipality shall provide the
plan to the department for review and approval.
3. No later than 90 days after receiving a request for
review under this paragraph, the department shall hold a
public hearing and shall provide public notice by publish-
ing a class 2 notice under ch. 985 and by posting notice
on the department’s website.
4. No later than 90 days following the public hearing
under subd. 3., the department shall make a determina- − 3 − 2023 Wisconsin Act 247 2023 Senate Bill 541
tion under par. (d). The department and the applicant may
agree to extend this timeline. The failure of the depart-
ment to act within 90 days or within any timeline agreed
to by the department and the applicant may not be
deemed to be an approval by the department.
(d) Determinations by the department. The depart-
ment may impose additional restrictions and conditions
on a plan submitted under par. (c) 2. but may not approve
a plan, with or without additional restrictions and condi-
tions, unless the department determines all of the follow-
ing:
1. The plan meets the requirements of par. (b).
2. The uses proposed in the plan are not inconsistent
with existing lake bed grants or submerged land leases.
3. The private uses proposed in the plan will not
materially affect the public interest in navigable waters.
4. The amount and location of the public use areas to
be developed and maintained under the plan provide a
substantial benefit to the public interest in navigable
waters. Appropriate uses in public use areas may include
concessions open to the public under long−term lease
with a municipality if the concessions provide a signifi-
cant benefit to the public interest in navigable waters.
5. The plan contains sufficient provisions to ensure
that the public uses proposed in the plan will be imple-
mented and perpetually maintained.
6. The plan requires that the proceeds from any lease
or license to private or public entities to create or operate
a concession be used by the municipality to promote the
public interest in navigable waters pursuant to a plan
approved by the department. This paragraph does not
apply to revenue from real property taxes received by the
municipality.
7. The boundary established in the plan will not result
in a substantial impairment of the public interest in navi-
gable waters and is incidental to the development and
perpetual maintenance of the public use areas of the plan.
(e) Effect of determination. 1. An approval under
par. (d) constitutes a determination by the department
that the public interest in navigable waters is served by
implementation of the plan and, with respect to areas that
may have been part of the submerged bed of a Great
Lakes water at the time of statehood, the boundary estab-
lished between land that is held in trust by the state or is
otherwise publicly owned and land held in private fee
title ownership is in the public interest in navigable
waters.
2. Following an approval under par. (d), the applicant
shall record the approval with the register of deeds and
the department shall post the approval on the depart-
ment’s website. Upon implementation of the portions of
the plan approved under par. (d) that relate to the public
use areas, and any conditions imposed in the approval
related to those areas, areas designated for private use
that may have been part of a riverbed at the time of state-
hood shall not be subject to a navigational servitude and,
for areas that may have been part of the submerged bed
of a Great Lakes water at the time of statehood, the
boundary between land that is held in trust by the state or
is otherwise publicly owned and land held in private fee
title ownership shall have the same effect as if the bound-
ary were confirmed in a quiet title action granted by a
court under s. 841.10.
3. This section does not alter the right of property
owners to seek a quiet title action under common law.
(f) Boundary amendments. A municipality may seek
to amend a public use boundary approved under par. (d)
only by preparing and submitting a new plan using the
process under this subsection.
(g) Review. Determinations made under par. (d) are
subject to review under ch. 227.
(3) TITLE TO NONRIPARIAN PARCELS. A parcel that may
include areas that were part of the submerged bed of a
Great Lakes water at the time of statehood and that
remained separated from a Great Lakes water by one or
more other parcels from December 9, 1977, to the effec-
tive date of this subsection .... [LRB inserts date], for
which there is a record title holder, and that is not subject
to a fill authorization as defined in s. 30.2034 (1) (a), is
deemed to be not part of the lake bed of a Great Lakes
water and to be held in fee title ownership. For land held
in fee title ownership as determined under this subsec-
tion, this determination operates in the same manner as
if a person were granted quiet title to the property by a
court under s. 841.10.
(4) EXCEPTION FOR EXISTING USES. The department
shall treat upland property adjacent to a Great Lakes
water, all or part of which may have been land that was
part of the submerged lake bed of the Great Lakes water
at the time of statehood, as property owned by the record
title holder for purposes of exercising any regulatory
authority, if the property includes portions of land that are
upland and the use of such property has not materially
changed since the effective date of this subsection ....
[LRB inserts date]. In this subsection, “materially
changed” means a material modification or termination
of an existing use and does not include the maintenance,
repair, replacement, restoration, rebuilding, or remodel-
ing of any part of any existing structure or the transfer of
the property. This subsection may not be construed as
authorizing the combining of existing uses on multiple
properties for the purposes of this subsection.
SECTION 3. 885.335 of the statutes is created to read:
885.335 Actions concerning real estate abutting
Great Lakes water. (1) No claim or counterclaim may
be made in an action relating to the possession or title of
any real estate if the claim or counterclaim is based on an
assertion that the property includes portions of land that
may have at one time been submerged beneath a Great
Lakes water if any of the following apply: − 4 −2023 Wisconsin Act 247 2023 Senate Bill 541
(a) The property is upland, as defined in s. 30.2039
(1) (f), and the use of the property has not materially
changed, as defined in s. 30.2039 (4).
(b) The property was designated as land held in fee
title ownership by a determination made under s. 30.2039
(2) (d) that establishes the boundary between land held in
trust by the state and land held in fee title ownership.
(c) The property is held in fee title ownership as
determined under s. 30.2039 (3).
(d) The use of the property is approved under s.
30.2034.
(2) This section does not apply to administrative and
judicial review of decisions of the department of natural
resources under s. 30.2034 or 30.2039 or ch. 227.
SECTION 4.0Nonstatutory provisions.
(1) Notwithstanding s. 13.097 (2), the department of
natural resources may not prepare a report under s.
13.097 (2) (a) for this bill.