AB514: Bill Text

Note: This provision is new. It authorizes ordinances that are of concern only to an individual town, village, or city. The provisions regarding priority of local governmental unit authority in sub. (7) (c) make it clear that a town, village, or city ordinance related only to local issues supersedes inconsistent provisions of any other ordinance applicable to the same body of water. The scope of these ordinances of local concern is limited by sub. (5) (h).

AB514,113,5 (b) Counties. 1. A county that has both banks of a stream within the county boundaries may enact ordinances applicable to that portion of the stream.

Note: "Stream" is used instead of "river or stream", which is used in the current statute. There is not a substantive distinction between these 2 terms.

AB514,113,7 2. A county that has the entire shore of an inland lake within the county boundaries may enact ordinances applicable to that lake.

AB514,113,9 2g. A county ordinance enacted under subd. 2. is void if the ordinance is enacted with respect to a lake for which an ordinance is enacted under par. (a) 1., (c), or (d).

AB514,113,12 2r. A county ordinance enacted under subd. 2 with respect to a lake for which an ordinance has not been enacted under par. (a) 1., (c), or (d) is void if any of the following applies:

AB514,113,15 a. The entire shoreline of the lake is within the boundaries of a city, village, or town that adopts a resolution declaring the county ordinance void, and the city, village, or town files a copy of the resolution with the department.

AB514,113,20 b. At least 50% of the cities, villages, or towns with a portion of the shoreline of the lake within the boundaries of the city, village, or town adopt a resolution declaring the county ordinance void, a copy of the resolution is filed with the department, and at least 40% of the footage of shoreline of the lake is within the boundaries of those cities, villages, or towns.

Note: This provision is new. Counties have authority under the current statutes to enact ordinances related only to streams and county marina developments. This bill gives counties the authority to enact ordinances related to an inland lake if the entire shore of the inland lake is within the county boundaries. The county is not required to obtain authorization from the towns, villages, or cities bordering the lake. A county is not required to enact ordinances for all lakes, but rather may determine which lakes within the county merit regulation. Although not stated in the bill, it is obvious that one or more towns, villages, or cities bordering the lake may request the county to enact an ordinance.

Under the current statute, the primary authority to enact boating regulations, or to delegate authority to enact boating regulations, rests with the towns, villages, and cities. Although counties are given authority in this bill to enact boating ordinances, the preeminent authority of towns, villages, and cities is retained. If a town, village, or city enacts an ordinance applicable to a lake or adopts a resolution declaring the county ordinance void, the county ordinance is void with respect to that lake. Similarly, the towns, villages, or cities with concurrent jurisdiction of a lake may adopt a resolution declaring the county ordinance void, if the requisite number of municipalities do so, as provided in this bill. Finally, a town sanitary district or lake district that enacts an ordinance pursuant to authority granted by the towns, villages, or cities bordering a lake renders the county ordinance on that lake void.

AB514,114,2 3. A county may enact ordinances applicable to outlying waters that are contiguous to the county.

Note: The current statute authorizes a town, village, or city to enact ordinances applicable to "waters of this state within its jurisdiction". Municipal jurisdiction of outlying waters is determined by the municipal charter. It appears that there is some variability in jurisdiction, with the jurisdiction of some municipalities ending at the water's edge and others extending into the Great Lakes for varying distances. It does not appear that there is substantial reason for towns, villages, or cities to adopt boating regulations on the Great Lakes other than in the near-shore areas. Therefore, this bill provides that counties may enact ordinances applicable to outlying waters. Towns, villages, and cities have authority in sub. (4) (a) 3. to enact ordinances of local concern on outlying waters, whether or not the county has adopted ordinances on those waters.

AB514,114,5 4. A county that operates a marina development adjacent to waters of this state may enact ordinances that relate to the development, operation, and use of the marina and the waters adjoining the marina.

AB514,114,9 (c) Multiple cities, villages, and towns; inland lakes. A city, village, or town may enact ordinances applicable to an inland lake if the city, village, or town has a portion of the shoreline of the lake within the boundaries of the city, village, or town and all of the following apply:

AB514,114,11 1. At least 50% of the cities, villages, or towns with a portion of shoreline of the lake within their boundaries enact an identical ordinance.

AB514,115,2 2. At least 60% of the footage of shoreline of the lake is within the boundaries of the cities, villages, and towns that enact an identical ordinance.

AB514,115,7 (d) Town sanitary district or lake district. A town sanitary district or public inland lake protection and rehabilitation district may enact ordinances applicable to an inland lake if at least 60% of the footage of the shoreline of the lake is within the town sanitary district or public inland lake protection and rehabilitation district boundary and all of the following apply:

AB514,115,11 1. At least 50% of the cities, villages, or towns with a portion of the shoreline of the lake within their boundaries adopt a resolution authorizing the town sanitary district or public inland lake protection and rehabilitation district to enact the ordinance.

AB514,115,13 2. At least 60% of the footage of shoreline of the lake is within the boundaries of the cities, villages, and towns that adopt the resolution.

AB514,115,17 (e) Multiple cities, villages, towns, and counties; streams. 1. A city, village, or town that is contiguous to a stream may enact ordinances applicable to any portion of the stream if each city, village, or town that is contiguous to that portion of the stream on the opposite bank enacts an identical ordinance.

AB514,115,20 2. A county that is contiguous to a stream may enact ordinances applicable to any portion of the contiguous stream if each county that is contiguous to that portion of the stream on the opposite bank enacts an identical ordinance.

Note: The current statute does not distinguish between streams within and streams contiguous to a county, town, village, or city. This bill makes that distinction, and requires identical ordinances in the latter case. (The requirement to adopt an identical ordinance is determined by the portion of the stream to which the ordinance applies.)

It should also be noted that the requirement for adopting identical ordinances with respect to a stream that is contiguous to a town, village, or city does not apply to the provision of this bill related to ordinances regarding local issues of concern only to the town, village, or city. See sub. (4) (a) 3., above.

AB514,116,3 (5) Strict conformity and consistency; prohibitions. (a) Ordinances authorized. A local governmental unit may enact and enforce ordinances as provided under this subsection.

Note: The current statute, in several instances, authorizes a local governmental unit "to enact and enforce" ordinances. This phrase is not used consistently, and a number of other authorizations in the current statute refer only to "enacting" ordinances. Ordinarily, authority to enforce an ordinance would be implied by the authority to enact an ordinance. However, the jurisdiction of many local governmental units ends at the water's edge, and the authority to enact ordinances under s. 30.77 is extraterritorial is some cases. This bill retains "enforce" with respect to ordinances in this general grant of authority to enact ordinances. The authority to enforce ordinances is intended to apply to any waters of the state for which the local governmental unit is authorized to enact ordinances.

AB514,116,6 (b) Strict conformity required. Ordinances that relate to the subject matter encompassed by ss. 30.61, 30.62, 30.65, 30.67, 30.675, 30.68 (3m) (a) and (b) and (14), 30.681 to 30.687, and 30.71 shall be in strict conformity with these statutes.

Note: The current statutes provide that an ordinance may either be in strict conformity with or "not contrary to or inconsistent with" state law. The current statutes further provide that an ordinance which is "not contrary to or inconsistent with" state law must relate to "the equipment, use, or operation of boats or to any activity regulated by ss. 30.60 to 30.77". The current statute does not provide sufficient guidance to determine which state laws require strict conformity, and which ones require consistency in the corresponding ordinances. Therefore, this bill simply lists the statutes that require strict conformity in ordinances on the same subject. Any statute that meets the definition of a "state law" in this bill, and is not on this list, requires consistency in a corresponding ordinance, but may also be in strict conformity with the state law.

AB514,116,10 (c) Ordinances consistent with state law. Except for a state law that requires strict conformity under par. (b), every ordinance enacted by a local governmental unit under this section shall be at least consistent with state law if all of the following apply:

AB514,116,12 1. The ordinance is in the interest of public health, safety, or welfare, including the public's interest in preserving the state's natural resources.

AB514,116,14 2. The ordinance relates either to the equipment, use, or operation of boats or to any activity subject to a state law.

Note: Current s. 30.77 authorizes certain ordinances that are "not contrary to or inconsistent with" state law. "Consistent with" is substituted for that phrase in this bill. There does not appear to be any substantive difference between these phrases. "Consistent with" is used in the interest of clarity, without intending any change in the standard for ordinances.

AB514,117,7 (d) Standards for consistency. An ordinance is consistent with state law even if it varies from the specific provisions of state law if the ordinance achieves the same general objective as state law, allows free use of the waters of this state within the framework established by state law, and is a reasonable restriction on public rights in waters of this state. An ordinance that meets the standards for consistency in this paragraph is not inconsistent with state law solely because the ordinance establishes standards that are more restrictive than the state law.

Note: This provision creates standards regarding what is meant by "consistency" between ordinances and state law. The effect of this statutory standard is to create a framework for the DNR to make comments on the issue of consistency in its advisory review under sub. (10) in this bill, and to guide the decision of the hearing examiner under the objection procedures in sub. (11) of this bill.

The special committee recognizes that it is difficult to draft statutory standards regarding consistency that draw a clear line between ordinances that are consistent and ordinances that are not consistent with state law. The new statutory standards are intended to aid in the discussion and adjudication of these issues.

AB514,117,10 (e) Considerations in enacting ordinances. In enacting an ordinance for an individual body of water, a local governmental unit may take into account factors that include the following:

AB514,117,12 1. The type, size, shape, and depth of the body of water and any features of special environmental significance that the body of water has.

AB514,117,14 2. The amount, type, and speed of boating traffic on the body of water and boating safety and congestion.

AB514,117,17 3. The degree to which boating traffic on the body of water affects other recreational uses and the public's health, safety, and welfare, including the public's interest in preserving the state's natural resources.

AB514,117,19 (f) Specific ordinances authorized. Ordinances that require strict conformity under par. (b) include those that relate to any of the following:

AB514,118,1 1. Restrictions on speed.

AB514,118,3 2. Restrictions on certain types of boating activities on all, or on specified parts, of the lake or stream.

AB514,118,5 3. Restrictions on certain types of boating activities during specified hours of the day or specified days of the week.

AB514,118,8 4. The operation, equipment, use, and inspection of boats carrying passengers for hire that operate from a base within the jurisdiction of the local governmental unit, including the regulation of reasonable fees for the inspection of such boats.

AB514,118,10 5. Reasonable fees for using a public boat launching facility that the local governmental unit owns or operates.

AB514,118,12 6. Reasonable fees for the local governmental unit's costs for operating or maintaining a water safety patrol unit, as defined in s. 30.79 (1) (b) 2.

AB514,118,14 7. Reasonable fees for the local governmental unit's costs of providing other recreational boating services.

Note: The provision regarding fees for "other recreational boating services" retains current law. The special committee discussed the possibility of repealing or modifying this provision, but decided against making changes. The special committee acknowledges that although the current statute authorizes "reasonable" fees, a fee related to boating that might be reasonable for purposes of the police power may nevertheless exceed the bounds of the public trust in navigable waters under art. IX, s. 1, Wis. const. However, the special committee concluded that local governments should have the opportunity to impose reasonable fees that do not violate the public trust, and that the statute should continue to allow this.

AB514,118,16 (g) Prohibitions. 1. An ordinance may not require numbering, registration, or licensing of boats.

AB514,118,18 2. An ordinance may not charge a fee for inspection of boats, except as provided in par. (f) 4.

AB514,119,2 (h) Cities, villages, and towns; issues of local concern. A city, village, or town may enact ordinances under sub. (4) (a) 3. that relate only to establishing slow-no-wake zones and prohibiting boats from designated areas and that apply only within the following areas:

AB514,119,3 1. A mooring area designated under s. 30.773 by the city, village, or town.

AB514,119,5 2. A bridge, dam, channel, canal, or other similar hazard to navigation that is within the corporate limits of the city, village, or town.

AB514,119,8 3. Any construction project that requires a permit under subch. II or ch. 31 and either is undertaken by the city, village, or town or is within the corporate limits of the city, village, or town.

AB514,119,10 4. A marina that is either owned by the city, village, or town or is within the corporate limits of the city, village, or town.

AB514,119,12 5. An area that is within 200 feet from any riparian property or lake bed that is owned by the city, village, or town.

AB514,119,13 6. An area within a breakwater that is adjacent to the city, village, or town.

AB514,119,14 7. A harbor that is within the corporate limits of the city, village, or town.

AB514,119,19 (6) Rescinding authority to enact ordinances. (a) Multiple cities, villages, and towns. If a city, village, or town enacts an ordinance for an inland lake under sub. (4) (c) and the city, village, or town amends or repeals the ordinance, that ordinance is void for each city, village, or town with shoreline on the inland lake unless the requirements of sub. (4) (c) 1. and 2. continue to apply.

AB514,120,2 (b) Delegated jurisdiction. If a public inland lake protection and rehabilitation district or town sanitary district is authorized to enact ordinances for an inland lake under sub. (4) (d) and a city, village, or town rescinds the resolution that grants that authority, the public inland lake protection and rehabilitation district or town sanitary district may not enact ordinances for that inland lake and any ordinance enacted by the public inland lake protection and rehabilitation district or town sanitary district for that inland lake is void, unless the requirements of sub. (4) (d) 1. and 2. continue to apply.

AB514,120,6 (7) Priority of ordinances. (a) Counties. 1. An ordinance enacted by a county for a stream under sub. (4) (b) 1. or (e) 2. supersedes any provision of an ordinance enacted by a city, village, or town for a stream under sub. (4) (a) 2. or (e) 1. that is inconsistent with the county ordinance.

AB514,120,9 2. An ordinance enacted by a county for a marina under sub. (4) (b) 4. supersedes any provision of an ordinance enacted by another local governmental unit that is inconsistent with the county ordinance.

AB514,120,14 (b) Town sanitary districts and lake districts. An ordinance enacted by a public inland lake protection and rehabilitation district or a town sanitary district for an inland lake under sub. (4) (d) supersedes any provision of an ordinance enacted by a city, village, or town under sub. (4) (a) 1. or (c) that is inconsistent with the public inland lake protection and rehabilitation district or town sanitary district ordinance.

AB514,120,18 (c) Cities, villages, or towns; ordinances of local concern. An ordinance enacted by a city, village, or town for any waters of this state under sub. (4) (a) 3. supersedes any provision of an ordinance enacted under sub. (4) (b) 1. to 3. and (c) to (e) that is inconsistent with the city, village, or town ordinance under sub. (4) (a) 3.

AB514,120,24 (8) Posting ordinances. All ordinances enacted under this section applicable to a lake or stream shall be prominently posted by the local governmental unit that enacted them at each point of public access to the lake or stream within the local governmental unit. For ordinances enacted under sub. (4) (c), the ordinances shall be posted by each local governmental unit at any point of public access to the lake or stream within the boundaries of that local governmental unit.

AB514,121,2 (9) Hearings. (a) Ordinances. A local governmental unit shall hold a public hearing under this subsection before enacting, amending, or repealing an ordinance.

AB514,121,4 (b) Resolutions. A local governmental unit shall hold a public hearing under this subsection before rescinding a resolution that is adopted under sub. (4) (d).

AB514,121,9 (c) Procedures. 1. A public hearing under this subsection shall be held at least 30 days before an ordinance is enacted, amended, or repealed or a resolution is rescinded. If the action on an ordinance or resolution is proposed by more than one local governmental unit, the local governmental units may publish the notice and conduct the public hearing jointly.

AB514,121,13 2. At least 30 days before the public hearing, a local governmental unit shall publish a class 1 notice, under ch. 985, of the hearing under this subsection in one or more newspapers likely to give notice of the hearing in all cities, villages, towns, and counties that have shoreline of the lake or stream within their boundaries.

AB514,121,19 3. A local governmental unit that publishes a notice of a public hearing under subd. 1. shall send a copy of the notice, at least 30 days before the hearing, to the department, to each city, village, town, and county that has shoreline of the lake or stream within its boundaries and, if the proposal relates to an inland lake, to each lake association for the lake and each public inland lake protection and rehabilitation district for the lake.

Note: This provision expands and harmonizes the current requirements for a public hearing. This bill requires a public hearing each time an ordinance is proposed to be enacted, amended, or repealed, or a resolution rescinded, rather than the more limited requirements in the current statute. A public hearing must be held under this bill for all ordinances, rather than only those affecting inland lakes, as under the current statute. This bill applies the public hearing requirement to the amendment or repeal of an ordinance, rather than to only the enactment of an ordinance, as under the current statute. This bill requires all local governmental units to give notice of the public hearing, rather than only the one with the most shoreline, as under the current statute.

AB514,122,3 (10) Review by department. (a) Review required. 1. The department shall review each ordinance or amendment to an ordinance proposed under this section to determine if the ordinance complies with this section.

Note: This expands the scope of DNR review so that it applies to all ordinances enacted or amended under s. 30.77. The current statute applies DNR review only to ordinances regarding the equipment, use or operation of boats and only to inland lakes. This expands DNR review to apply to streams and outlying waters as well, and to any other ordinances regarding boating.

AB514,122,4 2. This paragraph does not apply to the repeal of an ordinance.

AB514,122,7 (b) Copy of ordinance to department. The local governmental unit shall submit a proposed ordinance to the department at least 60 days prior to final action on the ordinance.

AB514,122,12 (c) Report by department. The department shall prepare a report of its review. The report shall include findings regarding compliance of the ordinance with this section. If the department determines that the ordinance does not comply with this section, the report shall contain suggestions for changes that would bring the ordinance into compliance with this section.

AB514,122,14 (d) Deadline for review. The department shall complete its review within 20 days after receiving a copy of a proposed ordinance under par. (b).

AB514,122,16 (e) Distribution of report. The department shall send a copy of any report prepared under par. (c) to each local governmental unit affected by the ordinance.

AB514,123,2 (f) Modifications. If a local governmental unit modifies an ordinance following receipt of a department report under par. (c), whether or not the modification is in response to the department report, the local governmental unit shall submit the modified, proposed ordinance in final form to the department prior to enactment. The department is not required to review the modified ordinance under this subsection if the modifications relate to the subject matter of the ordinance submitted to the department under par. (b).

Note: This provision is not expressly stated in the current statute. However, it is implied by the statement in current s. 30.77 (3) (d) that local regulations must be submitted to the DNR at least 60 days prior to "final action" by the local governmental unit.

AB514,123,6 (g) Validity of ordinance. 1. An ordinance is not valid unless the local governmental unit complies with all procedural requirements imposed on local governmental units by this section and the contents of the ordinance comply with this section.

Note: This provides an express statement of the requirement for a local governmental unit to comply with procedural and substantive requirements of s. 30.77. This requirement can be reasonably implied from the language in the current statute. Ordinances must also conform to the constitutional public trust in navigable waters.

AB514,123,8 2. A department report under this subsection is advisory only and does not affect the validity of an ordinance.

Note: This provision is new. Although not expressed in the current statute, this appears to be the legal effect of DNR review. The phrase "advisory review" is used in current s. 30.77 (3) (d).

AB514,123,12 (h) Filing copies. A local governmental unit that enacts, amends, or repeals an ordinance under this section shall file a signed copy of the ordinance, amendment, or repeal with the department. The department shall retain a copy of each ordinance, amendment, or repeal submitted under this paragraph.

AB514,123,15 (11) Objection procedure. (a) Any of the following may file with the department an objection to an ordinance enacted under this section, on the grounds that any portion of the ordinance does not comply with this section:

AB514,123,16 1. A local governmental unit.

AB514,123,17 2. A qualified lake association, as defined in s. 281.68 (1) (b).

AB514,123,18 3. A nonprofit conservation organization, as defined in s. 23.0955 (1).

AB514,124,2 4. A local governmental unit, as defined in s. 66.0131 (1) (a), that is established for the purpose of lake management.