LRBs0401/2
ZDW:skw
2021 - 2022 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 849
February 18, 2022 - Offered by Representative Wittke.
AB849-ASA1,1,4
1An Act to renumber 30.122;
to amend 30.122 (title); and
to create 30.01 (1h),
230.122 (2), 30.122 (3), 30.2039 and 885.335 of the statutes;
relating to: use of
3fill in commercial waterways and establishing shorelines of Great Lakes
4waters.
Analysis by the Legislative Reference Bureau
This bill provides for the lawful public or private use of land that has been above
the ordinary high water mark of a commercial waterway or a Great Lakes water
since December 9, 1977. Under current law, all permanent alterations, deposits, or
structures, other than boathouses, that affect navigable waters are presumed in
conformity with the law if they were constructed before December 9, 1977, and did
not require a permit at the time of construction.
Historic fill in commercial waterways
The bill applies, in part, to fill placed prior to 1977 that created land above the
ordinary high water mark of a commercial waterway, which is a specified list of
rivers. If the fill is unauthorized fill for which the Department of Natural Resources
has not initiated an enforcement action or is within an authorized bulkhead line and
not specifically restricted by a submerged land lease, the owner of the fill may use
the fill for any purpose.
Establishing the shorelines of Great Lakes waters
The bill applies, in part, to property that 1) includes land that may have been
part of the submerged bed of a Great Lakes water at the time of statehood; 2) includes
portions of land that are upland, which is defined to mean land that has been above
the ordinary high water mark since December 9, 1977; 3) is within a municipality;
and 4) is not subject to a lake bed grant or a submerged land lease and is not landward
of the statutorily established shoreline in the city of Milwaukee.
The record title holder of applicable land may submit a proposed shoreline to
to the municipality in which the land is located. The municipality must approve the
proposed shoreline if the municipality determines the proposed shoreline is in the
public interest and the proposed use will promote the interests of the public and if
the proposed use will provide public access or use. If a municipality approves a
proposed shoreline, the municipality must submit the approval to DNR for review.
Following a public notice and comment period, DNR must adopt the shoreline
approved by the municipality unless DNR determines that a portion of the area
landward of the shoreline is not upland or there is not substantial evidence that the
shoreline as proposed is in the public interest. A determination by DNR establishes
the shoreline for purposes of determining the boundary of title between land held in
trust by the state and land held in fee title ownership.
The bill also prohibits the commencement of any action affecting the possession
or title of any real estate based on an assertion that the property includes portions
of land that may have at one time been submerged beneath a Great Lakes water or
a commercial waterway, if the portions of land are upland and not subject to a lake
bed grant or a submerged land lease or otherwise limited by a prior approval issued
by the state or a local government.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB849-ASA1,1
1Section
1. 30.01 (1h) of the statutes is created to read:
AB849-ASA1,2,32
30.01
(1h) “Commercial waterway” includes the portions of all of the following
3rivers that are within the Great Lakes basin and within incorporated areas:
AB849-ASA1,2,44
(a) Ahnapee River.
AB849-ASA1,2,55
(b) East River in Brown County.
AB849-ASA1,2,76
(c) Fox River, not including Lake Winnebago, Lake Butte des Morts, Lake
7Winneconne, or Lake Poygan.
AB849-ASA1,2,88
(d) Kewaunee River.
AB849-ASA1,3,1
1(e) Kinnickinnic River, Menomonee River, and Milwaukee River.
AB849-ASA1,3,22
(f) Manitowoc River.
AB849-ASA1,3,33
(g) Menominee River.
AB849-ASA1,3,44
(h) Root River.
AB849-ASA1,3,55
(i) Sheboygan River.
AB849-ASA1,3,66
(j) St. Louis River.
AB849-ASA1,3,77
(k) West Twin River and East Twin River.
AB849-ASA1,2
8Section
2. 30.122 (title) of the statutes is amended to read:
AB849-ASA1,3,9
930.122 (title)
Unauthorized structures and fill.
AB849-ASA1,3
10Section
3. 30.122 of the statutes is renumbered 30.122 (1).
AB849-ASA1,4
11Section
4. 30.122 (2) of the statutes is created to read:
AB849-ASA1,3,1612
30.122
(2) A fill or deposit placed in a commercial waterway before the date
13provided in sub. (1) that created land at an elevation above the current ordinary high
14water mark and that has remained above the current ordinary high water mark since
15the date provided in sub. (1) may be used by the owner of the fill or deposit for any
16public or private purpose without restrictions imposed if any of the following apply:
AB849-ASA1,3,1917
(a) The fill is unauthorized and the department has not initiated an
18enforcement action relating to the fill prior to effective date of this paragraph ....
19[LRB inserts date].
AB849-ASA1,3,2220
(b) The fill is within an authorized bulkhead line established as provided under
21s. 30.11 and use of the filled area is not specifically restricted by the terms included
22in a submerged land lease under s. 24.39 (4).
AB849-ASA1,5
23Section
5. 30.122 (3) of the statutes is created to read:
AB849-ASA1,3,2524
30.122
(3) Nothing in this section abridges the riparian rights of riparian
25owners.
AB849-ASA1,6
1Section
6. 30.2039 of the statutes is created to read:
AB849-ASA1,4,3
230.2039 Great Lakes shorelines established. (1) Definitions. In this
3section:
AB849-ASA1,4,54
(a) “Great Lakes water” means Lake Superior, Lake Michigan, Green Bay, or
5Sturgeon Bay.
AB849-ASA1,4,66
(b) “Municipality” means a city or village.
AB849-ASA1,4,87
(c) “Record title holder” means a person with a claim of ownership of property
8based on a recorded conveyance of an ownership interest in the property.
AB849-ASA1,4,109
(d) “Shoreline” means the boundary between upland and property waterward
10of upland areas.
AB849-ASA1,4,1311
(e) “Upland” means property that has been at an elevation above the current
12ordinary high water mark since the date provided in s. 30.122 (1) other than for
13temporary maintenance activities or because of accretion or reliction.
AB849-ASA1,4,15
14(2) Scope. This section applies to properties or portions of properties to which
15all of the following apply:
AB849-ASA1,4,1716
(a) The property includes portions of land that may have been part of the
17submerged bed of a Great Lakes water at the time of statehood.
AB849-ASA1,4,1818
(b) The property includes portions of land that are upland.
AB849-ASA1,4,1919
(c) The property is within a municipality.
AB849-ASA1,4,2120
(d) The property is not subject to a lake bed grant or a submerged land lease
21and is not landward of the shoreline established under s. 30.2038.
AB849-ASA1,4,25
22(3) Application. (a) A record title holder for property that meets the
23requirements under sub. (2) (a) to (d) may apply to the municipality in which the
24property is located for a determination of the location of the shoreline in accordance
25with this section.
AB849-ASA1,5,1
1(b) The application shall include all of the following information:
AB849-ASA1,5,32
1. The legal description of the property and a survey map showing the proposed
3shoreline.
AB849-ASA1,5,64
2. Photographs, survey data, publicly available global positioning system
5mapping, geographic information system mapping, or other documentation that
6provide evidence that the area landward of the proposed shoreline is upland.
AB849-ASA1,5,11
7(4) Municipal approval. (a) Except as provided in sub. (5), a municipality that
8receives an application under sub. (3) shall provide public notice that the application
9has been received. No earlier than 30 days following the public notice, the
10municipality shall determine whether the shoreline proposed under sub. (3) (b) 1. is
11in the public interest as provided in par. (c) 2.
AB849-ASA1,5,1512
(b) A municipality may by ordinance adopt a proposed shoreline for multiple
13properties within the municipality that abut a Great Lakes water if the municipality
14determines that the location of the shoreline is in the public interest as provided in
15par. (c) 2.
AB849-ASA1,5,1716
(c) In making a determination under this subsection, the municipality shall
17approve the proposed shoreline if all of the following apply:
AB849-ASA1,5,1818
1. The property meets the requirements under sub. (2) (a) to (d).
AB849-ASA1,5,2419
2. The municipality determines approval of the shoreline is in the public
20interest and the proposed use will promote the interests of the public, which may
21include public rights in navigable waters, economic development or redevelopment,
22the elimination of blight, remediation of brownfields, and settling uncertainty in
23title, and shall include public access or use of the property or project area, unless the
24existing use of the property is residential.
AB849-ASA1,6,2
1(d) A municipality may by ordinance adopt criteria for processing applications
2under this subsection.
AB849-ASA1,6,8
3(5) Exception. A parcel that has been separated from the submerged bed of a
4Great Lakes water by one or more other parcels since the date provided in s. 30.122
5(1) is deemed to be not part of the lakebed of a Great Lakes water and shall be affected
6by this section in the same manner as property for which a determination is made
7that the property is held in fee title ownership and is not held in trust by the state
8for the public under sub. (9).
AB849-ASA1,6,11
9(6) Submittal to the department. Upon making a determination to approve
10a shoreline under sub. (4), the municipality shall provide the approval to the
11department for review.
AB849-ASA1,6,18
12(7) Notice. (a) No later than 30 days after receiving a request for review under
13sub. (6), the department shall provide public notice by publishing a class 2 notice
14under ch. 985 and by posting notice on the department's Internet site. The notice
15shall provide an opportunity for members of the public to provide comments and
16request a public hearing. If a public hearing is requested, notice of the public hearing
17shall be provided by publishing a class 2 notice under ch. 985 and by posting notice
18on the department's Internet site.
AB849-ASA1,6,2119
(b) No later than 60 days following public notice under par. (a), or 60 days
20following a public hearing requested under par. (a), whichever is later, the
21department shall make a determination under sub. (8) (a).
AB849-ASA1,6,25
22(8) Determinations by the department. (a) For purposes of this section, the
23department shall adopt the shoreline approved by a municipality under sub. (4) and
24determine the shoreline is consistent with the public interest as provided in sub. (4)
25(c) 2. unless the department determines any of the following:
AB849-ASA1,7,5
11. A portion of the area landward of the shoreline approved by the municipality
2under sub. (4) is not upland. If a determination under this paragraph is made, the
3department shall modify the proposed shoreline so that any portion that is not
4upland remains waterward of the shoreline and shall approve the modified
5shoreline.
AB849-ASA1,7,76
2. The determination of the municipality under sub. (4) that the proposed
7shoreline is in the public interest is not supported by substantial evidence.
AB849-ASA1,7,98
(b) If the department does not make a determination under this subsection in
9the period required under sub. (7) (b), the proposed shoreline is deemed approved.
AB849-ASA1,7,16
10(9) Effect of determination. (a) A determination under this section
11establishes the shoreline for purposes of determining the boundary of title between
12land held in trust by the state and land held in fee title ownership. For land held in
13fee title ownership as determined under this section, this determination operates in
14the same manner as if a person were granted quiet title to the property by a court
15under s. 841.10. A determination under this section shall be recorded with the
16register of deeds and posted on the department's Internet site.
AB849-ASA1,7,1817
(b) A determination under this section does not alter the rights of any record
18title holder other than to establish the shoreline under par. (a).
AB849-ASA1,7,2019
(c) This section does does not alter the right of property owners to seek a quiet
20title action under common law.
AB849-ASA1,7
21Section
7. 885.335 of the statutes is created to read: