Amendment ASA1-AB579

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 579

January 9, 2024 - Offered by Representative Wittke.

AB579-ASA1,1,3 An Act to renumber 30.122; to amend 30.122 (title); and to create 30.01 (1h), 30.122 (2), 30.122 (3), 30.2034, 30.2039 and 885.335 of the statutes; relating to: use of fill in commercial waterways and Great Lakes waters.

Analysis by the Legislative Reference Bureau

This bill provides several methods for establishing the lawful public or private use of fill placed on the bed of the Great Lakes and certain rivers and harbors.

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 fill is considered land held in private fee title ownership and is not subject to a navigational servitude.

Development of Great Lakes waterfront property

The bill provides that a city or village (municipality) may create a waterfront development plan with respect to parcels that may have been part of the submerged bed of a Great Lakes water at the time of statehood. The municipality must submit required information to DNR, including a map of the parcels and a plan for development of the parcels that details any public and private uses. Following a public notice and comment period, DNR must determine whether the plan is approved. DNR may not approve a plan unless it determines that 1) the plan contains the required elements, 2) proposed private uses are not inconsistent with existing lake bed grants or submerged land leases, 3) the amount and location of proposed public use areas are appropriate to protect public interests, or 4) the plan contains sufficient provisions to ensure that the public uses proposed in the plan will be implemented and perpetually maintained.

Amendments to existing approvals

The bill provides that a municipality may apply to DNR to amend the uses allowed within an area of a Great Lakes water that was filled pursuant to a fill authorization granted by the legislature or a submerged land lease. DNR must review the proposed uses based on several criteria that generally consider whether the proposed uses are consistent with the public interest. Following a public notice and comment period, DNR must approve the plan unless DNR determines that the specified criteria were not met.

Claims relating to possession or title

The bill prohibits any claim or counterclaim 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 1) the property is upland and the use of the land has not materially changed, 2) the property is held in fee title ownership as determined under a Great Lakes waterfront development plan, 3) the property is held in fee title ownership based on being separated from a Great Lakes water, or 4) use of the property has been approved by DNR as an amended use.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB579-ASA1,1 Section 1 . 30.01 (1h) of the statutes is created to read:

AB579-ASA1,2,3 30.01 (1h) “Commercial waterway” includes the portions of all of the following rivers that are within the Great Lakes basin and within incorporated areas:

AB579-ASA1,2,4 (a) Ahnapee River.

AB579-ASA1,2,5 (b) East River in Brown County.

AB579-ASA1,2,7 (c) Fox River, but excluding Lake Winnebago, Lake Butte des Morts, Lake Winneconne, and Lake Poygan.

AB579-ASA1,2,8 (d) Kewaunee River.

AB579-ASA1,2,9 (e) Kinnickinnic River.

AB579-ASA1,3,1 (f) Manitowoc River.

AB579-ASA1,3,2 (g) Menominee River.

AB579-ASA1,3,3 (h) Menomonee River.

AB579-ASA1,3,4 (i) Milwaukee River.

AB579-ASA1,3,5 (j) Root River.

AB579-ASA1,3,6 (k) Sheboygan River.

AB579-ASA1,3,7 (L) St. Louis River.

AB579-ASA1,3,8 (m) West Twin River.

AB579-ASA1,2 Section 2 . 30.122 (title) of the statutes is amended to read:

AB579-ASA1,3,10 30.122 (title) Unauthorized structures and fill.

AB579-ASA1,3 Section 3 . 30.122 of the statutes is renumbered 30.122 (1).

AB579-ASA1,4 Section 4 . 30.122 (2) of the statutes is created to read:

AB579-ASA1,3,17 30.122 (2) A fill or deposit placed in a commercial waterway before December 9, 1977, that created land at an elevation above the current ordinary high water mark and that has remained above the current ordinary high water mark since December 9, 1977, is considered land held in private fee title ownership and is not subject to a navigational servitude if any of the following apply:

AB579-ASA1,3,20 (a) The fill or deposit is unauthorized and the department has not initiated an enforcement action relating to the fill or deposit prior to the effective date of this paragraph .... [LRB inserts date].

AB579-ASA1,3,23 (b) The fill or deposit is within an authorized bulkhead line established as provided under s. 30.11 and use of the filled area is not specifically restricted by the terms included in a submerged land lease under s. 24.39 (4).

AB579-ASA1,5 Section 5 . 30.122 (3) of the statutes is created to read:

AB579-ASA1,4,2 30.122 (3) Nothing in this section abridges the riparian rights of riparian owners.

AB579-ASA1,6 Section 6. 30.2034 of the statutes is created to read:

AB579-ASA1,4,5 30.2034 Amendments to existing approvals. (1) Definitions. In this section:

AB579-ASA1,4,8 (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.

AB579-ASA1,4,10 (b) “Filled area” means an area in a Great Lakes water filled before August 8, 1989, pursuant to a fill authorization.

AB579-ASA1,4,11 (c) “Grantee” means a municipality that has been granted a fill authorization.

AB579-ASA1,4,13 (d) “Great Lakes water” means Lake Superior, Lake Michigan, Green Bay, or Sturgeon Bay.

AB579-ASA1,4,14 (e) Notwithstanding s. 30.01 (4), “municipality” means a city or village.

AB579-ASA1,4,16 (2) Applications by grantees. (a) A grantee may apply to the department to amend the uses allowed within filled areas of a fill authorization.

AB579-ASA1,4,17 (b) An application under par. (a) shall include all of the following information:

AB579-ASA1,4,19 1. A legal description of the fill authorization and the filled area proposed to be used.

AB579-ASA1,4,21 2. A description of the proposed amendment to the existing fill authorization, including a detailed description of the proposed uses consistent with sub. (3).

AB579-ASA1,4,23 3. A determination from the governing body of the municipality approving the proposed amendment and requesting authorization from the department.

AB579-ASA1,5,3 (3) Standards for approval. The department shall evaluate applications submitted under sub. (2) based on whether the uses proposed in the application meet the following criteria:

AB579-ASA1,5,6 (a) The filled area proposed to be used is used for parking lots, public or private buildings, roads, or railroads on the effective date of this paragraph .... [LRB inserts date].

AB579-ASA1,5,8 (b) The filled area proposed to be used does not include any area currently used for public park purposes.

AB579-ASA1,5,12 (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, subject to compliance with the other criteria under this subsection.

AB579-ASA1,5,14 (d) The application is consistent with any waterfront development plan approved under s. 30.2039 (2) (d).

AB579-ASA1,5,17 (e) The application promotes appropriate public uses consistent with the public interest, which may include concessions, as defined in s. 30.2039 (1) (a), open to the public under long-term lease with the municipality.

AB579-ASA1,5,19 (f) The application includes appropriate mechanisms for department enforcement.

AB579-ASA1,5,22 (g) The application promotes other public objectives, which may include the elimination of blight, the remediation of brownfields, and other private economic development benefits.

AB579-ASA1,6,2 (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 website.

AB579-ASA1,6,8 (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.

AB579-ASA1,6,9 (c) Determinations made under par. (b) are subject to review under ch. 227.

AB579-ASA1,7 Section 7. 30.2039 of the statutes is created to read:

AB579-ASA1,6,11 30.2039 Great Lakes waterfront property. (1) Definitions. In this section:

AB579-ASA1,6,14 (a) “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.

AB579-ASA1,6,16 (b) “Great Lakes water” means Lake Superior, Lake Michigan, Green Bay, or Sturgeon Bay.

AB579-ASA1,6,17 (c) Notwithstanding s. 30.01 (4), “municipality” means a city or village.

AB579-ASA1,6,19 (d) “Public use” means public access and use, including access to and use of parkland, trails and roads, and public recreational facilities.

AB579-ASA1,6,21 (e) “Record title holder” means a person with a claim of ownership of property based on a recorded conveyance of an ownership interest in the property.

AB579-ASA1,6,25 (f) “Upland” means property that remained at an elevation 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 maintenance activities or because of accretion or reliction.

AB579-ASA1,7,3 (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 the submerged bed of a Great Lakes water at the time of statehood.

AB579-ASA1,7,5 (b) Elements of the plan. A municipality shall include all of the following information in a waterfront development plan under this subsection:

AB579-ASA1,7,6 1. A map identifying parcels of land that are subject to the proposed plan area.

AB579-ASA1,7,8 2. An approximate delineation of the shoreland at statehood based on existing government survey maps.

AB579-ASA1,7,12 3. A delineation of upland areas. In determining whether portions of the proposed plan area are upland, the municipality may use photographs, survey data, publicly available global positioning system mapping, geographic information system mapping, or other documentation.

AB579-ASA1,7,14 4. A delineation of any area that is subject to a lake bed grant or a submerged land lease or a shoreline established under s. 30.2038.

AB579-ASA1,7,18 5. An overall plan for the development of the proposed 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.

AB579-ASA1,7,22 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.

AB579-ASA1,8,2 7. A plan for implementing and enforcing the development 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.

AB579-ASA1,8,4 (c) Plan review. 1. The municipality shall consult with any record title holders within the plan area proposed under par. (b) prior to approval by the municipality.

AB579-ASA1,8,6 2. Upon adoption of the waterfront development plan by the municipality, the municipality shall provide the plan to the department for review and approval.

AB579-ASA1,8,10 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 publishing a class 2 notice under ch. 985 and by posting notice on the department's website.

AB579-ASA1,8,15 4. No later than 90 days following the public hearing under subd. 3., the department shall make a determination under par. (d). 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.

AB579-ASA1,8,19 (d) Determinations by the department. The department 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 conditions, unless the department determines all of the following:

AB579-ASA1,8,20 1. The plan meets the requirements of par. (b).