281.22(2m)(a)1.
1. The applicant requests in writing that the determination be issued within a time period that is shorter than the time limit promulgated under
par. (b) for the determination.
281.22(2m)(a)2.
2. The department verifies that it will be able to comply with the request.
281.22(2m)(b)
(b) If the department promulgates a rule under
par. (a), the rule shall contain for a time limit for making determinations under
sub. (1).
281.22(3)
(3) Exemptions from fees. Subsections (1),
(2) and
(2m) do not apply to any federal agency or state agency.
281.22(4)
(4) Time limits. The department shall promulgate a rule to establish time limits for the steps involved in processing, approving, and denying applications for determinations that the department makes as to whether projects comply with the standards of water quality established by rules promulgated under
s. 281.15 that are applicable to wetlands other than nonfederal wetlands, as defined in
s. 281.36 (1) (c). Upon referral of any proposed rule under this subsection to the presiding officer of each house of the legislature under
s. 227.19 (2), the presiding officers shall refer the proposed rule to a senate committee and an assembly committee concerned with the environment.
281.22 History
History: 1995 a. 27;
1995 a. 227 s.
398; Stats. 1995 s. 281.22;
1997 a. 27;
2001 a. 6.
281.22 Cross-reference
Cross-reference: See also ch.
NR 300, Wis. adm. code.
WATER QUALITY AND QUANTITY;
GENERAL REGULATIONS
281.31
281.31
Navigable waters protection law. 281.31(1)
(1) To aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans and authorize municipal shoreland zoning regulations for the efficient use, conservation, development and protection of this state's water resources. The regulations shall relate to lands under, abutting or lying close to navigable waters. The purposes of the regulations shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses and reserve shore cover and natural beauty.
281.31(2)
(2) In this section, unless the context clearly requires otherwise:
281.31(2)(c)
(c) "Municipality" or "municipal" means a county, village or city.
281.31(2)(d)
(d) "Navigable water" or "navigable waters" means Lake Superior, Lake Michigan, all natural inland lakes within this state and all streams, ponds, sloughs, flowages and other waters within the territorial limits of this state, including the Wisconsin portion of boundary waters, which are navigable under the laws of this state.
281.31(2)(e)
(e) "Regulation" means ordinances enacted under
ss. 59.692,
61.351,
62.23 (7) and
62.231 and refers to subdivision and zoning regulations which include control of uses of lands under, abutting or lying close to navigable waters for the purposes specified in
sub. (1), pursuant to any of the zoning and subdivision control powers delegated by law to cities, villages and counties.
281.31(2)(g)
(g) "Water resources," where the term is used in reference to studies, plans, collection of publications on water and inquiries about water, means all water whether in the air, on the earth's surface or under the earth's surface. "Water resources" as used in connection with the regulatory functions under this section means navigable waters.
281.31(2m)
(2m) Notwithstanding any other provision of law or administrative rule, a shoreland zoning ordinance required under
s. 59.692, a construction site erosion control and storm water management zoning ordinance authorized under
s. 59.693,
60.627,
61.354 or
62.234 or a wetland zoning ordinance required under
s. 61.351 or
62.231 does not apply to lands adjacent to farm drainage ditches if:
281.31(2m)(a)
(a) Such lands are not adjacent to a natural navigable stream or river;
281.31(2m)(b)
(b) Those parts of the drainage ditches adjacent to these lands were nonnavigable streams before ditching; and
281.31(2m)(c)
(c) Such lands are maintained in nonstructural agricultural use.
281.31(3)(a)(a) The department shall coordinate the activities of the several state agencies in managing and regulating water resources.
281.31(3)(b)
(b) The department shall make studies, establish policies and make plans for the efficient use, conservation, development and protection of the state's water resources and:
281.31(3)(b)1.
1. On the basis of these studies and plans make recommendations to existing state agencies relative to their water resource activities.
281.31(3)(b)2.
2. Locate and maintain information relating to the state's water resources. The department shall collect pertinent data available from state, regional and federal agencies, the University of Wisconsin, local units of government and other sources.
281.31(3)(b)3.
3. Serve as a clearinghouse for information relating to water resources including referring citizens and local units of government to the appropriate sources for advice and assistance in connection with particular water use problems.
281.31(5)(a)(a) The department shall prepare a comprehensive plan as a guide for the application of municipal ordinances regulating navigable waters and their shorelands as defined in this section for the preventive control of pollution. The plan shall be based on a use classification of navigable waters and their shorelands throughout the state or within counties and shall be governed by the following general standards:
281.31(5)(a)2.
2. Uses not inherently a source of pollution within an area shall be preferred over uses that are or may be a pollution source.
281.31(5)(a)3.
3. Areas in which the existing or potential economic value of public, recreational or similar uses exceeds the existing or potential economic value of any other use shall be classified primarily on the basis of the higher economic use value.
281.31(5)(a)4.
4. Use locations within an area tending to minimize the possibility of pollution shall be preferred over use locations tending to increase that possibility.
281.31(5)(a)5.
5. Use dispersions within an area shall be preferred over concentrations of uses or their undue proximity to each other.
281.31(5)(b)
(b) The department shall apply to the plan the standards and criteria set forth in
sub. (6).
281.31(6)
(6) Within the purposes of
sub. (1) the department shall prepare and provide to municipalities general recommended standards and criteria for navigable water protection studies and planning and for navigable water protection regulations and their administration. Such standards and criteria shall give particular attention to safe and healthful conditions for the enjoyment of aquatic recreation; the demands of water traffic, boating and water sports; the capability of the water resource; requirements necessary to assure proper operation of septic tank disposal fields near navigable waters; building setbacks from the water; preservation of shore growth and cover; conservancy uses for low lying lands; shoreland layout for residential and commercial development; suggested regulations and suggestions for the effective administration and enforcement of such regulations.
281.31(7)
(7) The department, the municipalities and all state agencies shall mutually cooperate to accomplish the objective of this section. To that end, the department shall consult with the governing bodies of municipalities to secure voluntary uniformity of regulations, so far as practicable, and shall extend all possible assistance therefor.
281.31(8)
(8) This section and
ss. 59.692,
61.351 and
62.231 shall be construed together to accomplish the purposes and objective of this section.
281.31(10)
(10) A person aggrieved by an order or decision of the department under this section may cause its review under
ch. 227.
281.31 Cross-reference
Cross-reference: See also chs.
NR 115 and
117, Wis. adm. code.
281.31 Annotation
A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now 59.692 and 281.31] does not amount to an unconstitutional taking of property. Police powers and eminent domain are discussed. Just v. Marinette County,
56 Wis. 2d 7,
201 N.W.2d 761 (1972).
281.31 Annotation
The concept that an owner of real property can, in all cases, do as he or she pleases with his or her property is no longer in harmony with the realities of society. The "reasonable use" rule codified in the second Restatement of the Law of Torts is adopted. State v. Deetz,
66 Wis. 2d 1,
224 N.W.2d 407 (1974).
281.31 Annotation
A drainage board is subject to shoreland zoning ordinances, as is any other person. Navigable drainage ditches are within the jurisdiction of the department of natural resources under s. 144.26 (2) (d) [now s. 281.31 (2) (d)]. 63 Atty. Gen. 355.
281.31 Annotation
The necessity of zoning variance or amendments notice to the Wisconsin department of natural resources under the shoreland zoning and navigable waters protection acts. Whipple, 57 MLR 25.
281.31 Annotation
The public trust doctrine. 59 MLR 787.
281.31 Annotation
Water quality protection for inland lakes in Wisconsin; a comprehensive approach to water pollution. Kusler, 1970 WLR 35.
281.31 Annotation
Land as property; changing concepts. Large, 1973 WLR 1039.
281.31 Annotation
Wisconsin's Shoreland Management Program: An Assessment With Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.
281.33
281.33
Construction site erosion control and storm water management. 281.33(1)(1)
Objectives. To aid in the fulfillment of the state's role as trustee of its navigable waters, to promote public health, safety and general welfare and to protect natural resources, it is declared to be in the public interest to make studies, establish policies, make plans, authorize municipal construction site erosion control and storm water management zoning ordinances for the efficient use, conservation, development and protection of this state's groundwater, surface water, soil and related resources and establish a state storm water management plan for the efficient use, conservation, development and protection of this state's groundwater, surface water, soil and related resources while at the same time encouraging sound economic growth in this state. The purposes of the municipal ordinances and state plan shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; prevent and control soil erosion; prevent and control the adverse effects of storm water; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth.
281.33(2)
(2) State storm water management plan. The department, in consultation with the department of commerce, shall promulgate by rule a state storm water management plan. This state plan is applicable to activities contracted for or conducted by any agency, as defined under
s. 227.01 (1) but also including the office of district attorney, unless that agency enters into a memorandum of understanding with the department of natural resources in which that agency agrees to regulate activities related to storm water management. The department shall coordinate the activities of agencies, as defined under
s. 227.01 (1), in storm water management and make recommendations to these agencies concerning activities related to storm water management.
281.33(3)
(3) Standards related to storm water and certain construction activities. 281.33(3)(a)1.1. Except as restricted under
subd. 2., the department shall establish by rule minimum standards for activities related to construction site erosion control at sites where the construction activities do not include the construction of a building and to storm water management.
281.33(3)(a)2.
2. The department, in cooperation with the department of transportation, shall establish by rule minimum standards for activities related to construction site erosion control and storm water management if those activities concern street, highway, road or bridge construction, enlargement, relocation or reconstruction.
281.33(3)(a)3.
3. Minimum standards for storm water management established under this paragraph are applicable to the state plan under
sub. (2). The department shall encourage a city, village, town or county to comply with minimum standards established under this paragraph for any construction site erosion control and storm water management zoning ordinance enacted under
s. 59.693,
60.627,
61.354 or
62.234.
281.33(3)(a)4.
4. The department shall identify low-cost practices which would enable a person to comply with these minimum standards.
281.33(3)(b)
(b) The minimum standards for construction site erosion control at sites where the construction activities do not include the construction of a building shall provide for the regulation of any construction activity, at such a site, that:
281.33(3)(b)1.
1. Involves the grading, removal of protective ground cover or vegetation, excavation, land filling or other land disturbing activity which affects an area of 4,000 square feet or more.
281.33(3)(b)2.
2. Involves the excavation or filling or a combination of excavation and filling which affects 400 cubic yards or more of dirt, sand or other excavation or fill material.
281.33(3)(b)3.
3. Involves street, highway, road or bridge construction, enlargement, relocation or reconstruction.
281.33(3)(b)4.
4. Involves the laying, repairing, replacing or enlarging of an underground pipe or facility for a distance of 300 feet or more.
281.33(3)(b)5.
5. Requires a subdivision plat approval or a certified survey.
281.33(3)(c)
(c) The minimum standards for storm water management shall provide for the regulation of any construction activity which:
281.33(3)(c)1.
1. Is a residential development with a gross aggregate area of 5 acres or more.
281.33(3)(c)2.
2. Is a residential development with a gross aggregate area of 3 acres or more with at least 1.5 acres of impervious surfaces.
281.33(3)(c)3.
3. Is a development other than a residential development with a gross aggregate area of 3 acres or more.
281.33(3)(c)4.
4. Is likely to result in storm water runoff which exceeds the safe capacity of the existing drainage facilities or receiving body of water, which causes undue channel erosion, which increases water pollution by scouring or the transportation of particulate matter or which endangers downstream property.
281.33(3m)
(3m) Erosion control related to construction of public buildings and buildings that are places of employment. 281.33(3m)(a)(a) The department shall establish statewide standards for erosion control at building sites for the construction of public buildings, as defined in
s. 101.01 (12), and buildings that are places of employment, as defined in
s. 101.02 (11).
281.33(3m)(b)
(b) The department shall require the submission of plans for erosion control at construction sites described in
par. (a) to the department or to a county, city, village, or town to which the department has delegated authority under
par. (d) and shall require approval of those plans by the department or the county, city, village, or town.
281.33(3m)(c)
(c) The department shall require inspection of erosion control activities and structures at construction sites described in
par. (a) by the department or a county, city, village, or town to which the department has delegated authority under
par. (d).
281.33(3m)(d)
(d) The department may delegate authority under this section to a county, city, village or town.
281.33(3m)(e)
(e) Except as provided in
par. (f), the authority of a county, city, village, or town with respect to erosion control at sites described in
par. (a) is limited to that authority delegated under
par. (d) and any other authority provided in rules promulgated under this subsection.
281.33(3m)(f)
(f) Notwithstanding
pars. (a) and
(e), a county, city, village, or town that has in effect on January 1, 1994, an ordinance that establishes standards for erosion control at building sites for the construction of public buildings and buildings that are places of employment may continue to administer and enforce that ordinance if the standards in the ordinance are more stringent than the standards established under
par. (a).
281.33(3m)(g)
(g) The department, or a county, city, village, or town to which the department delegates the authority to act under this paragraph, may issue a special order directing the immediate cessation of work on a construction site described in
par. (a) until any required plan approval is obtained or until the site complies with standards established by rules promulgated under this subsection.
281.33(3m)(h)
(h) The department shall promulgate rules for the administration of this section.
281.33(4)
(4) Model ordinances; state plan; distribution. The department shall prepare a model zoning ordinance for construction site erosion control at sites where the construction activities do not include the construction of a building and for storm water management in the form of an administrative rule. The model ordinance is subject to
s. 227.19 and other provisions of
ch. 227 in the same manner as other administrative rules. Following the promulgation of the model ordinance as a rule, the department shall distribute a copy of the model ordinance to any city, village, town or county that submits a request. The department shall distribute a copy of the state plan to any agency which submits a request.
281.33(5)
(5) Cooperation. The department, the municipalities and all state agencies shall cooperate to accomplish the objective of this section. To that end, the department shall consult with the governing bodies of municipalities to secure voluntary uniformity of regulations, so far as practicable, shall prepare model ordinances under
sub. (4), shall extend assistance to municipalities under this section, shall prepare the plan under
sub. (2), shall encourage uniformity through the implementation of this plan and the utilization of memoranda of understanding which are substantially similar to the plan and shall extend assistance to agencies under this section.
281.33 Cross-reference
Cross-reference: See also chs.
NR 152 and
216, Wis. adm. code.
281.34
281.34
Groundwater withdrawals. 281.34(1)(a)
(a) "Groundwater protection area" means an area within 1,200 feet of any of the following:
281.34(1)(a)1.
1. An outstanding resource water identified under
s. 281.15 that is not a trout stream.
281.34(1)(a)2.
2. An exceptional resource water identified under
s. 281.15 that is not a trout stream.
281.34(1)(a)3.
3. A class I, class II, or class III trout stream, other than a class I, class II, or class III trout stream that is a farm drainage ditch with no prior stream history, as identified under
sub. (8) (a).
