SB 900 — Relating to: use of fill in commercial waterways and establishing shorelines of Great Lakes waters. (FE)

30.122 (2) of the statutes is created to read:

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, may be used by the owner of the fill or deposit for any public or private purpose without restrictions imposed if any of the following apply:

(a) The fill is unauthorized and the department has not initiated an enforcement action relating to the fill prior to effective date of this paragraph ....

[LRB inserts date].

(b) The fill 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.

SECTION(j) 5.St.

30.122Louis (3)River. of the statutes is created to read:

30.122S (3)ECTION Nothing5. in this section abridges the riparian rights of riparian owners.

SECTION30.122 6.(3) of the statutes is created to (k) West Twin River and East Twin River.

read:

S ECTION 2.

30.122 (title) of the statutes is amended 30.122(3) Nothing in this section abridges the ripar- to read:

ian rights of riparian owners.

30.122 (title) Unauthorized structures and fill.

S ECTION 6.

-S 2022ECTION Legislature3. - 4 - LRB-4719/2 ZDW:skw SENATE BILL 900 SECTION 6 30.2039 Great Lakes shorelines established.

(1)30.122 Dof EFINITIONS.the statutes is renumbered 30.2039 Great Lakes shorelines established.

(1) 30.122 (1).

D EFINITIONS.

(a)* “GreatSection Lakes991.11ISCONSIS water”TATUTE: means Lake Superior, Lake Michigan, Green Bay, or Sturgeon Bay.

(b)Effective “Municipality”date meansof aacts. city or village.

(c)“Every “Recordact titleand holder”every meansportion aof personan withact aenacted claimby ofthe ownershiplegislature ofover propertythe basedgovernor’s partial veto which does not expressly prescribe the time when it takes effect shall take effect on athe recordedday conveyanceafter its date of anpublication.” ownershipWisconsin interestAct in− the2 property.− 2021 Senate Bill 900 (a) “Great Lakes water” means Lake Superior, Lake 2.

(d)The “Shoreline”municipality meansdetermines theapproval boundaryof betweenthe uplandMichigan, andGreen propertyBay, waterwardor ofSturgeon uplandBay. areas.

(e)shoreline “Upland”is meansin propertythe thatpublic hasinterest beenand at an elevation above the currentproposed ordinaryuse high(b) water“Municipality” markmeans sincea Decembercity 9, 1977, other than for temporary maintenance activities or becausevillage. of accretion or reliction.

(2)will COPE.promote the interests of the public, which may (c) “Record title holder” means a person with a claim include public rights in navigable waters, economic of ownership of property based on a recorded con- development or redevelopment, the elimination of blight, veyance of an ownership interest in the property.

Thisremediation sectionof appliesbrownfields, toand propertiessettling oruncertainty portionsin of(d) properties“Shoreline” tomeans whichthe allboundary between upland title, and shall include public access or use of the followingproperty apply:and property waterward of upland areas.

(a)or Theproject propertyarea, includesunless portionsthe ofexisting landuse that may have been part of the submergedproperty bedis of(e) a“Upland” Greatmeans Lakesproperty waterthat athas thebeen timeat ofan statehood.ele- residential.

(b)vation Theabove propertythe includescurrent portionsordinary ofhigh landwater thatmark aresince upland.(d) A municipality may by ordinance adopt criteria the date provided in s.

(c)30.122 The(1) propertyother isthan withinfor atemporary municipality.for processing applications under this subsection.

(d)maintenance Theactivities property is not subject to a lake bed grant or abecause submerged land lease and is not landward of theaccretion shorelineor establishedrelic- under(5) s.E XCEPTION.

A parcel that has been separated from tion.

the submerged bed of a Great Lakes water by one or more (2) SCOPE.

This section applies to properties or por- other parcels since the date provided in s.

30.122 (1) is tions of properties to which all of the following apply:

deemed to be not part of the lakebed of a Great Lakes (a) The property includes portions of land that may water and shall be affected by this section in the same have been part of the submerged bed of a Great Lakes manner as property for which a determination is made water at the time of statehood.

that the property is held in fee title ownership and is not (b) The property includes portions of land that are held in trust by the state for the public under sub.

(9).

upland.

(6) S UBMITTAL TO THE DEPARTMENT.

Upon making a (c) The property is within a municipality.

determination to approve a shoreline under sub.

(4), the (d) The property is not subject to a lake bed grant or municipality shall provide the approval to the department a submerged land lease and is not landward of the shore- for review.

line established under s.

(3)(7) AN PPLICATION.OTICE.

(a) ANo recordlater titlethan holder30 fordays propertyafter thatreceiving meets(3) theA requirementsPPLICATION. under sub.

(2) (a) toA (d)record maytitle applyholder tofor theprop- municipalitya inrequest which the property is located for areview determinationunder ofsub. the location of the shoreline in accordance with this section.

(b)(6), Thethe applicationdepartment shall includeerty allthat ofmeets the followingrequirements information:under sub.

LRB-4719/2(2) -(a) 2022to Legislature(d) -provide 5public -notice ZDW:skwby SECTIONpublishing 6a SENATEclass BILL2 900notice 1.under may apply to the municipality in which the property is ch.

The985 legaland descriptionby ofposting notice on the propertydepartment’s andInter- located for a surveydetermination mapof showingthe location of the proposedshore- shoreline.net site.

The notice shall provide an opportunity for line in accordance with this section.

members of the public to provide comments and request (b) The application shall include all of the following a public hearing.

If a public hearing is requested, notice information:

of the public hearing shall be provided by publishing a 1.

The legal description of the property and a survey class 2 notice under ch.

985 and by posting notice on the map showing the proposed shoreline.

department’s Internet site.

Photographs, survey data, publicly available global(b) positioningNo systemlater mapping,than or60 otherdays documentationfollowing thatpublic providenotice evidenceglobal thatpositioning thesystem areamapping, landwardgeographic ofinforma- theunder proposedpar. shoreline is upland.

(4)(a), Mor UNICIPAL60 APPROVAL(a)days Exceptfollowing asa providedpublic inhearing sub.tion system mapping, or other documentation that pro- requested under par.

(5),(a), awhichever municipalityis later, the depart- vide evidence that receivesthe anarea applicationlandward of the proposed ment shall make a determination under sub.

(3)(8) shall(a). determine whether the shoreline proposed under sub.

(3)shoreline (b)is 1.upland.

is in the public interest as provided in par.

(c).

(b) A municipality may by ordinance adopt a proposed shoreline for multiple properties within the municipality that abut a Great Lakes water if the municipality determines that the location of the shoreline is in the public interest as provided in par.

(c).

(c) In making a determination under this subsection, the municipality shall approve the proposed shoreline if the property meets the requirements under sub.

(2) (a) to (d), the municipality determines approval of the shoreline is in the public interest, and the proposed use will promote the interests of the public, which may include public rights in navigable waters, public use, economic development or redevelopment, the elimination of blight, remediation of brownfields, and settling uncertainty in title.

In making a determination under this subsection, there is a presumption that existing residential uses require minimal or no public access or use.

(5) E XCEPTION.A parcel that has been separated from the submerged bed of a Great Lakes water by one or more other parcels since December 9, 1977, is deemed to be not part of the lakebed of a Great Lakes water and shall be affected by this section in the same manner as property for which a determination is made that the - 2022 Legislature - 6 - LRB-4719/2 ZDW:skw SENATE BILL 900 S ECTION 6 property is held in fee title ownership and is not held in trust by the state for the public under sub.

(9).

(6) S UBMITTAL TO THE DEPARTMENT.Upon making a determination to approve a shoreline under sub.

(4), the municipality shall provide the approval to the department for review.

(7) NOTICE.

(a) No later than 30 days after receiving a request for review under sub.

(6), the department shall provide public notice by publishing a class 2 notice under ch.

985 and by posting notice on the department's Internet site.

The notice shall provide an opportunity for members of the public to provide comments and request a public hearing.

If a public hearing is requested, notice of the public hearing shall be provided by publishing a class 2 notice under ch.

985 and by posting notice on the department's Internet site.

(b) No later than 60 days following public notice under par.

(a), or 60 days following a public hearing requested under par.

(a), whichever is later, the department shall make a determination under sub.

(8).

The(a) departmentFor shall(4) adoptM theUNICIPAL shorelineAPPROVAL. approved by a municipality under sub.

(4)(a) andExcept determineas theprovided shorelinein ispurposes consistentof withthis thesection, public interest unless the department determinesshall anyadopt of the following:sub.

(a)(5), Aa portionmunicipality ofthat thereceives areaan landwardapplication ofunder the shoreline approved by thea municipality under sub.

(4) isand notsub. upland.

If(3) ashall determinationprovide underpublic thisnotice paragraphthat is made, the departmentapplication shalldetermine modify the proposed shoreline so that any portion that is notconsistent uplandwith remains waterward of the shorelinepublic andhas shallbeen approvereceived. the modified shoreline.

LRB-4719/2No -earlier 2022than Legislature30 -days 7following -the ZDW:skwinterest SECTIONas 6provided SENATEin BILL 900 (b) The determination of the municipality under sub.

(4) that(c) the2. proposed shoreline is in the public interest is not supported by substantial evidence.

(9)unless Ethe FFECTdepart- OFpublic DETERMINATION.notice, the municipality shall determine whether ment determines any of the following:

(a) A determination under this section establishes the shoreline forproposed purposesunder ofsub. determining the boundary of title between land held in trust by the state and land held in fee title ownership.

For(3) land(b) held1. in fee title ownership as determined under this section, this determination operates in the same manner as if a person were granted quiet title to the property by a court under s.

is in the pub- 1.

A portion of the area landward of the shoreline lic interest as provided in par.

(c) 2.

approved by the municipality under sub.

(4) is not (b) A municipality may by ordinance adopt a pro- upland.

If a determination under this paragraph is made, posed shoreline for multiple properties within the munic- the department shall modify the proposed shoreline so ipality that abut a Great Lakes water if the municipality that any portion that is not upland remains waterward of determines that the location of the shoreline is in the pub- the shoreline and shall approve the modified shoreline.

lic interest as provided in par.

(c) 2.

2.

The determination of the municipality under sub.

(c) In making a determination under this subsection, (4) that the proposed shoreline is in the public interest is the municipality shall approve the proposed shoreline if not supported by substantial evidence.

all of the following apply:

(b) If the department does not make a determination 1.

The property meets the requirements under sub.

under this subsection in the period required under sub.

(7) (2) (a) to (d).

(b), the proposed shoreline is deemed approved.

Senate Bill 900 − 3 − 2021 Wisconsin Act (9) E FFECT OF DETERMINATION.

(a) A determination (d) The legislature finds that the historical record to under this section establishes the shoreline for purposes determine the location of the shoreline at the date of state- of determining the boundary of title between land held in hood, and the extent of natural or artificial changes to trust by the state and land held in fee title ownership.

For lake bed areas before and after statehood, is often incom- land held in fee title ownership as determined under this plete and inconclusive.

section, this determination operates in the same manner (e) The legislature declares that the uncertainty of as if a person were granted quiet title to the property by title to and the uncertainty associated with permissible a court under s.

(b) A determination under this sectionsec- doesuses notof altersome lakefront property are a substantial impedi- tion shall be recorded with the rightsregister of anydeeds recordand titlement holderto otherorderly thanredevelopment toand establishtransfer of valuable posted on the shorelinedepartment’s underInternet par.site.

(b) A determination under this section does not alter lakefront properties, and it is in the public interest to pro- mote the use of upland areas in a way that provides cer- the rights of any record title holder other than to establish tainty and facilitates economic development, increased the shoreline under par.

(c)tax Thisbase, sectionand doespublic doesaccess. not alter the right of property owners to seek a quiet title action under common law.

S(c) ECTIONThis 7.section does does not alter the right of prop- (f) The legislature recognizes that courts have held erty owners to seek a quiet title action under common law.

that the location of the boundary of lake bed can change SECTION 7.

885.335 Actions concerning real estate abuttingnear Great and that title to such areas can be adjusted under the com- mon law doctrines of accretion and reliction through both Lakes water.waters or commercial rivers.

(1) No actionclaim affecting the possession or titlenatural ofprocesses anyand realthrough estate may be commenced, by any person, the state,placement or a political subdivision or municipal corporation of theartificial state,counterclaim based on an assertion that the property includes portions of land that may havebe atmade onein timean beenaction submergedrelating beneathto athe Greatfill. Lakes water if such portions of land are upland, as defined in s.

30.2039De (1)Simone (e),v. and the property is not subject to a lake bed grant or a submerged land lease.

(END)Kramer, 77 Wis.

2d 188 (1977);

Heise possession or title of any real estate if the claim or coun- v.

Village of Pewaukee, 92 Wis.

2d 333 (1979);

W.

H.

terclaim is based on an assertion that the property Pugh Coal Co.

v.

State, 105 Wis.

2d 123 (1981);Doemel includes portions of land that may have at one time been submerged beneath a Great Lakes water if such portions v.

Jantz, 180 Wis.

225 (1923);

Angelo v.

Railroad Com., Wis.

543 (1928);

Jansky v.

City of Two Rivers, 227 of land are upland, as defined in s.

30.2039 (1) (e), and the Wis.

228 (1938).

The legislature finds that the system for property is not subject to a lake bed grant or submerged establishing the shoreline of Great Lakes waters under s.

land lease.

30.2039, as created by this act, is permissible under the (2) No claim or counterclaim may be made in an action relating to the allowable use of any real estate if the law because this system is based upon the longstanding claim or counterclaim is based on an assertion that the doctrine of accretion.

property includes portions of land that may have at one (g) The legislature declares that the best available method to establish the shoreline between a Great Lakes time been submerged beneath a commercial river, as lake bed and adjoining uplands for purposes of establish- defined in s.

30.01 (1h), or an assertion that the allowable ing ownership and allowable use of the adjoining uplands use of the property is otherwise limited by a prior approval issued by the state or a local government, if s.

is the method established under s.

30.2039, as created by 30.122 (2) is applicable to such portions of land.

this act, and that this method is in the public interest, is SECTION 9.Nonstatutory provisions.

consistent with the public trust doctrine, and promotes the most equitable method of determining the ownership (1) L EGISLATIVE FINDINGS.

and use rights applicable to lakefront property on the (a) The legislature recognizes and declares that the state is the trustee of the public trust established under Great Lakes.

article IX, section 1, of the Wisconsin Constitution and (h) Should a reviewing court of competent jurisdic- that the legislature is authorized as representative of the tion disagree with the legislative finding in par.

(g), the state to exercise the function of the trustee of that public legislature finds that the system for establishing the shoreline of Great Lakes waters under s.

30.2039, as cre- trust in matters of specific application.

ated by this act, is permissible under the law because case (b) The legislature recognizes that title to natural lake beds as existing at statehood, including those in the Great law allows the legislature to make certain limited trans- Lakes, generally is held by the state.

State v.

Bleck, 114 fers of lake bed to a private party if it is part of a larger Wis.

2d 454 (1983);

Illinois Steel Co.

v.

Bilot, 109 Wis.

process that is in the public interest.

Milwaukee v.

State, (1901);

State v.

Trudeau, 139 Wis.

2d 91 (1987).

193 Wis.

423 (1927).

The legislature finds that any trans- (c) The legislature finds that the combination of the fers of former lake bed to a private party under s.

30.2039, dynamic nature of Great Lakes waters and the evolution as created by this act, are nominal transfers and are part of commercial harbors, urban areas, and other lakeshore of a process ensuring that uses of waterfront property development has resulted in considerable changes in the serve public interests.

The department of natural lake bed shoreline compared to the original government resources is not required to prepare a report under s.

survey.

In many places, formerly submerged areas have 13.097 (2) with respect to the process by which the become upland and have been used for public or private department may establish a shoreline under s.

30.2039, as purposes for decades.

created by this act.

Wisconsin Act − 4 − 2021 Senate Bill 900 (i) Should a reviewing court of competent jurisdic- a navigable water so long as the land constitutes part of tion disagree with the legislative findings in pars.

(g) and the bed of the stream, and if the course of the stream is (h), the legislature finds that the system for establishing changed so that the land is no longer is part of the river the shoreline of Great Lakes waters under s.

30.2039, as bed, it ceases to be impressed with the public trust.

The created by this act, is permissible under the law because legislature recognizes that the state has allowed the relo- this system is separately supported by the longstanding cation of navigable streams under s.

30.195 and, when doctrine of adverse possession.

The property subject to such action is taken, any area that was formerly the bed s.

30.2039, as created by this act, has been upland for of a stream is no longer subject to the public trust and may more than 40 years, which is consistent with the doctrine be used for any allowable private purpose.

of adverse possession.

Multiple cases have indicated that the allowance for adverse possession of formerly sub- (L) The legislature recognizes that the historic record merged lands is constitutional.

Illinois Steel Co.

v.

Bilot, on the extent of natural or artificial changes to the original Wis.

418 (1901);

State v.

Bednarski, 1 Wis.

2d 639 riverbank and river bed is often incomplete and inconclu- sive.

(1957);

State v.

Adelmeyer, 221 Wis.

246 (1936).

(m) The legislature finds that where riverfront prop- (j) The legislature recognizes that in interpreting the erties in incorporated areas have been filled for an public trust, the courts in Wisconsin have made a distinc- tion between the ownership of the beds of navigable extended time, any public rights in navigable waters that streams and natural lakes.

For stream beds, the title is existed in the submerged area were extinguished when held by a fee title owner but this title is qualified by the that area became upland and pursuant to s.

30.122, as rights of the public to use the water for navigation.

affected by this act, and riverfront properties in incorpo- rated areas are no longer subject to the public trust.

It is Munninghoff v.

Wis.

Conservation Com., 255 Wis.

252 (1949);

FAS, LLC v.

Town of Bass Lake, 2007 WI 73.

now in the public interest to promote the use of upland (k) The legislature recognizes that in Muench v.

Pub- areas in a way that provides certainty and flexibility for lic Service Com., 261Wis.

492 (1952), the court held that property owners, facilitates economic development and the public trust extends only to land under the stream of redevelopment, and increases the local tax base.