2023 Wisconsin Statutes & Annotations › Chapter 281 - Water and sewage. › 281.31 - Navigable waters protection law.

281.31
Navigable waters protection law.
(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.
(2)
In this section, unless the context clearly requires otherwise:
(c)
“Municipality" or “municipal" means a county, village or city.
(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.
(e)
“Regulation" means ordinances enacted under ss. 59.692, 61.351, 61.353, 62.23 (7), 62.231, and 62.233 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.
(f)
“Shorelands" means the lands specified under par. (e) and s. 59.692 (1) (b).
(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.
(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 any of the following:
(a)
Lands adjacent to farm drainage ditches if all of the following apply:
1.
The lands are not adjacent to a natural navigable stream or river.
2.
Those parts of the drainage ditches adjacent to these lands were nonnavigable streams before ditching.
(bg)
Lands adjacent to artificially constructed drainage ditches, ponds, or storm water retention basins that are not hydrologically connected to a natural navigable water body.
(c)
Lands adjacent to an impoundment described under s. 30.10 (2) (b) that does not discharge directly into a natural navigable waterway.
(3)
(a)
The department shall coordinate the activities of the several state agencies in managing and regulating water resources.
(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:
1.
On the basis of these studies and plans make recommendations to existing state agencies relative to their water resource activities.
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.
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.
(5)
(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:
1.
Domestic uses shall be generally preferred.
2.
Uses not inherently a source of pollution within an area shall be preferred over uses that are or may be a pollution source.
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.
4.
Use locations within an area tending to minimize the possibility of pollution shall be preferred over use locations tending to increase that possibility.
5.
Use dispersions within an area shall be preferred over concentrations of uses or their undue proximity to each other.
(b)
The department shall apply to the plan the standards and criteria set forth in sub. (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.
(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.
(8)
This section and ss. 59.692, 61.351, 61.353, 62.231, and 62.233 shall be construed together to accomplish the purposes and objective of this section.
(9)
Sections 30.50 to 30.80 are not affected or superseded by this section.
(10)
A person aggrieved by an order or decision of the department under this section may cause its review under ch. 227.
History:  1975 c. 232; 1977 c. 29; 1981 c. 330, 339; 1983 a. 189, 416; 1993 a. 246; 1995 a. 201; 1995 a. 227 s. 432; Stats. 1995 s. 281.31; 2013 a. 80; 2013 a. 151 s. 28; 2015 a. 55; 2017 a. 164.
A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now this section and s. 59.692] does not amount to an unconstitutional taking of property. Discussing police powers and eminent domain. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).
The concept that an owner of real property can, in all cases, do as the owner pleases with the owner's 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).
By enactment of this section and s. 59.692, the legislature intended that towns would not have authority to regulate shorelands except where such regulation fell within the language of s. 59.692 (2) (b) [now s. 59.692 (2) (b), (bg), and (bm)]. That statutory scheme does not distinguish between towns with village powers and those without. Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, 12-2058.
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 sub. (2) (d)]. 63 Atty. Gen. 355.
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 (1973).
The Public Trust Doctrine. Dumphy. 59 MLR 787 (1976).
Water Quality Protection for Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution. Kusler. 1970 WLR 35.
This Land Is Whose Land? Changing Concepts of Land as Property. Large. 1973 WLR 1039.
Wisconsin's Shoreland Management Program: An Assessment with Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.