AB 849

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

and harbors. 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 uses will promote the interests of the public. 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 if

the portions of land are upland and not subject to a lake bed grant or a submerged

land lease.