Chapter 1 Updates: Water Law Basics
§1.01d(2) Definition of the Ordinary High Water Mark (OHWM) p. 10 fn. 52
2013 Wis Act 358 created Wis. Stat. § 236.025 which allows surveyors to incorporate into a map plat or survey an ordinary high water mark determined by the DNR or approximated by the surveyor. 2016 Wis. Act 391 created Wis. Stat. § 59.692(1h) that provides that where a surveyor has designated an OHWM the property owner can rely on it for purposes of shoreland zoning unless the DNR has identified the OHWM under s. 30.102.
§1.02b(2) Title to the Beds of Navigable Waters; p. 16 fn 78.
2013 Wis Act 358 created Wis. Stat. § 236.20(6) which provides that the final plat of a subdivision or a certified survey map must show a statement that any land below the OHWM of a lake or navigable stream is subject to the public trust.
§1.03b(2) Riparian Title on Natural Waterbodies pp. 24-25
2013 Wis Act 358 created Wis. Stat. § 710.09 which codifies the holding in FAS LLC v. Town of Bass Lake 2007 WI 73, that a navigable stream does not divide a lot into two parcels where the same person owns land on both sides of the stream.
§1.04a(2) Authority of the Wisconsin Department of Natural Resources p.32
2011 Wis. Act 21 contains provisions designed to circumscribe the DNR's authority. It created Wis. Stat. § 227.10 (2m) which provides, "No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter."
An opinion by the Wisconsin Attorney General on May 10, 2016, concluded that this provision proscribes the authority to DNR to impose conditions on high capacity wells absent express statutory authorization. It rejected the contention of the Wisconsin Supreme Court in Lake Beulah that the general authority of the DNR in Wis. Stat. § 281.11 and 281.12 was insufficient. This opinion has been read by some to remove any implied authority but the implications of this opinion beyond high capacity wells is not yet clear.
The provisions of 2011 Wis. Act 21 also added a number of procedures to the state rulemaking process. The result of this and related changes have made the rulemaking process very time consuming and cumbersome. In most cases rulemaking is now at least at 3 year process. As a result, the DNR, is relying much more heavily on agency guidance. This guidance on various topics and programs can be found with some effort on the DNR website. Although guidance is technically not binding or enforceable as a matter of law, it does reflect the policies and procedures DNR uses in many of its regulatory programs. Therefore it is imperative to determine whether guidance exists on a topic to gain a full understanding DNR administration of the law.
§1.01d(2) Definition of the Ordinary High Water Mark (OHWM) p. 10 fn. 52
2013 Wis Act 358 created Wis. Stat. § 236.025 which allows surveyors to incorporate into a map plat or survey an ordinary high water mark determined by the DNR or approximated by the surveyor. 2016 Wis. Act 391 created Wis. Stat. § 59.692(1h) that provides that where a surveyor has designated an OHWM the property owner can rely on it for purposes of shoreland zoning unless the DNR has identified the OHWM under s. 30.102.
§1.02b(2) Title to the Beds of Navigable Waters; p. 16 fn 78.
2013 Wis Act 358 created Wis. Stat. § 236.20(6) which provides that the final plat of a subdivision or a certified survey map must show a statement that any land below the OHWM of a lake or navigable stream is subject to the public trust.
§1.03b(2) Riparian Title on Natural Waterbodies pp. 24-25
2013 Wis Act 358 created Wis. Stat. § 710.09 which codifies the holding in FAS LLC v. Town of Bass Lake 2007 WI 73, that a navigable stream does not divide a lot into two parcels where the same person owns land on both sides of the stream.
§1.04a(2) Authority of the Wisconsin Department of Natural Resources p.32
2011 Wis. Act 21 contains provisions designed to circumscribe the DNR's authority. It created Wis. Stat. § 227.10 (2m) which provides, "No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter."
An opinion by the Wisconsin Attorney General on May 10, 2016, concluded that this provision proscribes the authority to DNR to impose conditions on high capacity wells absent express statutory authorization. It rejected the contention of the Wisconsin Supreme Court in Lake Beulah that the general authority of the DNR in Wis. Stat. § 281.11 and 281.12 was insufficient. This opinion has been read by some to remove any implied authority but the implications of this opinion beyond high capacity wells is not yet clear.
The provisions of 2011 Wis. Act 21 also added a number of procedures to the state rulemaking process. The result of this and related changes have made the rulemaking process very time consuming and cumbersome. In most cases rulemaking is now at least at 3 year process. As a result, the DNR, is relying much more heavily on agency guidance. This guidance on various topics and programs can be found with some effort on the DNR website. Although guidance is technically not binding or enforceable as a matter of law, it does reflect the policies and procedures DNR uses in many of its regulatory programs. Therefore it is imperative to determine whether guidance exists on a topic to gain a full understanding DNR administration of the law.
