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New rules for Great Lakes lakefront property development head to governor again

Source: Drake White-Bergey / Wisconsin Watch

New rules for Great Lakes lakefront property development head to governor again

The bill carries the potential to reduce public access to lake shorelines.

February 27, 2024 11:19 AM CDT

By: Bennet Goldstein / Wisconsin Watch

A largely GOP-backed bill that would enable private waterfront development on public lands that were once submerged in Wisconsin’s Great Lakes waters has passed both state houses and now heads to the desk of Democratic Gov. Tony Evers.

Generally, the state owns and holds such property in trust for the public, but proponents of Senate Bill 541 say the parcels often remain unused and carry a cloud of uncertainty over ownership that inhibits their development, leading cities and villages to lose revenue.

“For too long, communities like Racine and other legacy cities have been left with former industrial and/or blighted waterfront property with no clear path forward on how to redevelop these lands for public improvement, shoreline resiliency or public access,” Racine Mayor Cory Mason, a Democrat, testified at a November public hearing.

Critics, meanwhile, charge that the bill would unconstitutionally convert protected, public lands to private ownership and use.

Here’s what you need to know:

Some context: Wisconsin’s public trust doctrine, elements of which are found in the state constitution, provides that the state owns lakebeds. Naturally or artificially filled lakebeds, and some riverbeds, generally cannot be developed or used without a state permit or lease. When they are, development typically concerns public navigation and recreation.

Although Wisconsin didn’t begin comprehensively permitting and regulating the use of lake fill until 1977, the public trust applies to any Great Lakes lakebed that was submerged when Wisconsin became a state in 1848.

Some filled lands predate regulation and historically have been developed or sold. Their deeds might list a local public or private entity as the title holder. Yet changes to their use and development can be challenged under the public trust doctrine.

The bill: Co-authored by Rep. Robert Wittke, R-Racine, and Sen. Duey Stroebel, R-Saukville, the bill would affect parcels in Lake Superior, Lake Michigan, Green Bay, Sturgeon Bay and Great Lakes river harbor areas.

It would enable Wisconsin cities and villages to alter the way a previously filled Great Lakes lakebed or riverbed is used and to propose new development, contingent on Wisconsin Department of Natural Resources authorization.

In the latter case, municipalities would be required to submit a development plan that includes areas dedicated to public and private uses. Department approval entails the redrawing of boundaries between public trust land and privately owned property.

Another bill provision would automatically remove lakebed status from parcels physically separated since 1977 from the Great Lakes by another parcel, thereby conferring full ownership rights onto the title holder. That means those now-separated parcels could be sold for private development.

The bill likewise would remove public trust protections from former lakebed land adjacent to the Great Lakes, above the high-water mark since 1977 and whose use hasn’t “materially changed.”

Yea: Paul Kent, a lobbyist representing the Wisconsin League of Municipalities, said the proposal recognizes that “the boundaries of water bodies change” and clarifies an area of the law that has otherwise been addressed by courts and the Wisconsin Legislature, which have awarded ownership to lakebed on an ad hoc basis.

In an interview, Stroebel said the ad hoc process and potential for litigation in which a person challenges an owner’s title under the public trust doctrine are “expensive” and “wasteful.”

“There could be a more common sense determination made, just based upon the facts, not based upon how good your lawyer happens to be,” he said.

If it’s enacted, Wittke expects the measure to foster economic development in shoreline communities like Ashland, Bayfield, La Crosse, Milwaukee, Oshkosh, Sheboygan, Sturgeon Bay and Superior.

Nay: Critics say, despite multiple bill amendments, the measure still unconstitutionally enables private ownership and use of public lands.

“In the hands of an administration that is interested in protecting the public trust, the DNR can probably prevent the worst possible outcomes,” the environmental groups Midwest Environmental Advocates, Wisconsin Conservation Voters and Clean Wisconsin wrote in a memo recently circulated to lawmakers. “But in the hands of another administration, the statute might be misused to permit improper conversions of public trust lands.”

Opponents also fear the automatic provisions as nobody is sure how much land would be affected “with the stroke of the governor’s pen.”

Why watch? Interpretation and application of the public trust doctrine in the Great Lakes region vary among states. Like its predecessor, the Wisconsin bill carries the potential to reduce public access to lake shorelines.

Evers vetoed a similar bill in 2022, stating that while he appreciated “the Legislature’s efforts to clarify the law in this area,” he believed the bill “would violate the constitutional public trust doctrine in certain applications” and “could likely lead to litigation.”

The authors said they have worked to address those concerns by strengthening the review process and ensuring waterfront development plans include a public benefit. They also have removed components that would have mandated, rather than merely allowed, the DNR to approve waterfront development plans.

Sen. Melissa Agard, D-Madison, who voted against the bill on the Senate floor, said the fact that groups on both sides of the issue and local government leaders have worked on the proposal across multiple legislative sessions speaks to the importance of clarifying the law. The conversation should continue, she said.

What’s next? The bill recently passed the Wisconsin Senate, 23-9, on a near party-line vote, with all Republicans and one Democrat in favor. The Assembly subsequently approved the measure last Tuesday on a voice vote. Representatives from the governor’s office did not respond to requests for comment.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.

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