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...the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence and the carrying places between the same shall be common highways and forever free as well as to the inhabitants of the State as to the citizens of the United States, without any tax, impost or duty therefor – Article IX, Section 1, Wisconsin Constitution
This provision of law was adopted by the Territorial Convention on February 17, 1848 as a condition of admitting Wisconsin to the Union. So the guarantee of public rights to Wisconsin's waters is older than the state itself. Just as a stream meanders to find its stable course, so our water laws have been argued and shaped throughout our history by the courts and Legislature, defining public and private rights to the waterways and the wiggly line where shoreland meets water.
In 1848, rivers truly were the vital arteries of the young nation and its newest state. Though the Wisconsin landscape today bears scant resemblance to presettlement conditions, our rivers and lakes are no less vital to our present or our future. And water law remains a battleground as people expect our waters to accommodate a broad range of public interests.
'Twas ever thus.
The first sawmills in Wisconsin were built on the Fox River at DePere in 1809, on the Black River in 1819 and on the Wisconsin River in 1831. The territorial courts lost no time in designating any stream that could be used to float a sawlog as "public water." The Legislature reinforced those rights in 1895 by enacting laws that all lakes in the state which had been meandered and surveyed would remain public."
In the era when lumber barons ruled landscapes, wealthy hunters and anglers formed private clubs to protect streams, lakes and marshes for their exclusive use. The "have-nots" settled for the poor remains. Diverse individuals from Civil War veteran Frank Wade of Hudson (1898) to State Senator Paul Husting of Horicon (1911) challenged these private clubs, brought suit and prevailed at the State Supreme Court contending that all navigable waters were public, and public rights in Wisconsin included fishing and hunting on lakes and streams.
The fast pace of commerce changed demands on the water as well. By 1900 log driving had practically ceased. It was cheaper to purchase power than to maintain a gristmill or sawmill. Gradually recreation replaced lumber and power as the most valuable commercial enterprise on water. The Legislature recognized that keeping up appearances and access along waterways was key to protecting its value for tourism. Chapter 523 of the Laws of 1929 declared "the enjoyment of natural scenic beauty is declared to be a public right..." The law stated that no permits would be issued for a dam that would be contrary to the public interest, considering natural scenic beauty. The law effectively stopped obstructions to public rights in lakes and streams, but stopped short of preserving the look of the shoreline.
Wisconsin's population grew and thrived. Second-growth forests became valuable to papermakers. Irrigation and drainage enabled vegetable growing and canning industries. Waste products from these industries and from riverside communities ran into the rivers. Citizens demanded and got action. Through a new conservation group, the Izaak Walton League, industries and agencies cooperated in cleaning up waters.
With prosperity, more and more Wisconsinites were able to live their dream of vacationing at water's edge, building a summer cottage on the shoreline, or retiring on a lakeside lot. Each bit of development took up only a tiny fraction of the abundant lakeshore or riverfront, but bit by bit, these shallow shores are lost. As the Supreme Court ruled in a 1966 case where a landowner extended his property into Plum Lake, a little fill here and a little fill there and soon a great waterbody is gone. "Our navigable waters are a precious heritage, once gone they disappear forever."
Economic success in Wisconsin continues. Today, those who can no longer find a lakeshore property procure their slice of the waterfront by renting a boat slip at a marina pier. Such development has consequences for people and waterways. Lakeshore owners, anglers and sailors alike list peace and quiet as their top reason for being on the water. Biologists are showing us that these boat slips are built over the same shallow waters that are critical habitat for the spawning fish, but scientists can't yet predict just how much habitat loss our fisheries can take. Citizen lawsuits on these matters are making their way through the courts in Waukesha and Florence counties. Lake groups and local governments are cooperating to map out future waterfront uses. And so the tussle to define private privileges on public waters continues.
Mary Ellen Vollbrecht is chief of the Rivers and Regulation Section of DNR's Bureau of Fisheries Management and Habitat Protection.