LAKE KEGONSA 5-04082014170208 (copy)

Shoreline of Lake Kegonsa in April 2014.

PHOTO BY MIKE DeVRIES

A proposal to change to how Wisconsin’s shorelines are regulated is being criticized by environmental groups but supported by private owners seeking to build on their property along lakes and rivers.

The bill would transfer some rights of public water banks, currently governed by the state, into the hands of private owners.

Proponents say the changes are needed to protect private property rights, enabling owners of riverbank areas to build on their own land after working with the Department of Natural Resources. But the League of Conservation Voters and other critics call the bill a "polluter grab bag" and say it will lead to the degradation of the state’s lakes and streams and the habitats they host.

Under current law, the state owns bodies of water that are large enough to navigate for public purposes. The state’s authority over that water is known as the Public Trust Doctrine, which is laid out in the state Constitution.

Dredging remains a sticking point in the bill, which would allow private riverbank owners to dredge water adjacent to their land or that flows through their land. The proposal would change how dredging is permitted by the DNR, moving it from specialty permit rules to general permit rules.

A general permit could allow shoreline owners to remove up to 30 cubic yards of material from the bed of an inland lake and up to 100 cubic yards of material from the bed of outlying waters in the owner's riverbank zone. The bill would maintain public access to waterways and bodies of water that were public prior to Jan. 1, 2016.

The areas where more dredging could occur are crucial habitat areas for fish, said George Meyer, executive director of the Wisconsin Wildlife Federation, testifying in a hearing for the bill Wednesday.

“The dredging aspect of the bill is probably the worst aspect of the bill from an ecological standpoint,” Meyer said. “These near-shore areas are critical areas for fish and wildlife habitat in the state. DNR should be allowed to inspect these areas before permits are issued.”

Nearly every environmental conservation group and hunting, fishing and trapping group in the state oppose the bill. There are nearly 200 in the state who have joined to oppose it, Meyer said.

Hunting and fishing groups support streamlining some regulations, but want any changes to balance protections for habitats on the lakes and rivers, said Nels Swenson, public policy chairman for Wisconsin Ducks Unlimited.

But Sen. Frank Lasee, R-DePere, who wrote the legislation, and other proponents of the bill say it aims to enable private property owners to work with the state to build on their own land.

“We’d like this bill to move people’s ability to do things on and around water forward and to protect our environment,” said Lasee. Lasee authored the legislation with Rep. Adam Jarchow, R-Balsam Lake. Both noted they are committed to working with the DNR and conservation groups to come up with a bill that achieves everyone's goals. 

The DNR would be prohibited under the new rules from requiring a person to collect sediment, which can contain toxins, as a part of a permit application. It would also create exemptions in the permit for some types of shoreline maintenance activity and dredging in an artificial water body that is not connected to a navigable waterway.

Robert Welch, a lobbyist for the Riparian Owners for Fox Valley, which has spent $18,000 lobbying on the bill, according to the Government Accountability Board, said the bill only seeks to better clarify the sensitive riverbanks that should be protected and deserve a more rigorous permitting and review process. The Wisconsin Realtors Association and Wisconsin Builders Association also support the bill.

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Sensitive areas need to be treated as such, he said. But "in the vast majority of these bodies of water they’re not sensitive,” he said.

Welch and other builder groups said the permitting process can be arduous and reform is needed to help private property owners more quickly get the permits they need for a construction project.

Under the current rules, the department approves about 86 percent of the permit applications it receives after working with applicants, said Pam Biersack, of the DNR.

What is the Public Trust Doctrine?

The doctrine, enshrined in the state Constitution, is the basis for laws governing water in Wisconsin. It says that the state’s water belongs to everyone. It declares that all navigable waters are "common highways and forever free," and held in trust by the Department of Natural Resources, according to the state.

The Doctrine was based on ideas found in the Northwest Ordinance of 1787, which outlined the rights of new states being admitted to the union. Language in the state Constitution is directly lifted from the Ordinance.

The Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of private property owners and public rights, the public's rights are primary.

The Doctrine also requires the state to intervene to protect public rights in the commercial or recreational use of navigable waters. The DNR, as the state agent charged with this responsibility, can do so through permitting requirements for water projects, through court action to stop nuisances in navigable waters, and through statutes authorizing local zoning ordinances that limit development along navigable waterways.

Katelyn Ferral is The Cap Times' public affairs and investigative reporter. She joined the paper in 2015 and previously covered the energy industry for the Pittsburgh Tribune Review. She's also covered state politics and government in North Carolina.