Republicans in the Wisconsin Legislature want to change state law to ensure that a private landowner can keep the public out of a pond he created as a place for people with disabilities to fish in peace and quiet.
An Assembly committee Tuesday approved a bill prohibiting the state from opening up public access to waterways that were made deeper by a dam as part of a wildlife-restoration project.
Conservationists are concerned the legislation may chip away at a provision of the state constitution that declares all navigable waters to be “common highways and forever free.”
If a lake, stream or pond is usually deep enough to float a boat, it is considered public even if it is surrounded by privately owned land.
People can’t legally cross private land to get to the water, but they are within their rights as long as they keep their feet wet or stay in a boat.
Assembly Bill 599 was introduced after developer Leland Christenson told lawmakers he was concerned that the state might change the designation of waters on his land in Chippewa County from non-navigable to navigable after he dammed a shallow stream to create a 90-acre pond.
The state Assembly Committee on Environment and Forestry passed AB 599 Tuesday on a 7-3 vote with all Republican members in favor and all the no votes coming from Democrats.
Christenson is participating in a U.S. Fish and Wildlife Service program that assists private landowners in restoring wildlife habitat.
Stocking the pond with fish and installing wheel-chair accessible docks is part of his plan to provide an accessible, therapeutic outdoor experience, according to state Sen. Terry Moulton, a Republican from Chippewa Falls who authored the Senate version of the bill.
The bill “ensures private property rights and simultaneously creates a net environmental benefit,” Moulton said in testimony at a public hearing.
The state Department of Natural Resources determined the stream on Christenson’s property was non-navigable in 2008 and it hasn’t changed the designation, according to the River Alliance of Wisconsin, which has been tracking the legislation.
If enacted, the bill would take away the DNR’s authority to redesignate as navigable any waters deepened by dams if the owner is enrolled in the federal restoration program like the one offered by the Fish and Wildlife Service.
The owners would also be exempted from local shoreland zoning laws aimed at preventing runoff from construction projects or storm water from degrading water quality.
AB 599’s author, Rep. Romaine Quinn, said “natural changes in water flows and rainfall” are good reasons for redesignation, but the DNR’s authority to act based on higher water levels caused by dams was an “unfortunate oversight” in current law.
“(Under the bill) once a determination of non-navigability is made for a stream and a dam is built that modifies the flow of that stream, the DNR cannot change the rules of the game and determine that the stream must now be opened to the public,” said Quinn, R-Rice Lake, at a recent hearing.
The DNR would regain its authority if a dam were removed and changes to the stream and adjacent land were returned to the state they were in before the restoration project.
An amendment offered Tuesday by the chairman of the Assembly panel, Rep. Jeffrey Mursau, R-Crivitz, would narrow the bill’s scope further by preserving DNR authority to redesignate trout streams.
The amendment prompted some of the bill’s opponents to soften their stances, but not to support the legislation.
“The changes to this bill are not robust enough to garner our full support,” said Allison Werner of the River Alliance.
After the vote, Rep. Jimmy Anderson, a Fitchburg Democrat, said the bill was poor public policy.
“We must protect navigable waters because of the downstream effects they have on wildlife, recreation, and the quality of our rivers and lakes,” Anderson said. “Changing state law for one case is a terrible practice no matter how narrowly focused.”
DNR spokesman Jim Dick wouldn’t disclose how frequently or under what circumstances the department has redesignated water bodies as navigable.
The Senate version of the proposal was approved by a committee in a 3-2 vote on Dec. 12, making it available for a vote by the full Senate.