Mining, Wetlands Deregulation Bills Strike At Wisconsin Water Law, Tradition

Bills set for introduction this week in the Legislature will severely curtain protections to Wisconsin waters - - protections through principles, tradition and law handed down before statehood in the Northwest Ordinance of 1787, embedded in the Wisconsin state constitution and agreed to separately in 19th-century treaties with the Ojibwe people in exchange for lands in Northern Wisconsin that helped create the boundaries of the state.

The rush to privatize Wisconsin waters and permit development into and near streams, rivers, lakes and wetlands - - led by State Sen. Neal Kedzie, (R-Elkhorn) on behalf of powerful trade associations and lobbies - - will erode resources that belong to all of us and define our quality of life.

"You either get the job done or you get out of the way," Kedzie says. Not the conservationist he used to be; one-sided obesiance to wetlands-fillers may trigger recall efforts against him.

Read the giddy paean from the Builders Association - - a group that has supplied insiders for the most senior DNR positions - - to the wetlands deregulation bill, here.

Despite the documented billions of dollars in added value that wetlands provide the state.

Take a moment also to read the description of The Trust Doctrine copied intact from the DNR website, and contact your legislators (here's how to locate and contact them) - - see Wisconsin Wetlands Association "Alert" here - - now before irreplaceable land,, water and state character is lost forever:

The Public Trust Doctrine

Wisconsin's Waters Belong to Everyone

Wisconsin lakes and rivers are public resources, owned in common by all Wisconsin citizens under the state's Public Trust Doctrine. Based on the state constitution, this doctrine has been further defined by case law and statute. It declares that all navigable waters are "common highways and forever free", and held in trust by the Department of Natural Resources.

Assures Public Rights in Waters

Wisconsin citizens have pursued legal and legislative action to clarify or change how this body of law is interpreted and implemented. Watch how their efforts have benefitted all Wisconsinites: "Champions of the Public Trust" [VIDEO length: 28:02]

As a result, the public interest, once primarily interpreted to protect public rights to transportation on navigable waters, has been broadened to include protected public rights to water quality and quantity, recreational activities, and scenic beauty.(1) 
 
All Wisconsin citizens have the right to boat, fish, hunt, ice skate, and swim on navigable waters, as well as enjoy the natural scenic beauty of navigable waters, and enjoy the quality and quantity of water that supports those uses.(2)

Wisconsin law recognizes that owners of lands bordering lakes and rivers - "riparian" owners - hold rights in the water next to their property. These riparian rights include the use of the shoreline, reasonable use of the water, and a right to access the water. However, the Wisconsin State Supreme Court has ruled that when conflicts occur between the rights of riparian owners and public rights, the public's rights are primary and the riparian owner's secondary.(1)

What are Wisconsin's stream and lake access laws?

Wisconsin's Public Trust Doctrine 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.

The court has ruled that DNR staff, when they review projects that could impact Wisconsin lakes and rivers, must consider the cumulative impacts of individual projects in their decisions.

"A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin State Supreme Court justices in their opinion resolving Hixon v. PSC.(2)

---

Sources:
(1) Quick, John. 1994. The Public Trust Doctrine in Wisconsin. Wisconsin Environmental Law Journal, Vol. 1, No. 1.

(2) "Champions of the Public Trust, A History of Water Use in Wisconsin" study guide. 1995. Wisconsin Department of Natural Resources Bureau of Water Regulation and Zoning. Champions of the Public Trust - PDF 1,390kb