Why We Regulate Waterways: The Public Trust Doctrine
Wisconsin Lakeshore Sunset
Wisconsin's Waters Belong to Everyone
Since 1787, when the Northwest Ordinance was adopted to govern the Wisconsin Territory, the state's navigable waterways have been considered public and for the use of all citizens. Article IX of the Wisconsin Constitution declares that all navigable waters are "common highways and forever free" and held in trust by the state of Wisconsin.
First, the Railroad Commission, then the Public Service Commission and finally the Department of Natural Resources (DNR) have been charged with the duty to protect the public trust in our navigable waters.
Wisconsin's Public Trust Doctrine requires the state of Wisconsin to intervene to protect public rights in the commercial and recreational use of navigable waters. The state and the DNR do this through permitting requirements for water projects, court action to stop nuisances in navigable waterways and statutes authorizing local zoning ordinances that limit development along navigable waterways.
Public Interests Protected in Navigable Waters
The Public Trust Doctrine applies to all navigable waters, which are defined as any waterway on which it is possible to float a canoe or small watercraft at some time during the year. The Public Trust Doctrine protects the people of Wisconsin's rights to:
- Transportation and navigation on waterways.
- Protection of water quality and aquatic habitat.
- Recreational activities, including boating, fishing, hunting, trapping and swimming in waterways.
- Enjoyment of scenic beauty while on the water.
The Public Trust Doctrine and Riparian Rights
Wisconsin law recognizes that an owner of land that borders lakes and rivers, known as a riparian owner - holds rights to use the water next to their property. Riparian rights include the use of the shoreline, reasonable use of the water, and a right to access the water. 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 are secondary.
Citizen Action and the Public Trust Doctrine
Wisconsin citizens have taken action to protect the public interest in navigable waters and have had a significant impact on the Public Trust Doctrine. Watch how their efforts have benefitted all Wisconsinites in this three-part video series: Champions Of The Public Trust Part 1 [Exit DNR]
Read about those efforts here: Champions Of The Public Trust [PDF].
Shared Responsibility for Water Protection
The DNR Waterways Program helps people understand their water rights and administers and enforces the laws which protect them.
The U.S. Army Corps of Engineers may require permits for dams, dikes and other structures in federal navigable waters and for the discharge of dredged or fill material into waters and wetlands. The U.S. Coast Guard regulates the construction of bridges and causeways over federal navigable waters.
Local governments (counties, cities, villages, towns) use floodplain and shoreland zoning to control development along lakeshores and streams through permit programs for buildings, land disturbance and other activities in shoreland and floodplain areas.
We are all responsible for water rights protection. You can protect water rights by following proper procedures and obtaining needed permits for activities in public waters. You can also report activities that may be in violation of laws so that damages can be avoided or corrected, and voice your opinions to state and local governments.