Waterway Jurisdiction Determinations
Public Notice and Written Comments
The DNR has developed draft standard operating procedures for third parties to gather data to inform ordinary high water mark and navigability determinations established in s. NR 300.17, Wis. Adm. Code and to request the DNR provide confirmation to preliminary navigability or ordinary high water mark determinations performed by a third party in accordance with s. NR 300.17(c) or (d), Wis. Adm. Code.
- Draft Third Party Ordinary High Water Mark Determination SOP
- Draft Third Party Navigability Determination SOP
The DNR is inviting written comments on these proposed procedures. Please send comments to Sarah Szabo at the email contact below by the end of the business day on Friday, January 5, 2024.
Contact for Comments
2984 Shawano Ave.
Green Bay, WI 54313
Navigability and ordinary high water mark determinations on a waterway decide whether the DNR and local governments have jurisdiction over projects that may impact the waterway, including zoning setbacks, shoreline erosion control, pier placement, dredging, and other projects.
Navigability and Ordinary High Water Mark
A navigable waterway is defined through case law as any waterway that has a defined bed and bank, and upon which it is possible to float a canoe or small watercraft on a recurring basis.
The Ordinary High Water Mark (OHWM) is defined as the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristic.
The DNR Waterways Program, under the public trust doctrine and state statue, has jurisdiction over permitting for projects that may impact navigable waterways below the ordinary high water mark.
- See the Navigability factsheet to learn how to identify navigable waterways.
- See the OHWM Factsheet to learn how to locate the OWHM on a waterway.
Waterways and Shoreland Zoning
Shoreland zoning applies to projects located in proximity to navigable waterways. Local governments, including counties, cities, villages, and towns make navigability and ordinary high water mark determinations to implement their shoreland zoning ordinances, including for reviewing setback requirements.
For projects that may impact the shoreline above the OHWM, county or local shoreland zoning ordinance requirements may apply. Contact your local zoning office to determine if a local permit application is necessary.
Navigable Waterway Determination Program
The DNR has a Navigable Waterway Determination Program for third parties to assist with preliminary determinations. For third parties interested in completing a Navigable Waterway Determination for the DNR, see the SOP and data collection form below.
- Navigable Waterway Determination Program Guidance
- Navigable Waterway Determination data collection form (3500-139)
Previous DNR Determinations
Completed OHWM and navigability determinations are available on the DNR Surface Water Data Viewer map app. Zoom in to your property or the waterway on the map and click on the "Permits and Determinations" layer to see previous determinations.
Frequently Asked Questions
- What are the characteristics of a navigable waterway?
Generally, a waterway with defined bed and banks, an OHWM, and evidence of enough water present on a recurring basis to support navigation by the smallest recreational craft it is considered navigable.
- The stream doesn't have water in it all the time. How can it be considered navigable?
Navigable waterways do not need to be navigable at all times but only on a regularly recurring basis, such as during spring runoff periods. The public trust also applies to artificial navigable waters that are directly and inseparably connected with natural, navigable waters.
- I can drive my ATV through this stream in summer and fall. How can that be navigable?
If the stream has enough water to float a small watercraft on a reoccurring basis despite the presence of any downed trees, vegetation or other obstructions that may prevent navigation, the stream would be considered navigable. Additionally, for navigable streams, generally, no person may operate a motor vehicle in or on any navigable water or the exposed bed of a navigable water. For more information, please see s. 30.29, Wis. Stats.
- This is a wetland area with open water. How can that be navigable?
Waterways with defined bed and banks that hold enough water on a reoccurring basis to float a small recreational watercraft meet the definition of a navigable waterway. State regulations do not differentiate between a lake and a pond and even small wetland ponds with defined bed and banks can be navigable if there is enough open water to float a recreational watercraft.
- There are trees growing close to the channel that would impact navigation. Does that mean is it not navigable?
Obstructions in a waterway such as downed trees or dense vegetation along the bank can create a challenge to navigation for short reaches but do not change the underlying navigability of such a stream.
- There are areas where the channel diffuses into a wetland (or less commonly disappears underground. Does that mean it is not navigable?
Generally, if a waterway is considered to be navigable upstream of where it loses some of its defining navigable characteristics and emerges from the wetland complex eventually as a navigable waterway, the waterway through the wetland complex would also be considered navigable. Site specific characteristics determine the ultimate navigability status of the waterway.
- One of the farmers converted part of this area to a grassed waterway. Does that mean the rest of it is not navigable?
Generally, navigable waterways that have been manipulated are still considered navigable even when the manipulation may cause some of the defining navigability characteristics to be masked.
- I have a bed and banks but the slope seems too steep to be able to float a boat. Is my stream navigable?
Generally, if a waterway is considered to be navigable upstream of a steep section of stream channel where floating a recreational watercraft would be difficult, but the stream emerges from the steep section and flows into a navigable stream, the stream would be considered navigable. If the channel entering the steep slope section is not navigable, the stream would be considered navigable at the first location where navigability features are first identified. Site specific characteristics determine the ultimate navigability status of the waterway.
- There is a culvert across the stream that is too small to navigate through. Does that mean it is not navigable?
While obstructions (natural or artificial) in a waterway can create a challenge to navigation, they are not the single basis for defining navigability. Obstructions that are natural or artificial and create challenges to navigation or passage are common and do not change the basis of navigability.
- No one would ever canoe this area. Does that mean this is not navigable?
If the waterway has the characteristics of navigability, it is considered to be navigable and whether it is actively canoed, kayaked, or fished is not relevant.
- The only way that anyone can access this lake without trespassing is by a helicopter. Does that mean that it is not navigable?
If the waterway has the characteristics of navigability the waterway would be considered navigable whether or not the waterbody can be legally accessed by the general public.
- Someone said that they dug this lake/pond/river/creek. Does that mean that is it not navigable?
Waterways that are completely artificial and which do not connect with a navigable waterway are not considered to be navigable waterways. However, determining whether an artificial waterway is completely artificially created or whether it connects to a navigable waterway can be challenging to determine and often requires a detailed review of waterway history by a DNR Water Management Specialist prior to making a determination. If there are questions about the "artificial" status of a waterway, please contact a Waterways team member to discuss the specifics of the waterway.
- Is DNR systematically assessing OHWMs?
No. The DNR completes an OHWM determination when a permit application requires one, including for grading or changes to the shoreline. If you plan to build a house or an addition, you may need an OHWM determination to meet county ordinances for building setbacks. The DNR also assists counties with OHWM determinations for shoreland zoning purposes.
- How does DNR determine the OHWM at complex sites?
DNR uses several techniques for complex sites. When the OHWM cannot be determined at a site because of shoreline disturbance, the DNR may need to identify the OHWM at another location on the water body and transfer the elevation level to the site in question. To determine the OHWM elevation at a shoreline with a wetland fringe or bog can also be complicated. The DNR evaluates lake mechanics and forces, wetland evolution and function, soil types and water level history.
- The OHWM for my property conflicts with my deed. How does this impact taxes and regulation?
The assessed value of a property and the resulting tax bill are based on the fair market value of the property. If acreage is found to change, the values of parcels are reduced by the marginal contribution of the land removed to the total value of the property. The value change depends on supply and demand for waterfront land and the attributes of the property in question. Property owners who find that the acreage change is large and believe that their land is now not as valuable as other similar lakefront are encouraged to discuss the situation with their local assessor. Further background is available from the Department of Revenue.
Some structures may be considered nonconforming and other county zoning restrictions may apply. Consult your local zoning office and be aware that the state is revising its statewide standards for shoreline development to give property owners more flexibility in the remodeling and repairs that can undertake on structures that don't meet current county setbacks. Visit the DNR Waterways page for information on placing piers or other in-water structures below the OHWM.
- Does an OHWM determination constitute a taking of my land?
No taking of land is occurring. The state has held title to the beds of natural navigable lakes since statehood when Wisconsin’s territorial leaders were authorized to dispose of lands under navigable waters that were previously under federal control. This law has been reaffirmed in numerous published decisions of the Wisconsin Supreme Court and other courts and should be readily understood by the attorneys serving title companies and property buyers and sellers. Typically, title companies include exceptions in title commitments for title to or rights of the public in and to any portion of the property lying below the OHWM.
- Will there be a legal transfer of ownership? Will I be compensated?
Since the ownership of the lakebed trust property could not have been legally transferred from the state, no transfer to the state can occur, nor has any property been taken from private landowners for which compensation is due.
- Can the DNR supply assessors with maps to define lakebed property?
Lakebed lands have not been mapped and it is not likely that the state will be able to map lakebeds. Lakebed mapping is not essential to the state's role as trustee of public waters. Waterfront landowners have been complying for decades with lake and stream protections using OHWM determinations made on an as-needed basis.