Waterway and wetland permits: Ordinary High Water Mark
The Ordinary High Water Mark - what is it?
Under Wisconsin’s Constitution, lakes and rivers belong to everybody and DNR manages them for the benefit of all citizens. The state Supreme Court has ruled that the state owns title to lakebeds (not streambeds or flowed lands) and that the Ordinary High Water Mark (OHWM), establishes the boundary between public lakebed and private land.
In 1914, the Wisconsin Supreme Court defined the OHWM 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.”
Water marks are often at various elevations, but the most permanent and prevalent marks constitute the ordinary high water mark. The OHWM doesn’t change with temporary fluctuations in water levels, nor is it always at or near open water, as is the case with cattail marshes and bogs. The Supreme Court has ruled that the area between the water’s edge and the OHWM need not be navigable to be held in the public trust.
How it affects your property
With undeveloped waterfront in Wisconsin becoming scarce, properties once bypassed because they didn’t have the more desirable sand beach or cobble edge are now being sold and subdivided. These sites often have wetland-fringed shorelines or other features that make it less easy to identify where private property ends and public water begins. The Ordinary High Water Mark (OHWM)-- where the regular action of water against the bank leaves a distinct mark -- determines the extent of public water. This mark isn’t typically identified on surveys and may be difficult to see on some sites. As a result, some property owners have recently discovered that when the OHWM is identified, the land they thought was theirs is actually public lakebed.
Has DNR changed how it sets the Ordinary High Water Mark?
No. DNR staff and others determine the OHWM today in the same way as it was defined by the Wisconsin Supreme Court and other courts in decisions dating to the late 1800s. What’s changed is that OHWMs aren’t as easy to identify on many of the properties being developed today. In addition, many property surveys done in earlier decades used the water’s edge, not the OHWM, in setting boundaries.
How can my property’s OHWM not be even near open water?
The OHWM is not always at or even near open water, as cattail marshes and bogs demonstrate. The area between the water’s edge and the OHWM need not be navigable to be held in the public trust, numerous cases from the late 1800s to the 1980s say that lake or stream beds may be heavily vegetated even to the extent that an area of public water can’t be navigated. Wetlands (including those shown on the Wisconsin Wetland Inventory) and floodplains can occur both above and below the OHWM. Their boundaries are usually not the OHWM because they have different purposes and are defined differently.
Is DNR systematically reassessing OHWMs?
No. The OHWM determinations occur because waterfront property owners take actions that trigger the need for an ordinary high water mark. If you plan to build a house or an addition, you’ll need to know the Ordinary High Water Mark to meet county ordinances for building setbacks. DNR also sets OHWMs when reviewing applications for permits to grade or make other changes to the shoreline. At their request, DNR also helps counties set OHWMs for shoreland zoning.
How does DNR determine the OHWM at “complex” sites?
DNR uses several techniques for complex sites. When the OHWM can’t be identified at a particular site because the shoreline’s been disturbed, the DNR staffer may need to identify the mark 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 be complicated. The DNR evaluates lake mechanics and forces, wetland evolution and function, soil types and water level history. Complex OHWM determinations may need to be conducted by a trained expert and sometimes require surveying skills. The good news is that a minority of properties have shoreline features that make for a difficult OHWM determination.
The OHWM for my property conflicts with my deed. How does this impact taxes? Regulation?
The assessed value of a property - and the resulting tax bill - is based on the fair market value of the property. If acreage is found to change, the values of parcels will be 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 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 now be considered nonconforming and some other county zoning restrictions may now apply. Consult the zoning office or check local ordinances for details 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 Web site for information on placing piers or other in-water structures below the OHWM.
Regardless of bed ownership, the general public must follow the law to gain access to public waters legally. Adjacent property owners have exclusive use of dry or exposed lakebed below the OHWM. Such areas may be posted, but not fenced. If private land surrounds a land-locked lake, the general public must obtain the landowner’s permission to enter. The general public must gain access to a public stream or river or connected lake via a public access such as a public boat landing or a public highway that crosses the river or stream. Someone hunting or fishing on a lake or stream must keep their feet wet unless portaging a physical obstruction by the shortest possible route.
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. The law on this 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 Ordinary High Water Mark.
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 DNR supply assessors with maps to define lakebed property?
Lakebed lands have not been mapped, given the current state budget situation, it isn’t 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. DNR and the department of Revenue are working together to provide additional guidance to assessors for addressing imprecise boundaries along waterways.
For more information on the Ordinary High Water Mark (OHWM), please refer to the DNR Publication: