Special Legislation for one Landowner is Bad State Policy
Update on SB 506 / AB 599
As you know, streams and rivers constantly change, so it is critical for the DNR to have the authority to change navigability determinations when appropriate. SB 506 and AB 599 would limit the DNR’s ability to change navigability determinations on waters impounded behind a dam constructed on a stream (or portion of a stream) that was formerly determined to be non-navigable (unable to float a recreational boat on a recurring basis).
Implications if this bill becomes law:
- Special legislation for one situation has the potential to impact waters across the state
- DNR’s authority to change navigability determinations is limited
- Dam construction is incentivized
Let’s explore each of these implications…
Throughout the November 28th hearing it was very clear that this bill was written because of one situation in Chippewa County.
Here’s an overview:
- A landowner, Leland Christenson, has a dam on a non-navigable stream where he has created a 90-acre private pond.
- In 2008 the DNR determined that the pond was not navigable. The landowner worked with the Fish and Wildlife Service’s Partners for Fish and Wildlife Habitat Program to complete restoration work.
- This is a large project with significant earth moving. Google Earth images show what the landscape looked like in 2008, and then in 2015 after changes have been implemented by the landowner.
- In the process of this work, Mr. Christenson asked to swap land with Chippewa County twice. In 2016, the DNR was consulted as part of the land swap discussion. During this process the DNR raised questions about the navigability of the waters on Mr. Christenson’s land. At this time, the DNR has not changed the navigability determination on Mr. Christenson’s land. This bill is a preemptive strike to allow him to keep his navigability determination.
- During the hearing Mr. Christenson’s attorney explained that the goal is to “keep private waters private.” If the pond is determined to be navigable, then public access to the water is allowed. As anglers know well, the law requires that you keep your “feet wet” and not trespass on private land when you access public waters.
Veterans and disabled people have been invited to hunt and fish from this property. A fully accessible lodge is being built that will include an elevator and easy access to the water for fishing. We understand the value of this work. However, good intentions do not exempt this situation from following Wisconsin’s water laws.
It is also important to note that if the pond were to be determined navigable, nothing changes with Mr. Christenson’s private land. Hunting and fishing from his property is still private. No one can trespass on his land to access the water. The programs on his property can still take place.
Navigability Determinations & Public Waters Becoming Privatized
Wisconsin’s Public Trust Doctrine states that all navigable waters in the state are “common highways and forever free,” and held in trust by the Department of Natural Resources, for the people of Wisconsin. If DNR’s authority to change navigability determinations are limited, navigable waters may not be protected as our Constitution requires.
Streams are dynamic systems, they are always changing. They are impacted by drought, floods and changes in the landscape. It’s important for DNR to retain its constitutionally-mandated authority over the navigable waters of the state and be able to change navigability declarations when appropriate.
If a landowner significantly changes a water body from non-navigable to navigable, under this bill, the DNR would not be able to change the determination to navigable. That would leave this navigable water without the required protections under the Public Trust Doctrine. This includes keeping navigable water private instead of allowing public access. To us, this a privatization of public waters.
These bills require a dam to be placed on a non-navigable stream in order for the navigability determination restriction to take place. The Fish and Wildlife Service’s Partners for Fish and Wildlife Habitat Program allows for the placement of small dams to restore wetlands, but it is not a requirement. In fact the program description says, “High priority should be given to projects that restore stream courses, restore riparian buffers, and remove constructed barriers.” Simply, ecological restoration can take place without placing a dam on a stream.
What’s next and what can you do?
We expect the Senate Committee on Sporting Heritage, Mining and Forestry and Assembly Committee on the Environment and Forest to meet again in December to vote on the bill.
Please contact the members of the committees and your own legislators today to express your concerns. Use the email links below to contact the members of the committees. Emphasize these points:
- Committees should halt SB 506 and AB 599 and ask the DNR to find a solution.
- This issue should not be resolved with statewide legislation.
- This is a regulatory issue for one situation that has several methods the DNR and the landowner can use to address the challenges.
You can also let legislators know that this bill is bad because it:
- Limits the DNR’s authority to change navigability determinations,
- Incentivizes dam construction, and,
- Provides special legislation for one situation that has the potential to impact waters across the state
We will continue to follow this legislation and keep your informed of any developments and actions you can take. Thanks for following along on this issue!
Assembly Committee on Environment and Forestry: