Wisconsin Navigability Rights Reduced
By: Jason Robertson
SUMMARYThe purpose of this memorandum is to document the 2001 change to the navigability law in Wisconsin. In summary, the change to Wisconsin Statue §30.134should have no impact on a person's right to portage. However, the right to scout a rapid has likely been reduced to the "keep your feet wet" approach.
DISCUSSIONIn 2001, the governor of Wisconsin changed the text of Wisconsin Statue §30.134. However, this was not done through the normal legislative means. It was not an amendment to the state constitution or otherwise standardly enacted law. Wisconsin has a rather interesting 'budget' process; the governor can include, as part of the annual budget, items which would seem to have no direct bearing on budget- items which otherwise would seem to need full discussion and vote by legislative bodies. While the legislative bodies may be called upon to approve the budget, the items thus included are not, as a result, part of the 'normal' body of law. American Whitewater volunteer Rob Smage had a discussion with a legal counsel for the state DNR who said that, as a result of the change, it was his opinion that in order to be legal, one would have to "keep your feet wet" when scouting or portaging or else they would be trespassing and could be subject to prosecution.
The text of the statute is included in this document below.
For a copy of the "budget" changing the statute, see www.legis.state.wi.us/2001/data/acts/01Act16.pdf , page 247, Section 1255h and 1255j.
For a copy of the old statute, see www.legis.state.wi.us/1999/data/acts/99Act9.pdf, page 200, section 793t.
The prior law, in effect from 1999 to August 31, 2001, allowed people using Wisconsin's rivers and streams to have access to the exposed shoreline up to the ordinary high water mark at any time for water related recreational activities. This would have included swimming, fishing, boating, picnicking, sunbathing, and, presumably, many other activities.
The statute was amended to allow access to private riparian land "only if it is necessary to exit the body of water to bypass an obstruction." According to the Wisconsin DNR website (see www.dnr.state.wi.us/org/water/fhp/fish/faq/access.HTM ), obstructions could consist of trees or rocks, shallow water for boaters or deep water for wading trout fishermen. The bypass can involve areas up to the ordinary high water mark and should be by the shortest possible route. Also, the DNR recommends that, when using public waters, the general rule-of-thumb is to "keep your feet wet" to avoid trespassing.
CONCLUSIONThis change should have no impact on a person's right to portage. However, the right to scout a rapid has likely been reduced to the "keep your feet wet" approach. Scouting would likely be perceived as a "water-related recreational activity"; thus, while being allowed under the old law, the "budgetary change" has likely removed this right. The law has been changed to allow access to private land "only if it is necessary to exit the body of water to bypass an obstruction." Therefore, since scouting is not technically "bypassing an obstruction," a person scouting a rapid in Wisconsin would likely be found guilty of trespassing if the issue arose.
CHAPTER 30. NAVIGABLE WATERS, HARBORS AND NAVIGATION
SUBCHAPTER II. NAVIGABLE WATERS AND NAVIGATION IN GENERAL
30.134. Use of exposed shore areas along streams
(1) Definitions. In this section:
(a) "Artificial ditch" means a ditch, channel, canal or other stream of water that has no prior history as a stream.
(b) "Exposed shore area" means the area of the bed of a navigable body of water that is between the ordinary high-water mark and the water's edge.
(c) "Highway" has the meaning given in s. 340.01(22).
(d) "Riparian" means the owner, lessee or occupant of land that abuts a navigable body of water.
(2) Authorization. Members of the public may use any exposed shore area of a stream without the permission of the riparian only if it is necessary to exit the body of water to bypass an obstruction.
(3) Restrictions; members of public. (a) In using an exposed shore area of a stream, as authorized under sub. (2), a member of the public may not enter the exposed shore area except from the water, from a point of public access on the stream, or with the permission of the riparian.
(c) Use of an exposed shore area of a stream by members of the public does not grant an easement or other right to the exposed shore area that is greater than the right granted to the public under this section.
(4) Restrictions; riparians; others. (a) No riparian may prohibit a member of the public from using, as authorized under this section, an exposed shore area of a stream.
(b) No riparian may charge a fee for the use, as authorized under this section, of an exposed shore area of a stream.
(c) No person may obstruct a highway with the intention to impede or prohibit access by the public to an exposed shore area of a stream.
(5) Exceptions. The right granted to the public under this section to use an exposed shore area of a stream does not apply to any of the following:
(a) An exposed shore area of an impoundment on a stream.
(b) Any artificial ditch.
(c) Any location on a stream where there is no surface water flowing in the stream.
Corey McAfee (author and AW Intern) at 828-252-6482 or firstname.lastname@example.org
Rob Smage (AW Streamkeeper and WI resident) at RacIVRnr@aol.com