Boundary Lines – Wisconsin Supreme Court Re-establishes Bright Line Between Private and Public Rights. September 2013 Wisconsin Real Estate Magazine.
In this article, a case about water levels on Lake Koshkonong near Janesville is examined. This shallow lake was formed by a dam on the Rock River that was repaired in 2002. The DNR lowered water levels by a foot to protect wetlands located beneath the dam. However, the lowered water levels also resulted in increased shorelines making it more difficult to access piers and to use the lake for boating purposes.
In 2003, property owners and businesses petitioned the DNR to raise the water levels contending that lowering water levels led to severe restrictions of recreational boating as well as a negative impact on shore erosion, plants, and animal species.
The Supreme Court found that the DNR inappropriately relied on the Public Trust Doctrine for its authority to protect land above the OHWM. This case established a bright-line test for when the Public Trust Doctrine applies and when it does not, and provides waterfront property owners with greater certainty about which activities near waterways are allowed. The said that the DNR and other governmental entities must have some authorization from the legislature to regulate activities above the OHWM.
What are your thoughts about this ruling?