Can the public walk along shoreline that is below the ordinary high water mark (OHWM) but above the water’s edge?
The public has the right to canoe, fish, ice skate, snowmobile, wade and otherwise enjoy Wisconsin’s navigable waters as long as they “keep their feet wet” to avoid trespassing and as long as they can access the water legally from a public road or boat landing.
People using Wisconsin waterways generally must follow the “keep your feet wet” rule created by the Wisconsin Supreme Court. Members of the public may use any exposed shore area of a stream or river without the permission of the riparian landowner only if it is necessary to exit the body of water to bypass an obstruction. Obstructions may include trees or rocks, shallow water for boaters or deep water for wading trout fishers. The bypass can involve areas up to the ordinary high water mark (OHWM), the point on the bank or shore where the water is present often enough to leave a distinct wear mark indicated by erosion or destruction of or change in vegetation.
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 landowner. Using the exposed shoreline for purposes such as picnics and sunbathing is not allowed.
The right to use the exposed shoreline applies only to rivers and streams. On lakes, users must be in the water and have no right to use the exposed shoreline without the owner’s consent. For additional information,
visit www.dnr.wi.gov/org/water/fhp/fish/faq/access.htm.
A seller’s property has 122 feet of lake frontage. The seller wants to retain a 30-foot water access easement across the property for his use, and believes that his family later would be able to sell that easement to a buyer. Can a lake access easement be sold?
A. A properly drafted lake access easement may be sold, as long as the easement does not include the right to put in a pier or dock. Wis. Stat. § 30.133(1) provides, “no owner of riparian land that abuts a navigable water may convey, by easement or by a similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water. This right to cross the land may not include the right to place any structure or material in the navigable water.” The only riparian right that may be conveyed by easement is the right to access the water.
When completing item C.11 on the real estate condition report, how does a seller determine whether property is in a floodplain, wetlands or a shoreland zoning area?
Floodplains: A floodplain is land that has been or may be covered by floodwater during the regional or 100-year flood. Floodplains are typically found near rivers and lakes, but also include low-lying areas and depressions where water naturally collects when it rains. Counties, cities and villages closely regulate development within flood-prone areas in accordance with Wisconsin’s minimum floodplain ordinance standards. Under the National Flood Insurance Act, lenders must require borrowers with property within Special Flood Hazard Areas to purchase and maintain flood insurance as a condition of receiving a federally regulated mortgage loan.
To see if a property is in a floodplain, a seller can look up a property address or location online at FEMA’s Web site,
www.fema.gov/individual/home.shtm, view maps from the Department of Natural Resources (DNR) Web site at
www.dnr.state.wi.us/org/water/wm/dsfm/flood/mapping.htm, or see DNR floodplain information at www.dnr.state.wi.us/org/water/wm/dsfm/flood/title.htm.
Wetlands: A wetland is defined in Wis. Stat. § 23.32(1) as, “an area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation, and which has soils indicative of wet conditions.” Stereotypical wetlands have cattails, water lilies and wet soil. However, not all wetlands are wet all year round. Wetlands include ponds that dry out during the summer and even some forests and meadows. The DNR’s Wisconsin Wetlands Inventory program classifies and maps wetlands that are two acres and larger online at dnr.wi.gov/org/water/fhp/wetlands/mapping.shtml. For additional wetlands information, see dnr.wi.gov/org/water/fhp/wetlands/index.shtml.
Shoreland zoning: Shoreland zoning rules apply to unincorporated land that is within 1,000 feet of a navigable lake or pond, or within 300 feet of a navigable stream or the landward side of a floodplain, whichever is greater. Counties are required to adopt shoreland zoning ordinances that meet or exceed the statewide minimum standards. The seller may contact the county or local zoning office for information.