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Why restrict navigability?

Wisconsin Lakes opposes bill that would limit protections on some dammed lakes, restrict DNR from navigability determinations

By Wisconsin Lakes staff

As reported earlier by Wisconsin Lakes, AB599/SB506 would restrict the Wisconsin Dept. of Natural Resources (DNR) from determining an impoundment (a lake created by a dam) is a navigable water if the water being dammed was previously determined to be navigable, regardless of size or actual navigability of the lake, and the lake is part of an environmental restoration plan. In addition, the bill would exempt such impoundments from many water quality protections, including shoreland zoning, wetland zoning, stormwater management zoning, and construction site erosion control. AB 599 was introduced by Rep. Romaine Quinn (R-Rice Lake) and its companion bill SB506 by Sen. Terry Moulton (R-Chippewa Falls). Hearings for the each version of the bill will be heard by committees on Tuesday, November 28, with the Senate Committee on Sporting Heritage, Mining, and Forestry going first at 10am (in room 300 Southeast of the State Capitol in Madison), and the Assembly Committee on the Environment and Forestry taking it up at noon (Room 328 Northwest in the Capitol).

The bill would exempt from all of Chapter 30 of the Wisconsin statutes (with the exception of boating regulations), as well as shoreland zoning and the other regulations mentioned above, an “impoundment”, or lake created by the damming of a stream, if DNR had previously determined the section of stream being dammed was non-navigable, and the impoundment was part of the National Fish and Wildlife Service’s “Partners for Fish and Wildlife Habitat Development Agreement” or similar environmental restoration program. In addition, DNR would not be able to designate the impoundment as navigable unless all structures creating the impoundment were removed, returning the stream to its natural state, and a designation of navigability would still be appropriate.

While potentially running afoul of Wisconsin’s “Public Trust Doctrine”, a constitutional doctrine that says the waters of the state are to be managed for everyone’s benefit, the bill also fails to take into account a number of issues. For instance, does the restriction on a navigable determination and exemption from water quality protections apply if the dam that creates the impoundment was done so illegally in the first place? What if the waterbody is in a restoration program but violating its conditions? What if it is subsequently kicked out of a restoration program? What counts as a “similar” restoration program to the specifically named Fish & Wildlife Service program?

Perhaps most importantly, what happens when there are impacts to navigable waters downstream of an impoundment? While the headwaters of a stream may be non-navigable, do we really benefit if those headwaters are an unregulated, potentially polluted lake sending its filth downstream to navigable portions that may even include existing lakes?

And we haven’t even yet asked why this bill is needed in the first place.

Wisconsin Lakes believes this bill goes too far in restricting determinations of navigability, and is full of potential for unintended consequences that could impact existing navigable waters, and for seemingly no legitimate purpose. We urge it be rejected.

Wisconsin Lakes position: OPPOSED