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    Wisconsin Lawyer
    April 13, 2022

    Water, Water Everywhere:
    50 Years of the Clean Water Act and Beyond

    Wisconsin has the third highest number of natural lakes of U.S. states but keeping these and other water resources clean and equitably available for all users is a challenge that increases by the day. Learn here about the basics of Wisconsin's water laws and the issues that are catalysts for disputes about water use.

    Paul G. Kent

    downtown Milwaukee riverfront

    This year (2022) marks the 50th anniversary of one of the most successful environmental laws of the modern era – the federal Clean Water Act of 1972.1 The progress has been remarkable. The most cited example for passage of the act was the Cuyahoga River, which at the time regularly caught fire. Today it supports a vibrant fishery. The progress here in Wisconsin is no less amazing. When I grew up in Milwaukee in the 1960s, the Milwaukee River had a rancid odor and worse color. Few wanted to spend time near it. By contrast, a few years ago, I watched my wife compete in the Milwaukee River Challenge, a rowing regatta attracting hundreds of competitors and thousands of spectators along a revitalized Milwaukee River. Such stories have been repeated statewide and nationwide.

    This anniversary is one reason the State Bar of Wisconsin, through Wisconsin Lawyer articles and other forums, is focusing on water-law topics in 2022. However, as important as the Clean Water Act is, it is just a small part of a much bigger picture of water law in Wisconsin. Water and water law have shaped the state since territorial days, and new challenges well beyond the scope of the Clean Water Act will dominate water-law topics in the next decades.

    This article provides some historical context and outlines water-law challenges that will be discussed in greater detail in coming issues of this publication.

    Water Quality – Before and After the Clean Water Act

    Early State Regulation of Water. Long before the enactment of the Clean Water Act, Wisconsin recognized that there were limits to the capacity of the state’s abundant waters to carry waste. One of the first legislative enactments to control water pollution in Wisconsin came in 1865 and restricted the placement of slaughterhouses and their waste on the banks of rivers and streams.2 In 1895, the Wisconsin Legislature expanded this restriction and prohibited the discharge of “substances detrimental to fish life.”3

    Paul G. Kent Paul G. Kent, U.W. 1981, practices with Stafford Rosenbaum LLP, Madison, in administrative and local government law and environmental law. He has taught environmental law and practice at U.W. Law School since 1989. He is a member of the State Bar of Wisconsin’s Administrative & Local Government Law Section, Environmental Law Section, and Senior Lawyers Division. He is the author of Wisconsin Water Law in the 21st Century, available at Get to know the author: Check out Q&A below.

    Wisconsin created the State Board of Health in 1876, and in 1905, it was granted specific authority to supervise municipal sewer and water systems.4 This authority included review of plans and specifications for new sewer and water systems, a process now known as the facility-planning process.5 The Board of Health’s authority was expanded in 1919 to include the “general supervision and control over the waters of the state insofar as their sanitary and physical condition affects the public health or comfort.”6 In 1927, following some large fish kills, the Board of Health’s authority was expanded again by the creation of a Committee on Water Pollution.7 The 1927 law focused on control of industrial pollution and gave the committee general and specific order authority over municipal and industrial discharges of pollution.8

    Among the committee’s principal tools were drainage basin reports, which described the basic water resources and sources of pollution for each of 28 basins. After hearings were held on the basin reports, the committee issued orders to specific industries or municipalities to achieve certain treatment efficiencies and, if necessary, prescribe certain treatment systems. This system of orders was converted to permits when the Clean Water Act was enacted.

    Federal Clean Water Act. By the 1960s it became clear that more needed to be done to improve the quality of the nation’s waters, and eventually Congress passed the Clean Water Act of 1972. It was successful for several reasons. First, it provided the most significant source of federal funding for municipal wastewater treatment facilities since Depression-era public works projects. Second, it established a pragmatic regulatory permit system. Wastewater discharge permits were required from industrial and municipal sources discharging pollutants from discrete points (point sources) to waterways. Those permits had limits based on what technology could achieve. Only later, in 1987, was the Act amended to require those sources to meet water-quality standards set by the states, based on what was needed to support fish and aquatic life and other designated uses.9 Third, it was a program with national standards and funding but state-based administration. Wisconsin was able to build on and adapt its existing regulatory programs to conform with the new requirements. Today, the Wisconsin Department of Natural Resources (DNR) issues about 1,100 individual permits annually under this program.

    However, the pragmatic limits that made the program successful now present challenges. Today the most significant water-quality concerns arise from the existence of runoff from agricultural and urban areas that are not from discrete points. These “nonpoint sources” cannot be easily treated or regulated through individual permits. At the same time, even point sources are facing the challenge of complex contaminants that cannot be practically treated. The recent concern over PFAS (per-and polyfluoroalkyl substances) compounds is one example, but there are other emerging contaminants of concern, such as pharmaceutical and personal-care products.

    Addressing nonpoint sources and emerging contaminants requires a more creative approach – different kinds of treatment, financing, and regulation – to control pollutants before they enter waterways and water systems. It requires farmers, urban residents, and businesses to change behaviors and practices. Developing political consensus on changes to amend the Clean Water Act seems unlikely, in contrast to the bipartisan Congressional effort that passed the Clean Water Act of 1972 and then overrode a presidential veto. As a result, state and local governments will be important players in crafting new solutions. These challenges will be the subject of an article later this year.

    Series Debut on Water Law

    By Joe Forward

    Joe ForwardWisconsin has the third highest number of natural lakes of U.S. states but keeping these and other water resources clean and equitably available for all users is a challenge that increases by the day. This issue introduces a series of articles focused on Wisconsin water-law concerns.

    This year (2022) marks the 50th anniversary of one of the most successful environmental laws of the modern era – the federal Clean Water Act of 1972. While the progress has been remarkable, concerns remain. Water and water law have shaped Wisconsin since territorial days, and new challenges well beyond the scope of the Clean Water Act will dominate water-law topics in the next decades. This anniversary is one reason the State Bar of Wisconsin Communications Committee, through Wisconsin Lawyer articles and other forums, is focusing on water-law topics in 2022.

    Water Law Series logo

    Paul Kent, an environmental lawyer, helped us frame the legal issues we will cover and kicks off the Water Law Series with an article that provides some historical context as well as a look forward. Future articles will discuss agricultural and urban-area runoff, emerging and complex contaminants, high-capacity wells and managing groundwater withdrawal, and surface water and drainage.

    Other articles will look at the public trust doctrine and navigable waters; the extent of riparian rights and the balance between public and private rights and shoreline development; the Great Lakes Compact; and how drought in western states might affect water use and management in Wisconsin and elsewhere. And we’ll include tips to help you conduct research and locate sources on water-law issues.

    We hope you will enjoy learning more about water law in Wisconsin.

    Joe Forward, Saint Louis Univ. School of Law 2010, is communications director for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Quantity – The Problem of Too Much Water

    The fact that Wisconsin is a water-rich state is not always a blessing. In fact, sometimes there has been too much water. Nothing better characterizes this than the “common-enemy doctrine.” This common-law doctrine, which existed until the 1970s, viewed surface water as a common enemy that landowners could drain or direct with impunity.10

    Historically, overabundance of water has led to two water-law developments that still present challenges for today. One of those issues is managing surface water runoff – a problem now intensified by urbanization and climate change. The other is managing water withdrawal and use from both groundwater and surface water. Unlike arid western states that carefully regulated water resources, regulating water use was not necessary in Wisconsin for most of its history. That is beginning to change, but developing a comprehensive and integrated regulatory system will be a significant challenge.

    The net result is a mosaic of disparate regulations that depend on the water source (surface water or groundwater), the intended use of the water (irrigation or public water supply), and the type of resource affected (public water supply, springs, high-quality surface waters, navigable waters, or Great Lakes waters) or the amount of the withdrawal.

    Surface Water and Drainage. Given the common-enemy doctrine and its rationale, it is not surprising that among the first territorial laws of Wisconsin were provisions authorizing drainage. The first drainage law, dating from 1839, allowed people who arbitrated fence disputes to also determine the location of drainage ditches.11 Other drainage laws followed.12

    These efforts fulfilled their purpose by the standards of the day. One result is that nearly half of the 10 million acres of wetlands that existed at statehood have been drained or filled.13 By the late 1980s, there was a growing recognition of the value of wetlands, and federal and state protection soon followed.14 Within the past few years, vigorous wetland protection has had a goal of no net loss of wetlands in Wisconsin.

    The problem of managing surface water runoff has not, however, gone away. In fact, it has become more challenging. Increased impervious surfaces from urban development and increased storm intensity from climate change have resulted in new concerns about flooding. Higher intensity and more frequent storms damage urban property, farmland, roads, and other infrastructure. At the same time, there is a need to manage this runoff for storm water quality as well as quantity. Nutrients from agricultural runoff and salt and other contaminants from urban runoff now significantly impair water quality.

    Effectively managing storm water requires a comprehensive approach. Storm water must be considered in the context of the watershed as a whole, managed for both quantity and quality issues, and integrated with state wetland policy. This will be the subject of a separate article later this year.

    Groundwater and Surface Water Use. When it comes to water use – for potable water supply or agricultural and industrial use – having too much water has led to regulatory complacency. The laws governing groundwater and surface water withdrawal arose on a largely piecemeal basis to respond to specific and limited issues, and they remain fragmented and incomplete today.

    The common-law rule for groundwater withdrawal was a doctrine parallel to the common-enemy doctrine. A landowner could consume groundwater “with impunity” and even had the right to withdraw groundwater maliciously to deprive a neighbor of the groundwater.15 This rule existed in Wisconsin until 1974, when the Wisconsin Supreme Court imposed a reasonable-use standard.16

    The first statute regulating groundwater withdrawals from high-capacity wells (wells that can pump more than 100,000 gallons per day) was not enacted until 1945. Even then, it was limited only to protecting against adverse effects on existing public water supplies.17 In 1985, the statute was broadened to regulate withdrawals with a water loss of more than 2 million gallons per day.18 In 2003, the statute was broadened again to cover certain wells between the regulatory threshold of 100,000 gallons per day and a water loss of 2 million gallons per day.19 In 2011, the Wisconsin Supreme Court attempted to fill some gaps in the high-capacity well statute by holding that the general authority of the DNR over waters of the state and the public trust doctrine gave the DNR authority to consider the impact of high-capacity wells on navigable waters.20 To this day, gaps and limitations remain in the statutory sections regulating high-capacity wells.

    The regulation of surface water withdrawal is even less integrated. The primary statute regulating surface water withdrawal is Wis. Stat. section 30.18, which was enacted in 1935 to respond to the drought years of 1930-1934.21 The statute addresses withdrawals from streams if the water is used for irrigation and stream-flow augmentation. It does not apply to water withdrawal for other uses such as potable water.22 In 1985, surface water withdrawal resulting in a water loss of 2 million gallons per day was regulated.23 And in 2008, Wisconsin adopted the Great Lakes Compact, which restricted diversions of water outside the Great Lakes Basin and imposed certain restrictions on water use within the Basin.24

    The net result of these water-use statutes is a mosaic of disparate regulations that depend on the water source (surface water or groundwater), the intended use of the water (irrigation or public water supply), and the type of resource affected (public water supply, springs, high-quality surface waters, navigable waters, or Great Lakes waters) or the amount of the withdrawal. Different standards apply to each category. It is not an integrated system, and gaps remain.

    Unfortunately, groundwater is not an unlimited resource. Large-scale agricultural withdrawals, especially in the central part of Wisconsin, have affected private wells and surface water. Large-scale municipal pumping has drawn down aquifers and caused increased levels of contaminants such as radium and arsenic. One such example has been the recent approval to allow the city of Waukesha to use Lake Michigan water rather than groundwater for its public water supply.25 Effectively managing water withdrawal and water use in a more integrated fashion will be the subject of a separate article later this year.

    Managing the Navigable Waters and Their Shorelines for the Public

    One of the bedrock principles of Wisconsin water law is the public trust doctrine. In simplest terms, it is the concept that the navigable waters of the state are to be held in trust for its citizens. This important principle was part of the Northwest Ordinance and incorporated into the Wisconsin Constitution:

    “The River Mississippi and the navigable waters leading into the Mississippi and the St. Lawrence and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants to the state as to the citizens of the United States without any tax, input, or duty therefore.”26

    This concept that the navigable waters “shall be common highways” emphasized the commercial purpose of waters at statehood. This is also reflected in many of the earliest laws of the state, such as ones that facilitated floating saw logs to market, harnessing surface waters for mills, and ensuring bridges and harbors facilitated commercial shipping. Some of these laws were the following:

    • The Mill Dam Act of 1840 to promote agricultural development.27 In 1867, the Wisconsin Legislature created a law modeled after the Mill Dam Act to encourage the development of cranberry bogs.

    • The laws governing “rivers and floats” in the late 1800s to protect the logging industry.28

    • The Water Power Acts in 1911-1915 to allow for hydroelectric dams.29

    Beginning in the 1900s, case law recognized that the concept of public interest also encompasses recreational uses, even as certain historic commercial uses have waned. As one court noted, “Although the public trust doctrine originally existed to protect commercial navigation, it has been expansively interpreted to safeguard the public’s use of navigable waters for purely recreational purposes such as boating, swimming, fishing, hunting, recreation, and to preserve scenic beauty.”30

    The broadened scope of public trust interests paralleled an evolution that broadened the scope of the term “navigable waters.” Today, the term includes lakes and streams with water sufficient to float a kayak or similar recreational watercraft.31

    The evolution of the use of navigable waters and associated shorelines from more industrial and commercial uses to more recreational uses has resulted in two interrelated challenges. First, many of the industrial and commercial activities authorized in early statehood affected the location of the boundaries of navigable water shorelines. This is presenting challenges for the redevelopment of shorelines, particularly in urban areas. Second, the increasing demand for recreational waterfront properties, particularly in rural areas, has challenged the ability to protect waters without unreasonable interference with property rights.

    Municipal water supply wastewater treatment and reuse are increasingly crucial aspects of managing water resources.

    Historic Fill and Shoreline Redevelopment. In addition to ensuring public use of the navigable waters, the public trust doctrine has been interpreted to mean that title to natural lakebeds existing at statehood, including those in the Great Lakes, is held by the state.32 Nevertheless, when industrial and commercial uses of navigable waters predominated in early statehood, various dredging or filling activities resulted in changes to shorelines, particularly of lakes. Examples include fill from logging mill waste, fill to create coal docks and other large wharfs along lakefronts, materials from navigational dredging, and solids from industrial pollutants. Sometimes such fill was authorized by permit, a lakebed grant, or a submerged land lease.33 But often, especially in the 1800s and early 1900s, it just happened.

    One result is that there are now significant areas of fill into the Great Lakes and some inland lakes that have been treated and used for decades as private land. A number of cases hold that changes to the lake shorelines inure to the benefit of the owner of the adjacent land under the common-law doctrines of accretion and reliction.34

    However, within recent years there have been several situations in which the owners of historic lakebed lands who have sought to redevelop those properties have been met with objections by those claiming that because the land was once lakebed it belongs to the state and cannot be redeveloped for any private purpose. Waterfront property in urban areas is some of the most valuable property in Wisconsin and other states. How do those waterfront properties get redeveloped and used for commercial, recreational, and public uses desired today? There was proposed legislation in the most recent session to address some of these areas.35 These issues implicate questions under the public trust doctrine and concepts of riparian rights and will be the subject of a separate article later this year.

    Recreational Shoreline Development

    The evolution of water law in Wisconsin has resulted in several challenges to recreational shoreline development in more rural areas as well. One challenge is the balance between public interests in navigable waters and private property rights of riparian owners. Another is defining the scope of riparian interests in the waters.

    By the 1960s, shorelines in Wisconsin were being developed at an increasingly rapid rate. This provided a significant regulatory challenge. Although the state has authority to regulate the waters of the state, land is often privately owned and is regulated through local zoning. The solution to balancing these interests was a system of shoreland zoning to protect the navigable waters and the surrounding shorelines. The law provided for local zoning in rural unincorporated areas based on state standards and supervised by the state.36

    The law effectively regulated shoreland development. However, increased regulation of these properties led to concern over property rights that resulted in major changes in shoreland zoning and DNR regulations in the 2000s and 2010s.37 Similar issues were raised with respect to DNR regulation of piers, boathouses, and other structures in navigable water, resulting in many regulatory changes in the early 2000s. Concerns remain about the appropriate balance between public and private interests regarding recreational properties.

    The history of water development also has ongoing implications for the nature and extent of riparian rights. Flowages (or impoundments) are bodies of water created by dams. Thousands of flowages, created during the logging and waterpower days, look and function as lakes. But the beds of these flowages are treated as rivers, not as lakes – the bed is owned by the riparian owner and not by the state. This seems simple enough but it has resulted in recent case law and legislation on the extent of riparian rights on these flowages.38

    Water and water law have shaped the development of the state since territorial days, but water law issues will become even more critical in the coming decades.

    These issues become of heightened concern when the dam creating the flowage is removed. Many smaller impoundments resulted from mill dams that were placed on rivers and streams in early statehood. Now many of those dams are old and need to be repaired or removed, which can raise questions, such as what are the rights of the property owners who own land around those flowages (often it is unclear whether the dam owner owned the land under the bed in fee or whether the dam owner merely acquired a flowage easement) and what rights property owners have to maintain the water in the flowages. Wisconsin Statutes section 31.185, part of the chapter that governs dams, requires a dam owner to obtain a permit to abandon, remove, or alter a dam. This permit requirement allows time for other people to acquire a dam and maintain its flowage, but acquiring and maintaining a dam is itself complicated and expensive.

    The extent of riparian rights and the balance between public and private rights will continue to evolve as interest in recreational properties continues. These issues will be the subject of a separate article later this year.

    Water and Public Infrastructure

    For people who live in urban areas, clean water for drinking and for the environment is the responsibility of municipal utilities. Treatment and reuse of municipal-water-supply wastewater are increasingly crucial aspects of managing water resources. Major public funding occurred in the 1930s through Works Progress Administration projects and again in the 1970s with the Clean Water Act. This infrastructure is aging at the same time the service areas are expanding. While some additional infrastructure funds were made available in 2022, utilities will continue to face increasing challenges in the years ahead.

    In addition to serving larger urban areas, public utilities face a series of increased demands to address contamination dangers, such as lead service pipes in drinking-water systems, nutrients in wastewater systems, and emerging contaminants such as PFAS in both water and wastewater utilities. As noted above, these contaminants are difficult to treat and require more community-based approaches to pollution control. There is a growing need for a more integrated “one water” approach to municipal water services.

    A related challenge is basic funding. Aging infrastructure, new service areas, and new treatment requirements all require significant investment. These demands result in increased service charges. There are emerging environmental justice issues associated with increased user charges and the needs of underserved communities. These issues will be addressed in State Bar forums later this year as well.

    To date, water law has developed in a piecemeal fashion over time to address specific resource issues as they have arisen. This is understandable, but Wisconsinites will need to think more holistically about water from a watershed and hydrologic cycle perspective and to develop more integrated water law policies.


    Water and water law have shaped Wisconsin’s development since territorial days, but water-law issues will become even more critical in the coming decades. The effects of climate change, continued development pressures in urban areas, and greater intensity of agricultural practices are among the global trends that will be affecting water and water use. To date, water law has developed in a piecemeal fashion over time to address specific resource issues as they have arisen. This is understandable, but Wisconsinites will need to think more holistically about water from a watershed and hydrologic cycle perspective and to develop more integrated water-law policies.

    Meet Our Contributors

    How did you become interested in water law as a focus of your practice?

    Paul G. KentI have always been interested in the natural sciences. As a kid I collected rocks, explored local ponds, and had my own “science lab” in my basement. Ironically, during one of the years I was on the high school debate team, the question was whether Congress should adopt a federal clean water act. I then came to U.W.-Madison to major in biology. When I discovered that my lack of aptitude for math was going to hinder a science career, I switched to political science and environmental policy. After undergraduate and graduate degrees, I looked to law school to provide me a specific skill set from which to do environmental policy.

    Once I began practicing, several opportunities presented themselves that allowed me to focus on water-law issues, including the chance to write a book on water law for U.W. Extension in 1994. I have continued to be drawn to water issues because despite having a long history in this state, there are still a lot of unresolved and emerging water-law issues that make the practice engaging. Over the years, I have enjoyed working not only with a collegial group of environmental lawyers, but also a number of environmental engineers, hydrogeologists, and scientists who apparently have the math skills I lacked.

    Paul G. Kent, Stafford Rosenbaum LLP, Madison

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email Check out our writing and submission guidelines.


    1 Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified at scattered sections of 33 U.S.C.).

    2 1862 Wis. Laws, ch. 273.

    3 1885 Wis. Laws, ch. 221 § 18; see also 1905 Wis. Laws, ch. 489 amending section 4560d(10) and 1915 Wis. Laws, ch. 594 § 41. This section was recodified as Wis. Stat. section 29.29(3) in 1917 Wis. Laws, ch. 668.

    4 The State Board of Health was created by 1876 Wis. Laws, ch. 366, and was one of the first in the nation. Its authority over sewer and water systems came in 1905 Wis. Laws, ch. 433.

    5 Wis. Stat. § 281.41.

    6 1919 Wis. Laws, ch. 447 creating section 1407m-1. This section survives as amended as Wis. Stat. section 281.12 and is the source of the DNR’s authority over waters of the state.

    7 In 1925, massive fish kills in the Flambeau River triggered legislative action to address industrial pollution. See Donald M. Carmichael, Forty Years of Water Pollution Control in Wisconsin: A Case Study, 1967 Wis. L. Rev. 350.

    8 1927 Wis. Laws, ch. 264. The Board of Health provisions were renumbered in 1923 Wis. Laws, ch. 448 to Wis. Stat., ch. 144. The 1927 provisions added Wis. Stat. sections 144.51-.57, many of which have survived in what is now Wis. Stat. chapter 283.

    9 Water Quality Act of 1987, Pub. L. No. 100-4, 100 Stat. 7.

    10 “Surface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, either by retention, diversion, repulsion, or altered transmission; so that no cause of action arises for such interference, even if some injury occurs, causing damage.” Borchsenius v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 96 Wis. 448, 450, 71 N.W. 884 (1897). This rule was finally overturned in State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407(1974).

    11 Territorial Laws of 1839, “An Act concerning fences and fence viewers” §12.

    12 See 1862 Wis. Laws ch. 398, and 1871 Wis. Laws ch. 64 respectively.

    13 Alice L. Thompson & Charles S. Luthin, Wetland Restoration Handbook for Wisconsin Landowners ch. 1, at 1-2 (2d ed. 2004),

    14 See Wis. Admin. Code ch. NR 103 (first enacted in 1990); Wis. Stat. § 281.36.

    15 Huber v. Merkel, 117 Wis. 355, 94 N.W. 354 (1903). In Merkel, an owner of an artesian well allowed the well to flow continuously, thus lowering the artesian pressure of nearby wells. The court held, “If the waters simply percolate through the ground, without definite channel, they belong to the realty in which they are found, and the owner of the soil may divert, consume, or cut them off with impunity.” See also City of Fond du Lac v. Town of Empire, 273 Wis. 333, 77 N.W.2d 699 (1956).

    16 State v. Michels Pipeline Constr. Inc., 63 Wis. 2d 278, 217 N.W.2d 339, 219 N.W.2d 308 (1974).

    17 See 1945 Wis. Laws, ch. 303, creating Wis. Stat. section 144.03(6)-(8), which gave powers to the Board of Public Health to regulate such withdrawals.

    18 1985 Wis. Act 60. Water loss is not the same as water withdrawal or use; it is a much more limited concept. This statute was enacted in response to issues associated with water withdrawal from the Great Lakes and was extended to groundwater and surface water withdrawals in Wisconsin.

    19 2003 Wis. Act 310.

    20 See Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73 (relying on DNR’s general authority under Wis. Stat. §§ 281.11 and 281.12 and DNR duties under public trust doctrine).In an act passed after oral argument in Lake Beulah but before the court issued its decision, the legislature attempted to limit agency power in the absence of express grants of authority. 2011 Wis. Act 21. Nevertheless, the supreme court upheld Lake Beulah in a later case. Clean Wisconsin Inc. v. DNR, 2021 WI 72, 398 Wis. 2d. 433, 961 N.W.2d 611.

    21 1935 Wis. Laws, ch. 287. SeeNekoosa-Edwards Paper Co. v. Public Serv. Comm’n, 8 Wis. 2d 582, 99 N.W.2d 821 (1959); State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980); Adolph Kannenberg, Wisconsin Law of Waters, 1946 Wis. L. Rev. 345.

    22 See State ex rel. Chain O’Lakes Protective Ass’n v. Moses, 53 Wis. 2d 579, 193 N.W. 2d 708 (1972).

    23 Wis. Stat. § 281.35.

    24 See generally Wis. DNR, Great Lakes Compact and Diversions, (last visited March 8, 2022).

    25 See generally Wis. DNR, Waukesha Water Diversion EIS, (last visited March 8, 2022).

    26 Wis. Const. art. IX, § 1.

    27 Laws of 1840 No. 48, an Act in relation to Mills and Mill-Dams.

    28 Rev. Stat. of 1858, ch. 43 “Of Timber and Lumber Floating upon Waters or Carried Upon Adjoining Lands.”

    29 See generally Kannenberg, supra note 21.

    30 See State v. Bleck, 114 Wis. 2d 454, 457, 338 N.W.2d 492 (1983); see also Gillen v. City of Neenah, 219 Wis. 2d 806, 820, 580 N.W.2d 628 (1998); R.W. Docks & Slips v. State, 2001 WI 73, 244 Wis. 2d 497, 628 N.W.2d 781.

    31 State v. Kelley, 2001 WI 84, ¶ 30, 244 Wis. 2d 777, 629 N.W.2d 601; DeGayner & Co. v. DNR, 70 Wis. 2d 936, 236 N.W.2d 217 (1975).

    32 State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337; State v. Bleck, 114 Wis. 2d at 462; Illinois Steel Co. v. Bilot, 109 Wis. 418, 84 N.W. 855 (1901). For streambeds, the title is held by the riparian owner (the person who owns the property that the watercourse is within or adjacent to), qualified by the rights of the public to use the water for navigation. FAS LLC v. Town of Bass Lake, 2007 WI 73, 301 Wis. 2d 321, 733 N.W.2d 287.

    33 Lakebed grants are separate legislative authorizations but generally require DNR analysis before enactment. See Wis. Stat. § 13.097(2). Submerged land leases are authorized under Wis. Stat. section 24.39 and permits for structures or fill are authorized under Wis. Stat. section 30.12.

    34 Heise v. Village of Pewaukee, 92 Wis. 2d 333, 285 N.W.2d 859 (1979); De Simone v. Kramer, 77 Wis. 2d 188, 252 N.W.2d 653 (1977).

    35 2021 Wis. S.B. 900.

    36 965 Wis. Laws, ch. 614. The law codified as amended is now in Wis. Stat. section 59.692 and Wis. Admin. Code chapter NR 115.

    37 See Paul Kent, On the Waterfront: New Shoreland Zoning Laws, 90 Wis. Law. 14 (Jan. 2017).

    38 SeeMovrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807; Wis. Stat. § 30.132.

    » Cite this article: 95 Wis. Law. 22-30 (April 2022).

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