30.10 Declarations of navigability.

(1) Lakes. All lakes wholly or partly within this state which are navigable in fact are declared to be navigable and public waters, and all persons have the same rights therein and thereto as they have in and to any other navigable or public waters.

(2) Streams.

(a) Subject to par. (b) and except as provided under sub. (4) (c) and (d), all streams, sloughs, bayous, and marsh outlets, which are navigable in fact for any purpose whatsoever, are declared navigable to the extent that no dam, bridge, or other obstruction shall be made in or over the same without the permission of the state.

(b) If the department makes a determination that a stream or portion of a stream is not navigable and a dam is constructed on the stream that modifies the flow of the stream or portion of the stream as compared to the natural flow of the stream or portion of the stream prior to its construction, and if an artificial impoundment created by the dam is or has been subject to a federal fish and wildlife service Partners for Fish and Wildlife Habitat Development Agreement or, as determined by the department, a similar publicly administered environmental restoration project, then the department may not change its determination of non-navigability with respect to the stream or portion of the stream unless all of the following conditions are met:

1. All structures that affect the flow of the stream or portion of the stream are removed.

2. All changes to the stream or land adjacent to the stream that could affect the flow of the stream or portion of the stream are substantially returned to their natural state.

3. A department evaluation of the navigability of the stream or portion of the stream conducted after the conditions in subds. 1. and 2. are met indicates that the department's determination of non-navigability should be changed.

(3) Enlargements or improvements in navigable waters. All inner harbors, turning basins, waterways, slips and canals created by any municipality to be used by the public for purposes of navigation, and all outer harbors connecting interior navigation with lake navigation, are declared navigable waters and are subject to the same control and regulation that navigable streams are subjected to as regards improvement, use and bridging.

(4) Interpretation.

(a) This section does not impair the powers granted by law to municipalities to construct highway bridges, arches, or culverts over streams.

(b) The boundaries of lands adjoining waters and the rights of the state and of individuals with respect to all such lands and waters shall be determined in conformity to the common law so far as applicable, but in the case of a lake or stream erroneously meandered in the original U.S. government survey, the owner of title to lands adjoining the meandered lake or stream, as shown on such original survey, is conclusively presumed to own to the actual shorelines unless it is first established in a suit in equity, brought by the U.S. government for that purpose, that the government was in fact defrauded by such survey. If the proper claims of adjacent owners of riparian lots of lands between meander and actual shorelines conflict, each shall have his or her proportion of such shorelands.

(c) Notwithstanding any other provision of law, farm drainage ditches are not navigable within the meaning of this section unless it is shown that the ditches were navigable streams before ditching. For purposes of this paragraph, “farm drainage ditch" means any artificial channel which drains water from lands which are used for agricultural purposes.

(d) A drainage district drain located in the Duck Creek Drainage District and operated by the board for that district is not navigable unless it is shown, by means of a U.S. geological survey map or other similarly reliable scientific evidence, that the drain was a navigable stream before it became a drainage district drain.

History: 1977 c. 190, 272, 418; 1981 c. 339; 1991 a. 316; 1999 a. 9; 2003 a. 118; 2011 a. 167; 2017 a. 164.

When there are 2 owners of land adjacent to a disputed parcel erroneously meandered under sub. (4), the judge is to divide the parcel proportionately on an equitable, but not necessarily equal, basis. Kind v. Vilas County, 56 Wis. 2d 269, 201 N.W.2d 881 (1972).

The department of natural resources properly considered the existence of beaver dams and ponds and the periods of high water caused by spring runoffs in determining the navigability of a creek. The dams and ponds were normal and natural to the stream, and the periods of high water were of a regularly recurring, annual nature. DeGayner & Co. v. Department of Natural Resources, 70 Wis. 2d 936, 236 N.W.2d 217 (1975).

An owner of land on a meandered lake takes only to the actual shoreline. An owner does not have a “proper claim" to an isolated parcel separated from the remainder of the lot by the lake, making sub. (4) (b) inapplicable as parcels separated by a lake are not “adjacent." State Commissioners of Board of Public Lands v. Thiel, 82 Wis. 2d 276, 262 N.W.2d 522 (1978).

A department of natural resources declaration of navigability subjecting private property to sub. (1) was a taking. Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983).

The department of natural resources has the authority, as well as the obligation, to determine whether the waters of the state are navigable in fact and subject to regulation under ch. 30, another agency's prior ancillary finding to the contrary notwithstanding. Turkow v. Department of Natural Resources, 216 Wis. 2d 273, 576 N.W.2d 288 (Ct. App. 1998), 97-1149.

This chapter applies to navigable ditches that were originally navigable streams. If a navigable ditch was originally nonnavigable or had no previous stream history, the department of natural resources' jurisdiction depends upon the facts of the situation. 63 Atty. Gen. 493.

Erroneously meandered lakeshore — the status of the law as it affects title and distribution. 61 MLR 515.

The Muench case: A better test of navigability. Edwards, 1957 WLR 486.

Riparian Landowners Versus the Public: The Importance of Roads and Highways for Public Access to Wisconsin's Navigable Waters. Williams. 2010 WLR 186.