Dreaming of Waterfront Property

A dose of regulatory reality


 Debbi Conrad  |    May 02, 2013
EktronWREM-Lakehouse.jpg

The buyer dreams of the clear water gently lapping on the shore next to the picturesque little cottage, or maybe it is the quiet solitude of ice fishing in a shanty just a short walk from the rustic cabin with a fire raging in the fireplace. The serenade of songbirds and the chorus of frogs are enticing, but anyone entertaining these visions must also be ready to embrace the idiosyncrasies the water brings and contend with the rules regulating waterfront properties. The following overviews some of the issues that may come into play when a buyer seeks riparian ownership.

The moving boundary line: ordinary high water mark

According to the state constitution, Wisconsin lakes and rivers belong to the public, and the Department of Natural Resources manages these waters for the benefit of all citizens. The state owns title to lakebeds, but not streambeds or flowed lands, and the Ordinary High Water Mark (OHWM) ‚ÄĒ where the regular action of water against the bank leaves a distinct mark ‚ÄĒ establishes the boundary between public lakebed and private waterfront property. The public has the right to canoe, fish, ice skate, snowmobile or wade in public navigable waters as long as access can be legally obtained from a public road or boat landing and as long as they avoid trespassing on the surrounding private shoreline.¬†

This OHWM boundary also establishes the baseline from which measurements are made regarding shoreland setbacks and when permits must be obtained for certain activities.

Through natural forces, the OHWM may fluctuate or move over the years. A property owner’s actual lot size based upon the OHWM may be a bit different than the legal description in the local tax and assessment records.

Piers please

Wisconsin‚Äôs pier rules in Wis. Stat. ¬ß 30.12 now automatically grandfather most piers constructed before April 17, 2012. As long as the owners did not receive notice from the DNR that their pier is ‚Äúdetrimental to the public interest‚ÄĚ and their pier does not interfere with the rights of other riparian owners, the pier is legally conforming as long as the owners do not enlarge it.
If there is no pier on the property but the buyer would like to install one, new piers can be placed without obtaining a permit from the DNR if the pier meets the Pier Planner requirements:

  • No wider than six feet.
  • No longer than the greater of: (a) what is necessary to moor the owner‚Äôs boat or use a boat lift, (b) the point of three-foot water depth as measured at summer low levels, or (c) the municipal pierhead established by local ordinance.
  • A loading platform no bigger than 200 square feet.

The owner may have two boat slips/lifts and two personal watercraft for the first 50 feet of water frontage, plus one more boat slip/lift and one more personal watercraft for each additional 50 feet of frontage.

Did you know about those dams?

A dam owner must maintain a dam in safe and reasonable condition, and liability can be imposed upon a dam owner for failure to maintain, repair or operate the dam in a safe and proper manner. 

Both the seller of the property on which a dam is located and the buyer of the property must complete a dam transfer application. An inspection is required prior to transferring the property and dam, as well as any repairs needed to bring the dam into compliance with safety standards. The buyer must show financial capability to maintain the dam and a permit may be required. Often decisions regarding dams can be controversial and lengthy because of the potential impacts on public safety, water rights and the local landscape. If dam transfer requirements are not met, the real estate transaction may be nullified.

County zoning imposes shoreland safeguards

Under Wisconsin law, all counties are required to adopt shoreland zoning ordinances that meet or exceed the minimum requirements established in Wis. Admin. Code chapter NR 115. The shoreland zoning ordinances must be applied to all land in unincorporated areas within 1,000 feet of a navigable lake, pond or flowage, and within 300 feet of a navigable river or stream. Chapter NR 115 establishes minimum regulatory standards for building setbacks, cutting trees and shrubs, lot sizes and nonconforming structures. This means that counties may adopt more restrictive standards.

The current regulations limit the amount of impervious surfaces, such as concrete, blacktop or footprint of structure for new construction and expansions of existing homes and buildings within 300 feet of the water to no more than 15 percent of the lot area, 30 percent if the property owner agrees to mitigation measures.

Under current law, homes and buildings located between 35 feet and 75 feet may expand vertically, but are not allowed to expand laterally or toward the landward side of the property, unless the entire expansion occurs behind the 75-foot setback.
The DNR is proposing new changes to chapter NR 115, which was revised in 2009 and will become binding on January 1, 2014 unless the effective date is extended. The key for the buyer, however, is to learn the rules adopted ‚ÄĒ and under consideration ‚ÄĒ by the county where the property is located.

Floodplains mean flood insurance

Floodplains are typically found near rivers, lakes and streams. Properties in high-risk flood areas with mortgages from federally regulated or insured lenders are required to have flood insurance. These areas have a 1 percent or greater chance of flooding in any given year, equivalent to a 26 percent chance of flooding during a 30-year mortgage. Flood insurance rate maps identify a property’s flood risk, and many have been recently revised. 

Homeowner’s policies do not cover flooding. Information about flood insurance coverage is available from the Wisconsin Office of the Commissioner of Insurance. 

Wetlands require DNR permits

A wetland is defined in Wis. Stat. ¬ß 23.32(1) as, ‚Äúan 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.‚ÄĚ Stereotypical wetlands have cattails, water lilies and wet soil, but not all wetlands are actually wet throughout the year. Anyone planning a project that impacts wetlands may need a permit from the DNR. The envisioned wooden walkway and bird-watching bench may seem harmless, but wetland standards can be quite restrictive.

Can we build it or fix it?

Hopefully, yes, but you may need a permit! DNR water regulation programs protect public rights and interests in the waterways and allow projects that will not cause harm. Many activities affecting navigable waters require permits or approvals from the DNR. For example, a permit may be required to engage in lakeshore erosion control, whereas a seasonal boat shelter may or may not require a permit, and a swimming raft placed within 200 feet of shore and removed from the water each night probably is exempt from a permit. Any activities possibly impacting Wisconsin waterways and wetlands should be first researched, starting with the DNR Waterway Protection website, to make sure no DNR permission or paperwork is required.

Join the club: lake districts and lake organizations

Special purpose districts such as public inland lake protection and rehabilitation districts (lake districts ‚ÄĒ there are various kinds), sanitary districts and sewer districts may overlay the property. If an owner has been assessed in the past for one of these special purpose districts, they‚Äôll probably remember. Property sellers on or near a lake should be asked if there is a formal lake district.

By all means, do not diminish or kill the buyers’ dreams of waterfront bliss, just be sure that they realize that the world that abuts Wisconsin’s waters is more closely guarded and regulated than properties situated in other locales, and that they are ready to learn and respect the additional layer of rules as they pursue that dream.

Resources

General Resources
Choosing the Right Waterfront Property: clean-water.uwex.edu/pubs/pdf/waterfrontprop.pdf.
UW Extension publications: www4.uwsp.edu/cnr/uwexlakes/publications/default.aspx.

Dams
Dams FAQ: dnr.wi.gov/topic/Dams/FAQ.html.
Dam permits: dnr.wi.gov/topic/Dams/permits.html.

Waterway activities and zoning
DNR Waterway Protection page: dnr.wi.gov/topics/waterways.
September 2010 Legal Update, ‚ÄúCounty Shoreland Zoning Rules‚ÄĚ at www.wra.org/LU1009.

Floodplains
WRA floodplains information: www.wra.org/floodplains.
Flood insurance: www.floodsmart.gov/floodsmart.
Wisconsin Office of the Commissioner of Insurance Flood Insurance Information: www.oci.wi.gov/employers/flood.htm.

Wetlands
WRA Wetlands Addendum: dnr.wi.gov/topic/wetlands/documents/AddendumW_2008final.pdf.
DNR Wetlands: dnr.wi.gov/topic/wetlands.

Ordinary high water mark
DNR OHWM page: dnr.wi.gov/topic/waterways/general_info/ohwm.htm.
February 2007 Legal Update, ‚ÄúWater‚Äôs Edge: Floodplains & the Ordinary High Water Mark‚ÄĚ: www.wra.org/LU0702.

Piers
Exemption checklist: dnr.wi.gov/topic/waterways/checklists/checklist_pier_wharf_082012.pdf.
DNR Pier Planner: dnr.wi.gov/topic/Dams/permits.html.

Lake districts
Special districts in Wisconsin: www.revenue.wi.gov/slf/cotvc/08spdis.pdf
Lake districts/organizations: www4.uwsp.edu/cnr/uwexlakes/lakelist.

 

Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.

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