Introduction
This book is designed as a successor to the two editions of Wisconsin Water Law: A Guide to Water Rights and Regulations that I authored for UW Extension. Like its predecessors, this volume was written with a dual purpose. The primary purpose is to provide an overview of Wisconsin water law that is accessible for any person with an interest in water resource management. This includes government officials and staff, property owners, water resource consultants and engineers, business owners, environmental advocacy groups, and educators. At the same time, the extensive footnotes in this volume are designed to be a resource for lawyers and others who want more information and additional references to begin research on specific questions.
This is not likely to be a book that many people read cover to cover.Nevertheless, the book as a whole was written to convey three overarching themes that are important to understanding water law: history, interconnectedness, and change.
First, it is important to understand something of the history of water law in Wisconsin. This book is entitled Wisconsin Water Law in the 21st Century to incorporate the concept of time and history. This book is certainly not a complete history of water law, but it is intended to provide some historical context for our current laws. Unlike many environmental programs such as the regulation of air emissions, hazardous substances, and contaminated sites that were created in the 1970s and 1980s, laws governing water in Wisconsin go back to the earliest territorial days of the State. At the same time, some of our water laws are surprisingly new in origin. Understanding the varied history of water law not only helps to more accurately understand specific laws, but it also helps us understand the importance water has had in the development of the State since its territorial days. How we manage water resources and balance public and private uses has been and continues to evolve through time. As water law moves into
the 21st century, it is important to understand where we have come from.
Second, it is important to understand the interconnectedness of water resources and our water resource laws. While the hydrologic cycle is fairly well understood, too often our water laws have focused on a particular water issue or type of water resource. Water law issues as varied as structures in navigable waters, shoreland development, stormwater, wastewater, and water supply, are
subject to different statutory chapters and rules. These issues are handled by different sections within DNR and are often handled by different groups of consultants, lawyers, and local staff.
Increasingly we need to look for watershed solutions that cut across types of water resources and different programs. If watershed issues were looked at more holistically, solutions can be found with multiple benefits. For example, a stormwater management project may reduce sediment but it also may reduce flooding, reduce inflow to sanitary sewers and associated overflow events, and
reduce stream bank erosion. Projects to reduce phosphorus into waters might involve recreating or enhancing wetlands, or creating infiltration basins that recharge groundwater, or removing dams and associated sediment.
By providing a single cross-referenced volume on water law, I hope that the interrelationship of our water laws and the purposes they serve will be more apparent. In addition, perhaps there will be a better appreciation of points of commonality in the law that can foster watershed approaches. One unifying principle arises from the Public Trust Doctrine, through which the State holds
the navigable waters in trust for its citizens. Similarly, the common law doctrine of reasonable use is seen in riparian rights, water withdrawal and water discharge.
There are also points of commonality in the statutes. Special purpose lake districts share many characteristics of sanitary districts and drainage districts even though the purposes are very different. Water laws, just like water resources, are more interconnected than many appreciate. The more we understand of water laws as a whole, the more we can better address specific issues with a view toward holistic solutions.
Third, water law continues to be dynamic. In the 12 years since the second edition of Wisconsin Water Law was published in 2001, almost every aspect of water law has seen a dramatic amount of change. That kind of dynamic change is likely to accelerate as we move into the 21st century. One source of change is increased population and development. This demographic reality is going to result in more demand for clean water from groundwater and surface water. It is also likely to result in more runoff from impervious surfaces, more urban waste to be treated, and substantial impact on agriculture.
Each of these may force us to rethink how we manage water use and water treatment. Areas of water scarcity could even lead courts to rethink whether the reasonable use rules should give way to laws more like the law of prior appropriation in water-scarce western states. How the State views its public trust responsibilities in the face of these increased demands will be a major policy consideration.
Another source of change arises from climate change. If changes in climatic patterns continue, they will have major impacts on water resources and the laws that govern them. Extreme storm events will result in more water runoff and flooding. These events could result in more active local lake and drainage districts.
Reduced ice cover could result in greater evapotranspiration, while less frozen ground could allow for greater infiltration. If drought conditions arise and wetlands and lakebeds recede, issues of title and state regulatory control may also evolve. In addition, changes in water temperature may result in changes in the mix of fish and aquatic life species in our rivers and lakes. How those changes interact with invasive species may have dramatic impacts on water quality and healthy aquatic habitats.
Despite these changes, Wisconsin is likely to remain a relatively water abundant state in an increasingly water scarce nation and world. How that will influence the evolution of water law is unknown. It is however likely to create additional challenges and opportunities. We have a wonderfully rich history in this State of preserving and protecting our water resources for the wide and
evolving variety of public and private uses. Water is one of the things that makes this State special. This book is designed to provide an overview of the laws that both reflect and protect this important resource.
This book is designed as a successor to the two editions of Wisconsin Water Law: A Guide to Water Rights and Regulations that I authored for UW Extension. Like its predecessors, this volume was written with a dual purpose. The primary purpose is to provide an overview of Wisconsin water law that is accessible for any person with an interest in water resource management. This includes government officials and staff, property owners, water resource consultants and engineers, business owners, environmental advocacy groups, and educators. At the same time, the extensive footnotes in this volume are designed to be a resource for lawyers and others who want more information and additional references to begin research on specific questions.
This is not likely to be a book that many people read cover to cover.Nevertheless, the book as a whole was written to convey three overarching themes that are important to understanding water law: history, interconnectedness, and change.
First, it is important to understand something of the history of water law in Wisconsin. This book is entitled Wisconsin Water Law in the 21st Century to incorporate the concept of time and history. This book is certainly not a complete history of water law, but it is intended to provide some historical context for our current laws. Unlike many environmental programs such as the regulation of air emissions, hazardous substances, and contaminated sites that were created in the 1970s and 1980s, laws governing water in Wisconsin go back to the earliest territorial days of the State. At the same time, some of our water laws are surprisingly new in origin. Understanding the varied history of water law not only helps to more accurately understand specific laws, but it also helps us understand the importance water has had in the development of the State since its territorial days. How we manage water resources and balance public and private uses has been and continues to evolve through time. As water law moves into
the 21st century, it is important to understand where we have come from.
Second, it is important to understand the interconnectedness of water resources and our water resource laws. While the hydrologic cycle is fairly well understood, too often our water laws have focused on a particular water issue or type of water resource. Water law issues as varied as structures in navigable waters, shoreland development, stormwater, wastewater, and water supply, are
subject to different statutory chapters and rules. These issues are handled by different sections within DNR and are often handled by different groups of consultants, lawyers, and local staff.
Increasingly we need to look for watershed solutions that cut across types of water resources and different programs. If watershed issues were looked at more holistically, solutions can be found with multiple benefits. For example, a stormwater management project may reduce sediment but it also may reduce flooding, reduce inflow to sanitary sewers and associated overflow events, and
reduce stream bank erosion. Projects to reduce phosphorus into waters might involve recreating or enhancing wetlands, or creating infiltration basins that recharge groundwater, or removing dams and associated sediment.
By providing a single cross-referenced volume on water law, I hope that the interrelationship of our water laws and the purposes they serve will be more apparent. In addition, perhaps there will be a better appreciation of points of commonality in the law that can foster watershed approaches. One unifying principle arises from the Public Trust Doctrine, through which the State holds
the navigable waters in trust for its citizens. Similarly, the common law doctrine of reasonable use is seen in riparian rights, water withdrawal and water discharge.
There are also points of commonality in the statutes. Special purpose lake districts share many characteristics of sanitary districts and drainage districts even though the purposes are very different. Water laws, just like water resources, are more interconnected than many appreciate. The more we understand of water laws as a whole, the more we can better address specific issues with a view toward holistic solutions.
Third, water law continues to be dynamic. In the 12 years since the second edition of Wisconsin Water Law was published in 2001, almost every aspect of water law has seen a dramatic amount of change. That kind of dynamic change is likely to accelerate as we move into the 21st century. One source of change is increased population and development. This demographic reality is going to result in more demand for clean water from groundwater and surface water. It is also likely to result in more runoff from impervious surfaces, more urban waste to be treated, and substantial impact on agriculture.
Each of these may force us to rethink how we manage water use and water treatment. Areas of water scarcity could even lead courts to rethink whether the reasonable use rules should give way to laws more like the law of prior appropriation in water-scarce western states. How the State views its public trust responsibilities in the face of these increased demands will be a major policy consideration.
Another source of change arises from climate change. If changes in climatic patterns continue, they will have major impacts on water resources and the laws that govern them. Extreme storm events will result in more water runoff and flooding. These events could result in more active local lake and drainage districts.
Reduced ice cover could result in greater evapotranspiration, while less frozen ground could allow for greater infiltration. If drought conditions arise and wetlands and lakebeds recede, issues of title and state regulatory control may also evolve. In addition, changes in water temperature may result in changes in the mix of fish and aquatic life species in our rivers and lakes. How those changes interact with invasive species may have dramatic impacts on water quality and healthy aquatic habitats.
Despite these changes, Wisconsin is likely to remain a relatively water abundant state in an increasingly water scarce nation and world. How that will influence the evolution of water law is unknown. It is however likely to create additional challenges and opportunities. We have a wonderfully rich history in this State of preserving and protecting our water resources for the wide and
evolving variety of public and private uses. Water is one of the things that makes this State special. This book is designed to provide an overview of the laws that both reflect and protect this important resource.
