Property owners in growing numbers are challenging state decisions that reject their projects, but the courts are reaffirming the public's constitutionally protected rights and interest in Wisconsin waterways and are sending a message to real estate agents and prospective waterfront buyers.

"The courts have held that we need to consider the cumulative impacts of these individual projects as it relates to fish, wildlife, aquatic plants, water quality and the ecosystem as a whole, says Michael Cain, Department of Natural Resources lawyer.  "It's clear from these court decisions that potential buyers and riparian owners have to be aware of the potential limitations on structures, the number of boats, and the ability to modify the near shore area to suit their desired uses.  If they want a sandy beach, they should buy a property that already has one, not one with a 'mucky' bottom."

Research in Wisconsin and elsewhere is increasingly documenting the collective harm to fish and wildlife populations and water quality from individual activities that clear away vegetation from the lake shore, or shade or simplify shallow water habitat by placing piers, mooring boats and installing large structures in the areas, says Mary Ellen Vollbrecht, DNR chief of the rivers and regulations.  Plants, grasses and shrubs on the shoreline provide habitat for frogs, birds and other wildlife; plants in shallow water provide spawning habitat and food for fish and can also help preserve water clarity by anchoring sediments and by competing with algae for phosphorus, she says.

Activities along Wisconsin's lake waterfronts have skyrocketed: the number of homes along sizes of northern Wisconsin lakes has increased an average of 216 percent since the 1960s, with lakes 500-1000 acres in size now having nine times as many homes as in the 1960s.

Information on the increase in shoreland development and its impact on lakes an rivers have been highlighted in a new slide show called Margin of Error:  Human Influence on Wisconsin's Shores that is available from water resource specialists at DNR service centers and through the University of Wisconsin Extension (UW-Ext.).  The slide show may also be viewed on the DNR's web site and can be purchased from UW-Ext. on CD-ROM for home computers.

"The number of homes along sizes of northern Wisconsin lakes has increased an average of 216 percent since the 1960s, with lakes 500-1000 acres in size now having nine times as many homes as in the 1960s."

Among the studies highlighted in the slide show is research that found that as larger homes are being built in the 1990s, more land is disturbed and more polluted runoff is entering lakes:  for example, a lakeshore home of 3350 square feed, with a paved driveway, annually sends 18 times as much sediment ot the lake as undeveloped land does, and four times as much as the typical 700 foot, 1940s-style cottage did.

In addition to the home building, the number of formal proposals to the DNR to alter waterways by such activities as dredging lake bottoms to create a sandy beach, to build a seawall, and install a large pier has tripled just since 1990.

To lessen harm to lakeshore habitats, Wisconsin relies on a combination of regulation, education, and landowners' voluntary conservation efforts.  These efforts include DNR, UW-Extension and private sector experts conducting workshops for landscapers and contractors on ways to minimize damage to shoreline habitats, making available videos and publications for landowners interested in protecting their shorelines, and DNR staff working with local governments who seek help in developing more protective zoning for their vulnerable lakes.

Still, requests for projects along lakeshores continue to flood in, and property owners are pursuing them further:  the Department approves about 86 percent of the requests, and DNR decisions are contested nearly five times as often as in 1990, either by the property owner or by concerned citizens, Vollbrecht says.

In deciding these appeals, the courts continue to uphold long-standing water law principles protecting water quality, fish and aquatic life habitat, natural scenic beauty and the public's ability to use these waterways for fishing, swimming and passive recreation, as protected "public rights."

"The courts have also recognized that lakeshore owners have certain rights to 'reasonable use' of their shorelines, but that these rights need to be balanced with and are subordinate to the public rights," Cain says.

"A lakeshore home of 3350 square feed, with a paved driveway, annually sends 18 times as much sediment ot the lake as undeveloped land does, and four times as much as the typical 700 foot, 1940s-style cottage did."

Administrative Law Judge mark Kaiser cited public rights - and the need to consider cumulative impacts of individual projects - in denying a Chicago couple's appeal after the DNR rejected their permit to dredge organic matter from the bottom of Mill Lake in Walworth County.  The couple wanted to replace the "muck" with a pea gravel blanket to create a sandy bottom, and also wanted to reconstruct a seawall on the property, according to the July 13 decision.

Kaiser noted that the property was on a bay, where the "muck" results from organic matters that's blown into the bay and settles on the lakebed, and would likely require repeated dredging.  "Although it is unfortunate that the applicants can not enjoy the lake in front of their property to the extent they would like, the bottom line is that it is not in the public interest to allow destruction of spawning and nursery habitat to temporarily improve the recreational use of the area," Kaiser wrote in the decision record.

Cain says that such decisions send an important message to property owners, to realtors, and to people that are looking for property along Wisconsin's lakes and rivers.

"It is important that anyone purchasing property adjacent to our waterways be aware of the type of frontage and the natural resources that exist on that frontage.  There may be limitations on the kinds of modifications an owner can make along the shoreline or in the water adjacent to the shoreline to protect the public interest.  It's important for people to consider these things before they purchase the property or undertake significant planning on projects to modify the shoreline and waterway."