In Praise of Public Stream Access
Updated: Sep 16, 2022
We are blessed in Wisconsin to have an abundance of water and just as importantly, to have the access to waters we have. The state's more than 15,000 lakes, 84,000 stream and river miles, and over 10,000 miles of designated trout streams (WDNR source) provide plenty of opportunities and diversity for anglers. From the way the laws are written to the publicly owned lands and the private lands that have been eased to provide access for anglers; anglers in Wisconsin are fortunate. Not everywhere is so fortunate. It is part of what makes Wisconsin such a great angling destination.
Stream Access Laws
Wisconsin stream access laws are very favorable to the angler - though a bit less favorable than they used to be (more on that later), not every state has it so good. Wisconsin's Public Trust Doctrine states that,
The river Mississippi and the navigable waters leading into [rivers flowing into the state], and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.
Source: Wisconsin Legislative Council, The Public Trust Doctrine
The language is taken from the Northwest Ordinance which was the act of Congress that created the territory north of the Ohio River and east of the Mississippi River. This includes the states of Ohio, Indiana, Michigan, Illinois, and Wisconsin along with a portion of Minnesota. Laws around water and access to them are rooted in history. Whereas Wisconsin used language that defined navigability broadly and is written in the angler's favor; other states have different histories and definitions of navigability. Colorado is a classic example of "Western Water Law" and a narrow definition of navigability - one that will be argued in courts soon.
The US government defined navigable waters as once used as highways for commerce. In Wisconsin, we determined this to mean that any waterway - even those that are intermittently dry - are navigable so long as at some point in the year, they can be floated by the smallest recreational craft. This idea stems largely from the logging days when logs were floated anywhere they could be floated. Colorado took an approach as close to 180 degrees from Wisconsin as possible. They determined that Colorado rivers were non-navigable due to their steepness and that while the water flowing through them is public (well, sort of...), the stream bed belonged to the land owner so wading, anchoring, or touching the bottom with an oar or the bottom of the boat is as illegal act. Any anglers that have fished Colorado understand that it is imperative that you know exactly where you are. In fact, there are some public accesses that are only public to the midway point of the river.
Wisconsin's declaration of navigability (State Statute 30.10) states that:
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.
(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.
The navigability definition and the Public Trust Doctrine allow anglers to "keep their feet wet" and fish (nearly) any stream in the state. At one time - before 2001 - all anglers and other users had to do was stay within the "ordinary high water mark". Today, anglers have to keep their feet wet but they can get out of the stream and go around an obstruction - which includes water too deep to wade - but they must immediately re-enter the stream and may not cast from shore.
Members of the public may use any exposed shore area of a stream without the permission of the riparian only if it is necessary to exit the body of water to bypass an obstruction.
Source: Updated 19−20 Wis. Stats. NAVIGABLE WATERS, HARBORS AND NAVIGATION
I do not use this law very often - I most typically fish publicly accessible waters. Maybe I should clarify, all navigable waters and their bottoms are public waters in Wisconsin, but I generally fish those that I can access their riparian areas legally. But it is nice to know that if you see a stream or a reach without public access, you can legally fish the stream so long as you are able to legally access the stream. This typically means accessing the stream within the road right-of-way provided by a bridge or another place where the stream is within the the road right-of-way. For most roads, that means 33 feet from the centerline in both directions (66 feet total), though some rural roads have narrower right-of-ways. It also means you can legal fish from any other place you were able to legally access the stream such as a park, state or federal lands, or from private property which you had permission to access.
The last little bit on stream law and access in Wisconsin - it is illegal for riparian landowners to prevent you from accessing a navigable stream. I would suggest that this is probably the most poorly understood and enforced part of stream access laws in Wisconsin. Of course fences designed to keep cattle in are just as adept at keeping anglers out. And I am sure that more than a few fences in Wisconsin have been built for both purposes and at least a few have been built more to keep people out. Many years ago, I remember a fence over the Big Green River with a large hand-painted "KEEP OUT" sign that advertised the fact that land owner did not want you fishing "their" stream, almost certainly an illegal act if anyone were to challenge it. It is also illegal for people to harass you and keep you from legally fishing while on any navigable stream or lake (Wisconsin Statute 29.083). While I have never had the "pleasure" of being accosted by an angry landowner, I know several who have dealt with land owners (note, they are NOT river owners) that either did not know the law or knowingly broke this law.
The two images above are both from streams with easements to allow angler access (more in the next section). The one makes getting around the fence difficult at best - though we are working wit the WDNR to improve this situation - and the other provides an easy place for anglers to cross into the next pasture. And all this was paid for by anglers without it costing the land owner a penny.
I am NOT a lawyer! I am not even trying to play on on the internet. But this is my understanding of the laws which I think are important for anglers to have some understanding of their rights to access navigable streams. If you travel outside of Wisconsin, you should familiarize yourself with the laws of other states. Not all - in fact very few - are as angler-friendly as are Wisconsin's laws.
Laws around angler access are much more nuanced and difficult to write about - I can be much more succinct in these next two sections.
Wisconsin is a leader in leasing private lands for angler access. I have been to other states with easements or "walk-in" angling programs but none with the amount of access that Wisconsin provides. I am not able to find an estimate of how many miles of streams are accessible by easements but I know where I fish, most of the publicly accessible lands are private lands leased for public fishing access. The streambank easement program is described by the WDNR:
The program purchases easements directly from landowners. In return for payment, the landowner allows public fishing and DNR management activities along the stream corridor on their property. The easement area is generally 66 feet of land from the stream bank on either side of the stream. Easements are perpetual and remain on the land even if it sold or deeded to an heir.
If you have read this far, you know that anglers can legally fish any navigable stream and that the definition of navigability includes about 99.9% of all trout streams in the state. What easements do is allow anglers access and fish from the riparian zone along the stream without worrying about having to keep their feet wet. While the Wisconsin Department of Natural Resources holds most of these easements, there are a number of conservation organizations, "rod and gun" clubs, and counties that also hold easements which are, at times, more difficult to know where and how to access them.
Three quick points about easements:
While you should show great etiquette everywhere, it is especially important on these privately-held lands. The future success of the easement program relies upon those accessing these private lands to be good stewards of the land. Leave it at least as well as you found it (though that should ALWAYS be the case).
Most - but not all - easements are for public fishing ONLY. This means no campfires, no picking mushrooms, or doing anything other than using the streambanks for fishing. Anglers violating this agreement can cause a lot of issues between the landowner and the holder of the easement. At least a few easements have been lost due to violations of points 1 and 2.
The single best source for where to find easements is Wisconsin's T.R.O.U.T - Trout Regulations and Opportunities User's Tool. It contains all the public lands in the state as well as private lands eased for public fishing by the WDNR. Some counties have also incorporated information about easements that they hold into T.R.O.U.T. as well. There are certainly many easements by conservation organizations which are not readily available online.
Wisconsin is blessed to have millions of acres of public lands owned by federal, state, county, and local governments (and schools). The Chequamegon-Nicolet National Forest is over 1.5 million acres of land and water and provides access to some of the state's best trout, Smallmouth Bass, and musky waters for fly anglers (and others). The Wisconsin DNR owns and manages state forests, wildlife areas, fisheries areas, state natural areas, and state parks. And counties have their own parks and forests, many with camping, access to water, and a diversity of outdoor recreation opportunities. These lands are accessible in the T.R.O.U.T application along with the Public Access Lands Mapping Application.
The state has generally done a great job of providing access to through boat launches. These are great places to access streams and lakes not only with a boat but also for the shore and wading angler. Additionally, a number of private companies and utilities provide access. I have accessed a number of rivers and flowages by access provided by power companies.
Wisconsin is blessed with great access to our state's many waterways through laws favorable to anglers, private lands eased for angler access, and public lands owned by the state and federal government. Approximately 17% of the state is publicly owned - less than our neighbors Michigan and Minnesota but more than Iowa or Illinois (low bar, I know). That 17% does not include the private lands leased for public fishing which provide a great "bang for the buck". A relatively small amount of land provides a lot of angler access. Add in stream access laws that recognize streams and streambeds are public resources and we are truly blessed.