Ensuring Equitable Access to Wisconsin’s Waters
November 27, 2022 | Topics: Issues, Spotlight
Recent state legislation, vetoed by Gov. Evers, would have jeopardized access to waterways and waterfronts
By Virginia Small
Photographs by Eddee Daniel
Milwaukee is often called “a city built on water.” The traditional homeland of the Ho-Chunk, Menominee and Potawatomi tribes, this area was known as “the gathering place by the waters.” European settlers established Milwaukee at the confluence of the Kinnickinnic, Milwaukee and Menominee rivers, which all flow into Lake Michigan. Early framers of Wisconsin’s Constitution were intent on keeping waters open for all. Wisconsin’s version of the Public Trust Doctrine was enshrined within the Constitution. It declares that all navigable waters—wherever it is possible to float everything from a canoe to a tugboat to a freighter or ship—are “common highways and forever free.” These waters are all held in trust by the state for the public good. As part of Wisconsin’s doctrine, when a waterway is filled the resulting land is forever held in trust and protected by the state, except under unusual circumstances.
Equitable Protection of Rights to Water
Why should people care about the Public Trust Doctrine? “Most simply, if you care about water, you should care about the Public Trust Doctrine. It is the constitutional right we all have that requires the government to protect water resources,” said Tony Wilkin Gibart, director of Midwest Environmental Advocates (MEA) www.midwestadvocates.org, a nonprofit law center. “Whether your concern for water is rooted in a love for Lake Michigan; a passion for boating, fishing or swimming; or a desire for clean drinking water, the Public Trust Doctrine requires the state to protect your interests. In short, the state cannot simply do nothing; it must actively create and enforce policies that safeguard water for all of us and for future generations.”
The obligations imposed by the Public Trust Doctrine mean that protection of water and public access does not depend solely on political processes—which tend to favor industry groups that can hire lobbyists and make donations to legislators. “Rather, the state is required to protect the interests of all Wisconsinites,” said Wilkin Gibart. “In this respect, the Public Trust Doctrine should be a doctrine that promotes water equity. It requires the state to protect everyone’s right to access healthy water—not just act on the interests of groups who are wealthy or politically powerful,” he said.
Water equity stands to become even more important here. According to Rhonda Nordstrom, the Water City Program Manager for the nonprofit Milwaukee Water Commons (MWC), “As Milwaukee continues to be elevated as a water-rich city, and the Great Lakes region is portrayed as a refuge from climate-change impacts, it will take all of us advocating on behalf of Black, Brown, Indigenous and low-income communities to ensure that we all have access to the gifts of our waters.” MWC works to help “catalyze Milwaukee as a true model Water City…where we all have a stake in the health of our waters and all share in their stewardship and benefits.”
An Attempt to Undermine the Public Trust Doctrine
Despite this long-established law, Wisconsin’s Republican-controlled state Legislature passed SB 900 earlier this year, which “would have violated the Public Trust Doctrine by allowing municipalities to redraw the boundaries between public trust land and private property along the Great Lakes,” according to a statement by MEA. According to Wilkin Gibart, the bill as drafted would have affected over 64,000 thousand miles of river shorelines, much of the 800-plus miles of Great Lakes shorelines, and potentially many thousands of miles of shorelines on Wisconsin’s 15,000 inland lakes.”
No Democrats supported SB 900. Governor Tony Evers (D) vetoed it in entirety in April. His veto states: “This bill would allow municipalities and private landowners to create title over formerly submerged lands in the Great Lakes waters land which the state of Wisconsin currently holds in public trust for the people of Wisconsin — and certain commercial waterways. Under the bill, a person may submit an application to a municipality for a determination of the location of the proposed shoreline. The bill would require the Department of Natural Resources to adopt a determination [made] by a municipality unless the department finds a municipality’s public interest determination lacked substantial evidence, or the property is not upland. The latter determination would not warrant a full rejection, but would rather require the Department to modify the proposed shoreline accordingly.”
Evers further explained, “I object to impinging on the constitutional public trust doctrine under Article IX, Section 1 of the Wisconsin Constitution. This bill would open the door to the whittling away of public land by allowing the transfer of public lands to private entities for private use without a rigorous review process.”
Among the groups who supported SB 900 were the League of Wisconsin Municipalities, NAIOP Wisconsin (a commercial real estate development association), Wisconsin Builders Association, and Wisconsin Realtors Association.
Among those who opposed SB 900 were 13 statewide and local organizations that sent a joint letter to Evers urging him to veto the bill. Three local groups signed on: Milwaukee Riverkeeper, Milwaukee Water Commons and Preserve Our Parks.
Milwaukee’s Successful Riverwalk Respects the Public Trust
Milwaukee’s Riverwalk is often cited as a model for how civic-minded development can occur alongside public access to waterways. “The [Riverwalk] system is a public-private partnership between riverfront property owners and the City of Milwaukee. In exchange for permanent public access, the City provides financial assistance for the construction of private Riverwalk improvements. Since its inception, property values along the Riverwalk have climbed by more than $1.5 billion,” said a 2022 article in WisPolitics.com.
Michael Cain, a retired Madison-based attorney who worked for Wisconsin’s Department of Natural Resources for 34 years, asserted that people wanting to privatize public waterfronts often are unaware of the extraordinary economic and other community benefits that public waterfronts provide. “This Riverwalk is an example of a win-win,” said Cain. “The City of Milwaukee worked in cooperation with the DNR to create a Riverfront Comprehensive Plan that would comply with the State Constitution and the Public Trust Doctrine. Today, there are commercial and residential developments on upland adjacent to the river. And the public access along the river has been maintained, consistent with the public trust.”
Wilkin Gibart said that any legislation similar to SB 900 “would call into question the long-term viability of Milwaukee’s Riverwalk because private property owners along the river could argue that they can now use those properties without restrictions. That would affect economic development and revitalization downtown and in the Third Ward for Milwaukeeans and visitors.” He said that such a bill “could also lead to more private development along the shores of Lake Michigan, making the lake less accessible to members of the public.”
How Milwaukee Got—and Keeps—Its Exceptional Lakefront
People often wonder how Milwaukee managed to keep what appears to be an “unspoiled” waterfront. In fact, nearly all of Milwaukee’s lakefront north of downtown was created over decades—by filling in areas of Lake Michigan. In keeping with the Public Trust Doctrine and specific lakebed grants, these lands may be used solely for public uses. This intentional effort, first initiated by the City of Milwaukee’s parks commission in the l890s, has served multiple civic goals. The filled areas are protective buffers against the naturally-occurring erosion of bluffs overlooking the lake, which would jeopardize structures built there. The filled lakebed also created more public land for recreational uses. Today, those varied amenities include public beaches and parks, marinas, a spur of the countywide Oak Leaf trail, campuses for museums, and the Summerfest grounds.
This article has been edited for length. You can read it as it originally appeared in the Shepherd Express on October 4, 2022. It is reprinted with permission from the author.
Virginia Small is an award-winning journalist who writes and speaks about environmental issues, public spaces, and landscape history. Eddee Daniel is a board member of Preserve Our Parks. The image at the top is of a temporary Civil War memorial in Veterans Park.