If Your Feet Are Wet, You’re Not Trespassing

By Debra Fitzgerald, August 4th, 2023

But ‘No Trespassing’ structures along beaches require state approval

It wasn’t that long ago that Door County beaches were under water. Record high-water levels in 2020 forced property owners to worry about their shoreline being washed away, not who was wandering by or threatening to make a stake in the sand with a beach towel.

That has changed. Green Bay and Lake Michigan water levels have dropped 29 inches during the past three years, according to data from the U.S. Army Corps of Engineers. Even over last July, levels have declined four inches from monthly average water levels.

The retreating water has exposed a lot of Door County shoreline. When those beaches beckon, the question becomes: Is the public allowed to answer that call? May people walk on the beach past homes and properties that are privately owned?

The short answer, according to the Wisconsin Department of Natural Resources (DNR), is yes – but only if you’re walking in the water.

“Use of the exposed area of a navigable waterway by the public is based on case law that has held that a riparian owner does not have the right to exclude others from navigating or recreating in the near shore adjacent to his/her property as long as the public is keeping their feet wet or if they are navigating in a watercraft,” said the DNR’s Kathleen Kramasz by email.

This is also known as the “keep your feet wet” test, and the case law Kramasz referenced was a 1914 Wisconsin Supreme Court decision. The law essentially means that members of the public who get to the lake via public access or by permission from a riparian landowner may then walk the shoreline without being considered trespassers as long as they remain in the water. Otherwise, Kramasz said “it could be considered a trespass violation” – but not one that the DNR enforces, she said. “This is up to the local sheriff’s department to enforce.”

The DNR has jurisdiction over public waters, waterway regulations and the Public Trust Doctrine that applies to all navigable waters, defined as any waterway on which it is possible to float a canoe or small watercraft at some time during the year. The Public Trust Doctrine is the law that grants rights to everyone to use the waters of the state for swimming, boating, fishing – or walking in the water.

The ordinary high water mark (OHWM) is key to the Public Trust Doctrine in that it determines “state and county jurisdictional areas, private versus public ownership, and where the public can navigate,” according to the DNR.

“The area of exposed beach below the ordinary high water mark is held in trust but is not available for public use,” Kramasz said.

The OHWM, as defined by that 1914 Wisconsin Supreme Court case, is “the area where the presence and action of surface water is so continuous as to leave a distinctive mark, such as by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic.”

On the Great Lakes, the OHWM is notoriously difficult to find because of natural fluctuations. However, when the water level is high – as it was on Lake Michigan in 2020 – the public may use the area up to the water’s edge, according to the DNR. When the water level is low – as it is now on Lake Michigan – the riparian property owner “has exclusive use of the exposed bed until water returns.”

Though the OHWM is the dividing line between public and private ownership, the DNR stresses that the wet-foot test is all the public needs to know.

“As a member of the public, you need not worry about the location of the OHWM as long as you stay in the water,” according to the DNR.

Though riparian property owners have rights to the beach land between the OHWM and the water’s edge, those rights are not absolute. The state allows riparian property owners to prevent the public from walking on the beach, but only through “nonstructural means” – defined by the DNR as “temporary signs and verbal warnings.”

“Permits are still required from the DNR to place structures on the exposed beach area,” Kramasz said, “and we would consider a series of posts with rope in between to be a structure that would need a DNR approval.”

Get Your Feet Wet

If Your Feet Are Wet: Legacy of the Public Trust Doctrine

Letter to the Editor: Trespassing, Dumping Are Signs of Bigger Issues

DNR Dragging Feet on High Water Mark Declaration