What Every Lake Property Owner Should Know About the Ordinary High Water Mark
Every lakefront homeowner should have knowledge about how their state defines the ordinary high water mark, because it determines how much land they own. Where I live in Wisconsin, the ordinary high water mark is what determines what is private and what is public, and those rights are illustrated through the state constitution.
Wisconsin waterways belong to the public. The Wisconsin Supreme Court made a ruling on this issue, stating that the state owns title to Wisconsin lakebeds. Stream beds are another issue, however. The state does not own title to stream beds. The Supreme Court also ruled that the ordinary high water mark draws the line between public lake bed and private land. The Wisconsin Department of Natural Resources determines what the ordinary high water mark is for each lake. According to the WI DNR, the Wisconsin Supreme Court, in 1914, defined the OHWM as "the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristic." The DNR's Water Regulations and Zoning Department staff will identify along the shoreline where the ordinary high water mark exists.
On some bodies of water it is very clear by the naked eye exactly where the ordinary high water mark is located. You can see the consistent erosion of the bank. Often times there will be a distinct line following along the shoreline that will be visible when the lake is at lower levels usually during the summer. These marks do vary, but according to DNR water management specialists, the ordinary high water mark does not change with fluctuations of water levels throughout the year. The ordinary high water mark is constant. It's not necessarily near the open water, either. We spoke to DNR authorities who explained that the area between the water's edge and the ordinary high water mark does not have to be navigable.
If you are buying lakefront with a wetland-fringed shoreline, the ordinary high water mark may be extremely confusing. You, as the property owner, will probably not be able to define on your own where it actually is located. You will want to have the DNR come out and make that distinction for you before you buy the property. This is very important, and could determine what you are able to do with that piece of land. Don't just assume you know where your private property ends and public waters begin, because you could be in for a big surprise.
It was explained that where the regular action of water against the bank leaves a distinct mark determines the extent of public water. You may think that asking for a survey from the current owner or ordering one yourself will help determine where the property line falls, but surveyors aren't trained to know where the ordinary high water mark exists. The survey potentially could give you false information. My grandparents own waterfront on Pelican Lake in northern Wisconsin. They had a survey completed and thought they knew where their property line existed. Later, when they decided to build a garage addition to their house, they found out what was actually their land. They had to go through a tedious and cumbersome permitting process with local, county, and state authorities. They also had to deal with the Army Corp of Engineers. It was later determined by the DNR that the survey was incorrect. What they thought they owned turned out to be lakebed. Remember that surveyors use that water's edge to determine your property boundaries, but clearly it may not really be your property line because the lake bed may be heavily vegetated with aquatic plant life. It may even look like solid land.
Usually, the DNR and your county will be on the same page when identifying the ordinary high water mark, because the DNR works with the counties on their shoreland zoning policies. You can have someone from the county come out to examine and determine the location of the ordinary high water mark, but I recommend having the DNR do it just to be safe.
In southern Wisconsin, you may be looking into purchasing a lakefront property with a concrete seawall or some other structure that makes it difficult to determine the location of the ordinary high water mark. In those cases, they'll come out to the site and identify the ordinary high water mark at a nearby location like a neighboring lot. They'll then transfer the elevation to the lot in question. If you are looking into buying lakefront real estate with wetlands, determining the ordinary high water mark can be somewhat subjective for state authorities because a lot of variables are used. It's complicated, to say the least. Everything from the type of soil to water level history to topography will be examined and reviewed to make the determination.
You may find out that you own a lot less real estate than you thought, and that means you are over-assessed and paying too much in property taxes. Very frustrating. If this happens, contact your local assessor and get in to your municipality's open book session. Don't pay taxes on property you don't own.
Another reason for finding out the ordinary high water mark before you purchase lakefront is to see if a structure that is currently considered conforming may really be nonconforming upon further review. You don't want to buy a piece of real estate and then have the neighbors call the DNR to determine the ordinary high water mark only to discover that the garden shed on a concrete slab sits below the mark. Not good.
Lastly, in Wisconsin, I don't know about other states, lake beds have not been mapped. Don't try to find and determine the ordinary high water mark on your own through a map or by your naked eye. Take the issue up with the appropriate authorities. Make sure you have all angles covered so you can make an educated decision before you write an offer on that lakefront real estate.