Wisconsin residents are pushing for a 'home lake' rule for wake boats to limit movement of invasive species

Proposal is designed to prevent transfer of aquatic invasive species

Paul A. Smith
Milwaukee Journal Sentinel
In an effort to reduce the potential for spread of aquatic invasive species, a petition is being prepared to create a "home lake" rule for wake boats in Wisconsin. The petition is expected to be presented in February to the Department of Natural Resources.

With proposed wake-enhanced boating bills stalled in the legislature, a group of Wisconsin residents is planning to take a petition directly to the Department of Natural Resources to address a leading concern associated with movement of the recreational vessels between water bodies.

The proposal would attempt to create a "home lake" rule to require wake boats to stay on a single body of water or prove they were properly drained or decontaminated before launching on another.

The reason: to stave off the potential spread of aquatic invasive species in the boat's ballast tanks.

"It's a critical issue for the health of our lakes," said Jim Olson of Madison, point person for the petition. "Right now the state rule is being ignored."

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In 2008 Wisconsin established NR 19.055 in administrative code in an effort to prevent transfer of AIS between water bodies.

The rule states "any person who removes a boat, boat trailer, boating equipment or fishing equipment from any inland or outlying water or its bank or shore shall drain all water" from the boat including in "any bilge, ballast tank or live well" immediately after removing the boat from the water, bank or shore.

Further, it prohibits transport over land of any boat from another state unless the equipment, including ballast tanks, are drained before entering Wisconsin.

Wake boat ballast tanks aren't adequately drained

However Olson said the ballast systems on wake boats, which typically contain up to 600 gallons of lake water to allow the craft to sit lower and create larger waves for surfers or tubers, frequently cannot be drained completely.

"Studies have shown that these systems retain as much as 20 gallons or more of water which can contain live invasives which will be spread to another body of water when the system is used in another water body," states a draft of the petition.

Although failure to drain all water from the ballast systems is prohibited by 19.055, DNR and local officials cannot enforce the rule because they do not believe they have probable cause to inspect the ballast system, Olson said.

Furthermore, even if they are allowed to inspect, due to the complexity of the ballast systems, adequate inspection is usually impossible, he said.

"Thus the landmark DNR rule, passed in 2008, is ignored," Olson said. "Public welfare is now being violated because the rule isn't being enforced."

Olson, who owns a cabin on Crab Lake in Vilas County and is a dedicated row troller for muskies, is particularly concerned with spiny water fleas being moved in ballast water. The invasive species has proven to be detrimental to native ecosystems. As a practical matter it is impossible to remove them once in a lake.

And many other invasive species, including zebra mussels, can also be moved in ballast water.

Wake surfing has been increasing in popularity over the last decade. Boating industry officials have stated sales of wake boats are growing about 20% annually.

Proposed wake surfing legislation is stalled

With increased use of the boats have come increased complaints from a substantial number of state residents. Public listening sessions in November in northern Wisconsin were dominated by local residents with stories of damage to aquatic vegetation, increased shoreline erosion, conflicts with paddlers and other lake users and flooding of loon nests.

A non-profit organization called Lakes At Stake Wisconsin even formed in 2023 to tackle wake surfing concerns.

But proposed wake surfing legislation in Wisconsin (Assembly Bill 656 and Senate Bill 680) has yet to be given a hearing. And a more restrictive proposal has failed to gain enough support from the Republican caucus to even be assigned a bill number.

Olson said he and a cohort of others, including members of the Last Wilderness Alliance in northern Wisconsin, decided rather than attempt to address all the issues related to wake surfing it was best to focus on one.

"Sometimes you go for the bundle and end up with nothing," said Olson, an attorney with experience in public trust doctrine issues.

In addition, Olson said he didn't think it was realistic to try to ban wake boats. The petition would allow wake-enhanced boating but within bounds established by existing administrative code.

He also noted state history: a petition by state residents helped lead to a ban of the pesticide DDT. The petition, filed in 1968 with the DNR, requested a "declaratory ruling on whether DDT was an environmental pollutant" within state statutes, according to a University of Wisconsin law review article.

The wake surfing petition will attempt to draw off the same Wisconsin provision that allows citizens to ask any state agency for a ruling on the applicability of a law or rule enforced by that department.

Vermont is a leader in wake boat rules

The Wisconsin wake surfing proposal is modeled in part on a recent rule approved by the Vermont Agency of Natural Resources. It would require a wake boat to be used only in one lake per summer unless the craft is decontaminated at a certified Vermont Department of Environmental Conservation service provider.

The Vermont measure was based on an "analysis of scientific literature, legal precedent, operational consideration for various types of motorized vessels, wake boat regulation in other states and extensive consultation with affected entities and individual," the Vermont ANR stated in its rule summary.

The Wisconsin petition would require all ballast systems to be decontaminated before the system can be used in a water body and that the ballast system only be used in a single water body following decontamination.

It would require the operator of a wake boat to possess a written, dated declaration from a dealer that sells or services such boat or a DNR approved facility that states that the ballast system has been decontaminated in accordance with decontamination procedures prescribed by the DNR.

In addition the paperwork would need to identify the water body on which the boat was certified for operation and require the boat operator to provide the written declaration upon request to any warden, public official or Clean Boats, Clean Waters person monitoring a boat landing.

Wake boat operators would also be required to affix a decal noting their decontamination status on their vessels.

Changes in Wisconsin administrative rules typically take two to three years since the Legislature assumed greater control over the process through Act 21 in 2011. But Olson said he hoped the petition could be taken up as an emergency rule change.

The petition requires the signatures of at least five state residents but will likely have "about 100," Olson said. Among those expected to sign are former DNR secretaries Scott Hassett and George Meyer as well as members of the Last Wilderness Alliance, including Steve and Carol Phillips and Jeffrey Meessmann, all of Presque Isle.

The petition is scheduled to be filed in February, Olson said.