Getting the Word Out (with an example)

Lakeshore Dreams, a published and virtual magazine devoted to promoting Minnesota's heritage of lake cabin ownership, is to be commended for helping to publicize the D.N.R.'s plans to impose stricter regulations on dock and boatlift ownership. With a 15,000 person mailing list, we hope that the magazine's assistance will contribute to a groundswell of concern and standing up to the D.N.R. Click here for a link to the LakeshoreDreams.com posting and call to action.

Here's an example of P.O.P.U.L.A.R.'s concern. The photo below is of an endangered dock configuration. Currently, and for more than two decades, the configuration has been compliant with all regulations and the local lake association guidelines. However, because it stretches for 65 feet on a 100 foot shoreline, it would be prohibited under currently proposed D.N.R. regulations. The property owner would be forced to discard thousands of dollars of dock structure and would not be able to use his property to moor all of his watercraft, forcing him to pay for outside storage or sell the "excess" boats. There is no justification for this! The property owner was at all times in compliance with existing regulations when he supported the local economy and purchased the structures and the watercraft. The D.N.R. could, and should, easily focus its efforts on future lakeshore development to achieve its stated preservation goals and leave existing lawfully installed structures alone.

End Game: Standing up to Needless Regulations

Minnesota’s precious summer season soon returns and the installation of lakeshore owners’ docks and boat lifts is in full swing. “Precious” should probably also be applied to the docks and boat lifts themselves. Now that the Department of Natural Resources has gone through the motions of completing four meetings of the Private Structures Advisory Group, it is drafting proposed regulations that, if adopted as described in the last meeting of the Advisory Group, will significantly change the way 45-60,000 lakeshore owners access the public waters.

P.O.P.U.L.A.R. members have a last opportunity to intervene in the process before new regulations are adopted in time for the January, 2010 deadline. Assuring reasonableness in the adoption of new regulations governing the size and number of docks, boat lifts, boat ramps, dock platforms, and canopies will require active participation in the public hearing process set to take place in late summer. It will take communications to the vast majority of riparian owners unaware of pending rule changes to assure their participation in the process. It will take a focused legal challenge to ill-conceived modifications to existing regulations that will diminish lake access rights and property values. It will take funding.

Here’s the update.

P.O.P.U.L.A.R. served on the Advisory Group as the voice of lakeshore property owners. However, as reported earlier, the Advisory Group consisted mostly of D.N.R. staff and individuals with more concern for returning the public waters to environmentally pristine jewels than with recognizing the rights of riparian (lakeshore) owners to continue to enjoy their formerly lawful access to public waters.

Lip service, which abounded, was paid to the rights of riparian owners. Unfortunately, it appears that the persons responsible for generating the draft of the new regulations believe a single four-foot wide dock extending to four feet of depth satisfies legal obligations to riparian owners and any expansion of that limited access is a gift. One environmentalist on the Advisory Group thought the initial regulations proposed would have no affect on 85% of Minnesota’s lakeshore owners. I reminded the gentleman that the 15% of 300,000-400,000 property owners who will be negatively affected amounts to 45-60,000 interested parties.

Here are some of the issues that arose in the Advisory Group discussions:

• P.O.P.U.L.A.R. objected to conducting an Advisory Group without giving the group members any guidance on the demonstrated need for new regulations or limits on the scope of what ought to be considered. As a matter of law, regulations cannot be modified without submitting a Statement of Need and Reasonableness (SONAR), something like an environmental impact statement, prior to allowing the government to modify rights of private citizens.

Although the Advisory Group was told there would be a draft SONAR to work off of by the February meeting and, later, before the final April meeting, a SONAR was never provided to the Advisory Group. Rather, at the April meeting, it was explained that the D.N.R. will develop a SONAR to justify (after the fact) whatever draft rules are sent to the Commissioner and the Governor for consideration. P.O.P.U.L.A.R. considers this unacceptable and believes it effectively negates the credibility of any “advice” relied upon from the Advisory Group. During the course of four meetings of the Advisory Group, there was no demonstrated need to modify existing regulations other than a mandate from the Minnesota Legislature that arose because of concern over the size of dock platforms.

P.O.P.U.L.A.R. likened this approach to being asked to design a cost effective airplane without being told if the airplane was going to be used to fly from Brainerd to Minneapolis or from Minneapolis to Tokyo. Without adequate guidance on need and reasonableness, it’s impossible to give informed advice.

• P.O.P.U.L.A.R. argued strenuously for including grandfathering provisions in any new regulations. The D.N.R. circulated questions to the Advisory Group about the appropriateness of grandfathering existing private structures that were legal when first installed. The responses generally supported a phasing out of the right to maintain legal structures over a period of time.

• P.O.P.U.L.A.R. argued that new regulations needed to consider the economic impact on property values and on businesses that rely on lake commerce. The so-called “real estate industry” representative on the Advisory Group acknowledged that stricter D.N.R. regulations would result in some of her clients wanting to sell their lake homes because of reduced access opportunities. However, the representative would not connect the dots and admit that a sell-off resulting from stricter regulations would put downward pressure on market values. Evidence from experts to the contrary submitted to an administrative law judge will be critical in forthcoming public hearings.

• P.O.P.U.L.A.R. argued that any “impact area” imposed should not necessarily be defined by a contiguous line since many riparian owners bought lots with longer shorelines precisely in order to segregate various activities, e.g., swimming areas from boat docks. This was ignored in the initial draft of the new regulations.

• P.O.P.U.L.A.R. argued for the inclusion of specific criteria for the issuance of permits for structures that exceeded the minimalist criteria that will not require a permit. Criteria recommended by P.O.P.U.L.A.R. had to do with safety, both with respect to mooring watercraft and to assuring lake access for persons with physical challenges, historical uses (again, grandfathering structures that had been in place prior to the adoption of rules that restricted them), and family size. Only the family size criterion was included in the initial draft and that was challenged by a D.N.R. staffer offended that the size of one’s family should determine how much dock a riparian owner could put out.

As currently proposed:
• Riparian owners will be allowed to have an impact on their lakeshore that is contained within a contiguous line that does not exceed the lesser of ½ of the length of their shoreline or 50 feet. There was some discussion that a minimum length might be appropriate for smaller lots, thereby avoiding the need to cram all impact into a 25 foot wide area on a 50 foot lot.
• Anyone with seven or more watercraft, seaplanes or floating structures restrained by docks, mooring buoys or other means will be considered to be operating a mooring facility and will need a permit.
• There is no provision in the initial draft for grandfathering structures that were legal when first installed.
• Dock platforms cannot exceed 120 square feet (not including the dock extended from shore) without a permit.
• There is no provision to compensate riparian owners who will have to discard excess dock sections and/or boat lifts and, not incidentally, "excess" watercraft to comply with new regulations.

Action Plan

1. Send letters to D.N.R. Commissioner Mark Holsten. His e-mail address is mark.holsten@dnr.state.mn.us. His fax number is 651-296-4799. His address is 500 Lafayette Road, St. Paul, MN 55155-4040. Demand that property owners who have invested thousands of dollars in their lawfully installed docks, boat lifts, canopies and platforms be allowed to keep and maintain them. Demand compensation for any other result, including compensation for the reduction in property values that will result from reduced access. By simply grandfathering in the right to retain previously owned lawfully installed private structures, most of the issues go away.

2. Send letters to Governor Pawlenty. His e-mail address is tim.pawlenty@state.mn.us. His fax number is 651-296-2089. His address is 130 Capitol Building, St. Paul, MN 55155. Demand that he not approve any new regulations that do not grandfather previously owned lawfully installed private structures. Demand that any new regulations contain specific criteria for allowing issuance of permits where structures justifiably exceed the restrictions in the regulation in view of safety and historical uses.

3. Help publicize the existence of the pending regulations. Make sure lakeshore neighbors are aware of what the D.N.R. has planned. Refer them to this website. Ask them to be added to the P.O.P.U.L.A.R. mailing list. This is not about platform sizes. Once property values are impacted by new regulations, it will result in local governments needing to raise property taxes on everyone to make up for the reduced revenue from properties that no longer justify premium taxation.

4. Donate to P.O.P.U.L.A.R. You can use the PayPal link at the top right of this page or below or send a check to P.O.P.U.L.A.R., 247 Third Avenue South, Minneapolis, MN 55415. The funds will be used to educate and organize the public, pay for professionals to represent collective interests of lakeshore property owners before the D.N.R., to make P.O.P.U.L.A.R. heard in public hearings and, if necessary, in court to challenge any illegally adopted regulations. A lot of effort has been made to establish a record and hold the D.N.R. accountable. Please help assure that we do not repeat the mistakes of 2002 by sitting idly by while new restrictions are quietly adopted.

Please Support P.O.P.U.L.A.R. (all donations graciously accepted)

Response to Questions of the Week

Thanks to the 30+ folks who took the time to complete the survey that was posted in response to the D.N.R.'s Questions of the week. I compiled the responses and submitted them to the D.N.R. for inclusion in the official record of the Private Structures in Public Waters Advisory Group.

I also submitted a response on behalf of P.O.P.U.A.R. It appears below.

Finally, the D.N.R. questioned my so-called "cheap shot" at the person designated as the Advisory Group's representative of the real estate industry in my February 15th blog report on the February 12th meeting of the Advisory Group. I did not identify the person by name then; I won't do so now. My criticism of the person's narrow point of view while accepting the responsibility of representing all realtors in Minnesota who sell lakeshore property was not meant as a cheap shot. However, in retrospect, to be 100% accurate, I should have referred to the person as the only realtor with whom I have spoken in the past year about the issue who does not see a correlation between D.N.R. regulations and lakeshore property values. I apologize for the broader language contained in the February 15th blog and for any angst the perceived exaggeration caused. I also renew my call for the appointment of someone in the real estate industry with a broader point of view to the Advisory Board.

Here's the memo responding to the Questions of the Week:

M e m o r a n d u m

To: D.N.R. Private Structures Advisory Group/Erika Rivers
From: Sam Stern, P.O.P.U.L.A.R.
Date: February 25, 2009
Re: Response to First “Question of the Week”


Before I get into detail on the responses I have to the Question of the Week, I’d like to share an analogy with the Advisory Group that might illustrate why answering the questions posed such difficulty. As you read this, keep in mind that we are all acting in a fiduciary, as well as representative, capacity as Advisory Group members. Accordingly, we should not be engaging in absolutes (e.g., “no limitations under any circumstances” on one end; “no modification of wilderness status” on the other). Therefore, the ability to intelligently answer any questions depends to a large degree on the context in which the question is being asked. Here’s the analogy:

Imagine that instead of discussing private structures on public waters, we have been asked to design an airplane for a courier service that operates out of Lindbergh International Airport, Holman Field, Flying Cloud Airport and the farmer’s airstrip near me in Maple Plain.

Imagine we were asked the following Questions of the Week (they are not intended to correlate to our actual questions):
a. How long should the runway be in order to safely take off from the airport?
b. Should the airplane be allowed to use the entire runway before lift off?
c. How long should the wingspan be on the airplane?
d. How much cargo should each flight be allowed to carry?

Remember, our mission is to design an airplane. Before we can intelligently answer any of the questions, each of which in their own context asks for relevant information, we need the answers to other questions.

a. You cannot answer the first question unless you know how large the airplane is going to be. If the courier service is going to continue to operate out of all four venues, then the Advisory Group would need to either recommend different sized airplanes for the different airports or that the one airplane being designed be small enough to be able to take off and land in the most restrictive environment.

b. You cannot answer the second question unless you are familiar with the configuration of respective airports. I believe that Lindbergh is engineered to allow the use of nearly the entire runway when necessary. Using the entire runway in the farmer’s field in Maple Plain would put the airplane perilously close to County Road 83 and to power lines.

c. You cannot answer the third question until you have some idea of the size of the airplane being designed, including its cargo capacity and its desired range and whether it will be powered by jet engines or by propellers. Space limitations at the airport would also have to be considered before the question could be answered intelligently.

d. You cannot answer the fourth question until you have some idea of the capacities of the airports. Runway length and construction will determine how much cargo can be carried. Also, you need to come up with a design before you can put a limit on cargo. A C-130 should be allowed to carry more than a Piper Cub. However, getting back to (a), if the Advisory Group is only supposed to come up with one design that all four airports can accommodate, it will necessary to design on the small side.

If a member of the Airplane Design Advisory Group came to the table with a pre-conceived notion that air transport is a bad idea, that jet engines are too noisy and harm the environment and that any new airplane should have no more than minimal impact, then I suppose it would be possible to answer the four questions without regard to the variables that make a more impartial consideration possible. However, doing so would violate the fiduciary responsibilities to the courier service assumed by agreeing to sit on a committee formed to deliberate and advise.

I fear that the Private Structures Advisory Group is being put in the same position as my analogy. We are being asked to answer questions about shoreline impact without a clear understanding of the goals we are striving to achieve. We have yet to see a Statement of Need and Reasonableness. Therefore, no one has been shown the “need” for any new regulations (other than a legislative mandate that arose solely out of concern for the size of dock platforms). No one has demonstrated the “reasonableness” of various degrees of regulation. As in my analogy, it would not be reasonable to submit a design for a twin of the Boeing 747 if the courier service depended on the farmer’s field in Maple Plain to operate. And consider how your answers to the questions in the analogy might be further affected by the knowledge that the courier company only serviced the Twin Cities metropolitan area, making the use of anything but the smallest of planes a silly alternative to trucking.

With that as background, and with the fervent request that the Private Structures Advisory Group be furnished with necessary contextual information in which to deliberate in the future, here are P.O.P.U.L.A.R.’s responses to the Questions of the Week.


1. How much shoreline width do people need to impact in order to have their dock, lift, swim areas, aquatic impact management areas, etc? It is impossible to provide a “one size fits all” answer to this question. Many P.O.P.U.L.A.R. members who answered this question in surveys conducted online and provided to the D.N.R. identified a specific number based on their own experience. However, thinking more globally, the length of shoreline “needed” depends on specific shoreline topography, specific historic lawful use of the shoreline and the resulting utilization of various forms of private structures and watercraft, family size and other demographics, including health considerations.

2. Should it be a percentage of shoreline owned; with a minimum and/or maximum? Other suggestions? Since Shoreland Management rules being updated and aquatic plant management rules will necessarily impact the placement of private structures along riparian property owners’ shoreline, there is no need for new Private Structures in Public Waters rules to further restrict the length of aquatic impact. The State has to recognize that in instances where lakeshore property owners have more narrow shorelines, restrictions beyond those imposed by Shoreline Management and APM will render the property nearly unusable. In instances where lakeshore property owners have opted to purchase longer expanses of shoreline to meet their particular needs, they should be allowed, subject to Shoreline Management and APM rules, to enjoy the benefit of their bargain.

3. Should the impacted space be continuous? If not necessarily continuous, should they be of equal width within the total percentage allowed? There is no need for the impacted space to be continuous. As before, there is not one approach that reasonably fits all uses. Some lakeshore property owners purchased lots with longer shorelines precisely because they wanted to separate different uses of their property, often out of concern for safety. It is difficult to answer this question without have a sense of what the allowable aquatic impact length will be. For example, if the allowed length is limited to 30 feet (Heaven forbid), it is unlikely that, on a 60 foot wide lot there would be room for meaningful separation of the zones given required setbacks from lot lines.

4. How would the width be measured (would it measure across the altered shoreline and/or altered aquatic vegetation area? from dock edge to lift edge? Would maneuvering room be included?) As indicated by a number of P.O.P.U.L.A.R. members who responded to this question in the survey, it is not clear what is being asked. Having said that, as a general rule, any measurement criteria should be narrowly construed so that areas not actually impacted are not included in the width of the zone. With respect to “maneuvering room” being included, the mere suggestion is an affront to any concept of fairness. As we have been reminded ad nauseum, the public waters are available to everyone. Why would we even consider imposing effectively more restrictive conditions on riparian property owners by limiting their ability to maneuver in public waters for fear of having a larger portion of the public waters be included in their overall aquatic impact zone?

D.N.R.'s "Questions of the Week" aka "Putting the Skier before the Boat"

The Private Structures Advisory Group has been asked by the D.N.R. to respond to the first in a series of "Questions of the Week". While under some circumstances, this might prove to be a useful tool to identify areas of agreement (and disagreement) among Group members, I have serious concerns about the timing of posing these questions and expecting meaningful responses.

As I indicated last week, we have yet to see the proposed Statement of Need and Reasonableness (SONAR) required to justify any rule-making. Answering the Questions of the Week outside of the context of a SONAR makes little sense to me.

Here are the questions.

1. How much shoreline width do people need to impact in order to have their dock, lift, swim areas, aquatic impact management areas, etc?

2. Should it be a percentage of shoreline owned; with a minimum and/or maximum? Other suggestions?

3. Should the impacted space be continuous? If not necessarily continuous, should they be of equal width within the total percentage allowed?

4. How would the width be measured (would it measure across the altered shoreline and/or altered aquatic vegetation area? from dock edge to lift edge? Would maneuvering room be included?)

Here's the problem. The answers to the questions depend entirely on the goals sought to be achieved by new rules and the goals should depend on the need to make changes in current rules. Without a SONAR, the responses to the Questions of the Week could amount to nothing more than irrelevant opinions. For example, the answers to the questions should be dramatically different depending on whether rules are needed to (i.) maintain the status quo with respect to aggregate human impact on aquatic plant life and fish or (ii.) return all lakes in the State of Minnesota to wilderness status in order to protect the biological environments. Also, since the "R" in SONAR stands for "reasonableness", it is impossible to determine the reasonableness of a proposed rule independently of knowing what the goal is trying to achieve.

There is no need for me to suffer alone in trying to respond to the Questions of the week. PLEASE take the time to give me your thoughts on the Questions of the Week by clicking the link at the end of this paragraph. I will make sure P.O.P.U.L.A.R. members' responses are incorporated into my official response. Because of the deadline to respond by 4:00 p.m. on Wednesday, February 25, I need your input on our survey by 10:00 a.m. on the 25th. Click here to take the survey.

Thanks for your support.

Report on the Feb 12 DNR Advisory Group Meeting

The second meeting of the Private Structures Advisory Group took place on February 12th. As was the case with the first meeting in January, P.O.P.U.L.A.R. was the primary voice arguing against more restrictive D.N.R. regulations of private structures on public waters.

In addition to P.O.P.U.L.A.R., Dan VanderMey of FLOE International spoke up for the dock industry. There was no representative of the marine industry at Thursday’s meeting. The representative of the real estate industry, who P.O.P.U.L.A.R. expected would support concerns about the impact of regulations on property values, was more concerned with limiting colorful boat canopies across the lake from properties she was listing.

Fortunately, Bruce and Julie Larson and Rob Birkeland attended the meeting as public observers and provided input to the Advisory Group during the public comment period at the end. I have asked Tom Hovey, who oversees the Advisory Group at the D.N.R. to appoint Bruce Larson to the Advisory Group in order to assure that the only real estate representative on the Advisory Group is not also the only real estate agent in Minnesota who doesn’t see any correlation between D.N.R. regulations and lakeshore property values.

Before I get into what transpired at the meeting last Thursday, here’s what did not happen.

• The draft of the Statement Of Need And Reasonableness (SONAR), required as part of any rulemaking was not discussed. It is still being worked on and will be submitted to the Advisory Group before the March meeting. The document is critical because it identifies for an administrative law judge the concerns that allegedly justify modifying regulations in the first place. If there is no legitimate need, there should be no rulemaking.
• The group did not discuss the parameters of a General Permit that would be used to incorporate most current uses of private structures. Rather, Julie Ekman, who heads up D.N.R. Waters permitting, explained that the D.N.R. believed that the rules themselves would identify private structures that did not need any permit. The problem with this approach is two-fold:

1. On a procedural basis, it contradicts the decision of the Advisory Group, actually submitted to a vote at the first meeting, that extensive discussion of the scope of a General Permit should be addressed at the outset of the February meeting. I am not comfortable with a unilateral decision by D.N.R. staff to ignore the directive from the Advisory Group and, in fact, to eliminate reference to discussion of the General Permit and the vote to make its discussion a priority in the minutes of the January 6th meeting. Click here to go to the D.N.R. web page with a link to the minutes.
   
2. On a substantive basis, the lack of a General Permit eliminates an efficient way to make it clear that private structures that were lawfully installed under then current regulations will be allowed to be retained not withstanding subsequent, more stringent regulations. Absent a General Permit grandfathering in pre-existing private structures, the new regulations themselves will have to incorporate legacy language.

Some progress, from the point of view of P.O.P.U.L.A.R. members, was made at the February 12th meeting of the Private Structures Advisory Group.

• The concept of the “Aquatic Impact Zone” was modified significantly. If it appears in the final recommendations to the D.N.R. commissioner, it will not be based on the square footage limitations contained in the first draft of the rules and challenged as unworkable last month in this blog and in P.O.P.U.L.A.R.’s lobbying efforts. Rather, the Advisory Group reached a consensus that any “aquatic impact zone”, designed to aggregate human impact on a limited portion of the lakeshore property, will be measured along a line parallel to the shoreline according to a formula to be discussed later. P.O.P.U.L.A.R. took the position that the length of the aquatic impact zone should depend on the length of the owner’s shoreline and should be subject to the grandfathering of any prior, lawful uses of private structures. We also argued, with some success, for a non-contiguous aquatic impact zone, in order to allow for the separation of swimming and boating areas on properties where the owner opted to purchase additional lakeshore to allow for safer use of the property.

The table below identifies the variety of opinions on the Advisory Group as to how long the aquatic impact zone should be. P.O.P.U.L.A.R. intends to demonstrate how restrictive some of these proposed configurations are when dealing with a 50-100 foot shoreline and a couple of boats and a swimming area.

Allowed Length of AIZ Votes
Depends on size of property. . . . . . . . . . . . . . . . 5
Depends on size of property (w/limits) . . . . . . 5
Max 50’ or ½ length. . . . . . . . . . . . . . . . . . . . . . 2
Max 40’ or 1/3 length . . . . . . . . . . . . . . . . . . . . . 1
Max 50’ or 1/3 (w/allowance for small lots). . 3
Max 30’ or 1/3 length. . . . . . . . . . . . . . . . . . . . . .1

• The other area of significant progress was the willingness of the pro-D.N.R. side of the table to acknowledge that it may be necessary to grandfather at least some previously lawfully installed private structures. P.O.P.U.L.A.R. was adamant about the need to compensate lakeshore property owners for any regulatory taking and, more importantly, adamant about everyone on the Advisory Group understanding that entitlement to compensation was a matter of law. While I had the sense that D.N.R. staff and representatives of environmental groups were not happy with the prospect of having to limit the scope of regulations to something affordable, it was not my job to make them happy. I committed to distributing more information on the concept of mandatory compensation before the next meeting.

Two meetings remain before the Advisory Group will turn over recommendations to the D.N.R. commissioner and the public hearing process will begin. We still need to pin down the need for an aquatic impact zone, the propriety of grandfathering prior lawful uses of private structures, the basis for issuing special permits that will address special needs of lakeshore property owners based primarily on safety grounds and the question of enforceability and affordability of whatever final form the rules take.

Some of you have been sending me questions about specific aspects of the rules and the justification for what the D.N.R. is doing. Because of time and budget constraints, I am not in a position to respond on an individual basis, especially since most of the questions are similar. However, if you post your questions as comments to the blog, I will respond publicly in order to allow everyone to share, and comment on, the response.

To those of you who responded to the request for donations, thank you for your support. We would like to continue our aggressive representation of lakeshore property owners and increase our presence at the legislature. However, doing so will take the financial support of everyone with a stake in the outcome. Secure donations through PayPal can be made by clicking on the "Donate" button at the top of the blog. Otherwise, checks can be mailed to P.O.P.U.L.A.R., 247 Third Avenue South, Minneapolis, MN 55415.

Please comment by clicking on the “Comment” link below.

Frequently Asked Questions about DNR Rulemaking

I have received a number of requests to shorten the length of these blog entries.

To try to keep things more brief, I have prepared the following list of “Frequently Asked Questions” or FAQs. Please feel free to ask anything else in the comment section at the end of the blog.

Q: Why do we need more DNR regulations?
A: Because the Legislature said so in 2008. Senator Mary Olson of Bemidji, responding to pressure from constituents concerned about the size of dock platforms, required the DNR to undertake and complete new rulemaking by January 2010 on the issue of “private structures” in public waters.

Q: Is the “private structure” rulemaking limited to a debate about dock platform sizes?
A: No. Once directed to take a new look at the rules, last modified in 2002 to restrict dock width to 8 feet but with no limit on the length of dock, the DNR has indicated it intends to address all private structures, including boatlifts, boat slip canopies, boat launching ramps, beach sand blankets, dock platforms and docks themselves.

Q: What is P.O.P.U.L.A.R.’s position on the proposed new regulations?
A: Simply put, P.O.P.U.L.A.R. believes that if a private structure was acquired and first utilized in a lawful manner (consistent with then existing regulations), it should be exempted from any new restrictions. The property owner should be allowed to retain and continue to use the private structure and should be allowed to pass on exempted private structures when their lakeshore property is sold. Any new regulations, which should still be reasonable and meet N.E.A.R. criteria, will apply to newly acquired private structures.

Q: What is N.E.A.R.?
A: P.O.P.U.L.A.R. believes any new regulations have to meet a four-way test: Needed, Enforceable, Affordable and Reasonable.
• If there is no demonstrated Need for a change in the regulations, the law prohibits their adoption.
• Any new regulations should be limited in scope to a level that can be Enforced uniformly and with the limited resources available to the DNR.
• New rules that deprive lakeshore property owners of the use of lawfully acquired and utilized property, or result in a reduction in the market value of lakeshore property, constitute a regulatory taking, entitling affected persons to compensation from the State. Therefore, any new regulations should be limited in scope to a level that the State of Minnesota can Afford.
• Taking everything into consideration, the final form of regulations must be Reasonable as a matter of law.

Q: Doesn’t P.O.P.U.L.A.R.’s position, effectively one of “grandfathering” existing docks, boatlifts and other private structures amount to a “I have mine, but you cannot have yours attitude”?
A: Yes. So what? P.O.P.U.L.A.R. believes that is a better approach than “I cannot have mine so formerly legal uses have to be stopped”. Think of it like this. When Congress first mandated more fuel-efficient cars in the 1970’s because of the benefits to the environment and in order to reduce dependence on foreign oil, it did not outlaw "muscle cars" lawfully acquired beforehand or prevent them from being sold. It just looked forward and moved on. Anyone purchasing a vehicle afterward accepted that they were in a new era. It can be the same way with lakeshore property owners (as long as the new private structures regulations are N.E.A.R.).

Q: What is P.O.P.U.L.A.R. doing to prevent the adoption of unneeded, unenforceable, unaffordable and unreasonable regulations?
A: P.O.P.U.L.A.R. has a seat on the Private Structures Advisory Group, appointed to represent the interests of lakeshore property owners. Unlike past rulemaking exercises, the DNR is forced to respond to P.O.P.U.L.A.R.’s challenges to proposed regulations. Because of its position on the Private Structure Advisory Group, P.O.P.U.L.A.R. has been able to publicize elements of the proposals being considered, like the “Aquatic Impact Zone” discussed previously in this blog, resulting in reconsideration by the DNR and less restrictive proposals being used as a baseline for further consideration. More generally, P.O.P.U.L.A.R. serves as a single, focused voice of the hundreds of thousands of lakeshore property owners potentially impacted by new regulations. This blog was visited nearly 6,000 times since initially posted in early 2008. In just the last three weeks, when P.O.P.U.L.A.R. started reporting in earnest on the new rulemaking, the blog has been visited 1,510 times. As P.O.P.U.L.A.R. lobbies the Governor, the Legislature and the DNR, these numbers are significant.

Q: What happens next?
A: Once the Private Structures Advisory Group makes its recommendations to the DNR commissioner, proposed rules will be published. There will likely be public hearings responding to the proposed rules and, depending on the level of support P.O.P.U.L.A.R. receives, we will encourage members’ attendance and arrange for the testimony by members of the business and lake communities to create a record upon which final implementation of rules must be based. Ultimately, the DNR commissioner, the governor and an administrative law judge need to determine that the regulations are needed, reasonable and comply with all requirements of the law. A number of P.O.P.U.L.A.R. members have indicated that they are determined to sue to prevent the implementation of any new regulations that do not meet those standards.

Q: What is the status of Private Structures Advisory Group deliberations?
A: Currently, I am preparing for the February 12th meeting of the Private Structures Advisory Group. The agenda calls for discussion on the scope of a General Permit to exempt certain private structures from regulation. There are some members of the Advisory Group who, at our first meeting, expressed the opinion that the DNR should not issue any general permit and that lakeshore property owners should have to go before the DNR to get permission for pretty much anything that goes into the water. P.O.P.U.L.A.R.’s position, by contrast, is that there should be general permits, written as broadly as possible, allowing legal uses of private structures to be continued without regard to new regulations.

Q: Are the Private Structures Advisory Group meetings open to the public?
A: Yes, but only for purposes of observation. A better way to have input is to communicate with P.O.P.U.L.A.R. to make sure concerns are being addressed and then attend public hearings when held to voice your opinion publicly.

Q: Does P.O.P.U.L.A.R. publish all comments on its blog or are negative comments censored?
A: P.O.P.U.L.A.R.’s policy is to publish all comments with the exception of anonymous personal attacks. We will publish personal attacks if you have the backbone to put your name on them. We will publish anonymous posts that merely express an opinion, for us or against us, but do not engage in personal attacks.

Q: What happens if P.O.P.U.L.A.R. does not receive adequate financial support to fund its efforts?
A: The short answer is that lakeshore property owners will be left to fend for themselves individually. We will complete our service on the Advisory Group and look for volunteers to carry on. However, we believe much of the gains that have been achieved will be lost. The DNR, and the majority of the Advisory Group membership that supports very restrictive limits on the existence of private structures in public waters, are funded by taxpayer money. They do not have any reason to pull back from achieving their agenda.

Please use the "Donate" button at the top right of this blog to show your support. Thank you!

Finally, here is a question from a member who wrapped most of the objections critics of private structures on public waters have into a single question:

Q: If lakeshore property owners are not supposed to (i.) commandeer public waters with their private structures, (ii.) use structures to make their lake experience more comfortable and, depending on conditions, even possible, (iii.) create eyesores that everyone on the lake has to look at, and (iv.) interfere with access to all of the public waters, why aren’t ice fishing houses regulated?
A: Anybody?

Thank you for your support and assistance in keeping P.O.P.U.L.A.R. members' interests protected.

He Said, We Said

I was going to entitle this installment of P.O.P.U.L.A.R.'s blog "It is, too, a big deal" in response to a contrary characterization of the new private structure rules by a D.N.R. official. The problem is, that after speaking directly to the official who allegedly made the comment, I do not believe he meant what those in earshot thought that he said. Confused? Good. Because the lesson for today is how P.O.P.U.L.A.R. intends to apply pressure while exercising restraint.

We are going to apply pressure in the current rule-making process because we are not willing to allow the large majority of citizens who are convinced that lakeshore owners are selfish elitists bent on usurping the public waters to give political cover to environmental interests desiring to adopt the restrictions of the BWCA on a Statewide basis. Lest you believe I am exaggerating the political challenges we face, be sure to check out the comments that appeared in the January 24th Star Tribune in response to an article about proposed public access fees on Lake Minnetonka. I have included a few of them below.

We are going to exercise restraint because there is a chance through common sense discussions and factually based negotiations we will be able to establish a record in this rule-making process that will either leave an administrative judge no choice but to consider the property rights of lakeshore property owners or will set the stage for successful litigation to enforce those rights if not acknowledged in new DNR regulations. A lack of restraint, i.e., ranting and raving with little regard for substance and an unwillingness to engage in thoughtful debate will undercut the legitimacy of our concerns.

This double-edged approach crystallized after a series of meetings and phone calls that started last week when the annual Boat Show opened its doors at the Minneapolis Convention Center. P.O.P.U.L.A.R. began receiving phone calls from dock and watercraft vendors expressing concern that the DNR was visiting everyone's booth and, for all practical purposes, denigrating the work of P.O.P.U.L.A.R. and suggesting that we were over-reacting and needlessly stirring up lakeshore owners and business people by false claims of adverse consequences from the adoption of new regulations.

I decided to investigate and went to the Boat Show to meet with some of the folks who had visited with the DNR. I have gone out of my way to be accurate in my description of the challenges P.O.P.U.L.A.R. members face and did not want to jeopardize our credibility by making accusations about inappropriate DNR behavior on the basis of hearsay. Since much of the concerns that had been expressed after the Boat Show meetings was relayed through an intermediary, I wanted to check things out directly.

I used the occasion to distribute literature at the Boat Show, asking interested parties to educate themselves on the scope of pending regulations by following our efforts on this blog and to support the work of P.O.P.U.L.A.R. I am convinced that the wider the audience P.O.P.U.L.A.R. has, the more difficult it will be for the DNR to adopt new rules, as it did quietly in 2002, that do not acknowledge and protect lakeshore property owers' rights.

Prior to publishing anything about my Saturday afternoon meetings at the Boat Show, I decided to speak directly to the DNR official who had visited the vendors earlier in the week. I wanted to give him the opportunity to respond to what I had been told by the vendors (they said you said) and, where appropriate, memorialize his comments in order to establish a baseline from which to negotiate the private structure in public waters regulations. My restraint was rewarded when the DNR official and I had the opportunity to speak for nearly an hour yesterday, clarify some issues and clear the air about our respective roles as we go forward.

Here is the exchange that occurred during the phone conversation yesterday:

P.O.P.U.L.A.R.: Several vendors claim you told them P.O.P.U.L.A.R. was putting out false information to scare people and raise money (I offered to share the DNR's portion of lottery ticket sales instead).
DNR: Did not say P.O.P.U.L.A.R. was spreading false information. I had been receiving calls from people concerned because they heard the DNR was going to impose fees and require licenses in order to have dockage at their lake property. I said that there is false information like that being spread, without accusing P.O.P.U.L.A.R., and I wanted to assure everyone that it was false.
P.O.P.U.L.A.R.: That wasn't us. As we discussed last year, credibility is key for us. If there's something you see in the blog or otherwise that is not true, call me on it. Directly.
DNR: There hasn't been anything in the blog that is not true. However, the discussion of the new rules was based on a preliminary draft and the final version will likely be much different. (n.b., This includes the contents of the literature distributed at the Boat Show)
P.O.P.U.L.A.R.: But without changes, the concerns expressed in the "Open Letter to Governor Pawlenty" blog are accurate?
DNR: Yes.

P.O.P.U.L.A.R.: The vendors at the Boat Show said you claimed that the new regulations would not have an impact for 85% or 98% (two different recollections) of lakeshore property owners.
DNR: I said 90-95% of lakeshore owners would not be impacted by the time the initial version of the regulations that we distributed at the Advisory Group meeting are modified in response to everyone's input.
P.O.P.U.L.A.R.: But, clearly, as written, an Aquatic Impact Zone that limited lakeshore property owners to using 500-2,500 square feet of the lake adjacent to their property based on a ratio of 5 square feet for every foot of shoreline would affect much more than 5-10% of lakeshore property owners.
D.N.R.: Yes, but that's why we have to go through the process of considering the impact and making adjustments so the rules make sense.

P.O.P.U.L.A.R.: The vendors at the Boat Show said you claimed that the State would not regulate the number of boats lakeshore property owners were allowed to own. However, the effect of regulations that limit the amount of dock and number of boat lifts that can be installed has exactly that impact.
DNR: Let me ask you something. Do you think, that with all the scrutiny the new regulations will receive, from the Advisory Group you sit on, from other divisions in the DNR, from the Commissioner, even from the Governor before they become effective, we will end up with regulations that force people to give up their boats?
P.O.P.U.L.A.R.: The short answer is "no" because P.O.P.U.L.A.R. will be in court overturning any attempt to do that. If there's any regulatory "taking" by the DNR, there has to be compensation to the property owner whose property was taken. Since the State cannot afford the tens of millions of dollars of liability a taking would create, it cannot legally adopt confiscatory regulations.
DNR: (No further debate on the subject)

Other matters dicussed in my productive conversation include:

• my concern that, just as P.O.P.U.L.A.R. acknowledges that some modifications to the existing regulations will result from the process, the DNR has to educate its involved staff members that compromises to accommodate issues important to lakeshore property owners must be forthcoming;
• the need to factor all implications of new regulations in arriving at a final draft to be submitted for consideration by the Commissioner of the DNR, including the impact the regulations will have on commerce, property values, property taxes and government services that rely on those taxes; and
• the propriety of "grandfathering" private structures that were lawfully acquired and first utilized before the adoption of regulations that restricted them.

As noted above, I am including (without editing) a few of the comments that were posted on the Star Tribune's website after an article appeared Saturday reporting on a proposal to charge a fee to use public landings. Note the indications after each as to how many readers approved of the particular comment. P.O.P.U.L.A.R. faces the same criticism of its lakeshore property owner membership. The political pressure brought to bear on elected officials, and DNR staff, by the visiting public, has to be considered when building a record upon which regulations must rely.

When you've completed reading the comments below, please consider joining the generous P.O.P.U.L.A.R. members who have stepped up in the absence of lottery revenue and helped fund our efforts. There's a lot of work that still needs to be done to protect our interests. Thank you for your support.

DOCK FEE
Minnetonka needs a dock fee for homeowners, they take up too much of the PUBLICS open water. Lets start at $1,000 ft for every foot over say 8ft in length, thats per season if you have a permanant dock space as in year round lets make it $10,000 a year, of course this is all subject to if you get a permit or not and the permit isn't free. inspections for contaminant run off from your property will be factored in also, can't have that fertilizer getting in the waters. special regs for boat lift size and boat size, swimming raft regulations with seperate fees they should be pulled to shore every night for safety. No new construction within 1000 ft of the shoreline high water mark, no more contruction with less than 500 ft of the next home, 500 ft minimum and on and on and on
posted by k57pulbuf on Jan. 24, 09 at 7:44 PM
23 of 29 people liked this comment.

The basis of their concerns.
I suggest that Minnesota take back our lakes from the people that have ruined them with their developments. Face it, lakeshore development is bad for lakes. I suggest Minnesota return the lakeshore to its natural state by disallowing any mowing, cutting, clearing, building, cleaning, docks, or beach maintenance within 100 feet of the high water mark. You get the picture. And make it a law that allows public access within that 100 foot lake enhancement area. If the so called "lake association" actually cared about the lake the live on they would all jump at the chance to support those kind of regulations. Sad to say though, I think mostly they use environmental concerns to cover up their desire to protect their own selfish interests and privacy.
posted by xsnowdog on Jan. 24, 09 at 9:32 PM |
19 of 24 people liked this comment.

If you benefit, you pay. If you don't benefit, you dont pay.
This is a no brainer. If you use the lake, you pay. Property owners, boat owners, snowmobile owners, ice fishing, if you want the benefits of the lake, then pay. If you want to enjoy having a flat screen tv, then you pay, not the tax payer. The lake shore owners and users of the lake can afford the property and toys, so asking them to support this lifestyle is fair.
posted by deephaven10 on Jan. 24, 09 at 9:41 PM |
12 of 22 people liked this comment.

There is already a fee. The water craft registration.
There is an aquatic species surcharge that is built into the water craft registration fee. http://www.dnr.state.mn.us/licenses/watercraft/index.html This is a state resource that should be handled as all other Minnesota lakes are. What sets it apart is the affluent community that surrounds it. Perhaps they should suggest levying a waterfront property tax to pay for this? If this is really such a problem, why not increase the invasive species surcharge?
posted by ztrvz on Jan. 25, 09 at 12:18 AM |
22 of 23 people liked this comment.

I propose a fee on docks and boat stored on public waters. This keeping a dock on public waters is quite a benefit for private individuals. We could charge by the foot, so the worst offenders pay more. There are more than 100 lakes infected with milfoil in Mn. Are we going to charge a fee on all of them? As a fisherman, I don't mind the milfoil. It has made bass fishing even better. If they want to charge a fee to launch, then the DNR should charge homeowners to keep stocking the lake with taxpayer's fish.
posted by libsridiots on Jan. 25, 09 at 8:31 AM |
13 of 15 people liked this comment.

DISCRIMINATORY TAXATION
If a ramp tax is levied on those who use the lake intermittently then it's only appropriate that homeowners and businesses on the lake are taxed accordingly. One cannot simply say "I want to live on the lake or do business on the lake but I want soneone else to pay for taking care of the lake."
posted by fredappl on Jan. 25, 09 at 11:00 AM |
5 of 7 people liked this comment.

Oh My...How Exclusive!
Why not regulate the residential dock situation more closely and raise the fines on homeowners that have more watercraft tied up to their docks than is legally allowable or violate lakeshore degradation laws? That would raise these "needed" funds in a heartbeat.
posted by smchange on Jan. 26, 09 at 1:16 PM |
2 of 3 people liked this comment.

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