Feb 19 Meeting with DNR

As noted in an earlier post, I had the opportunity to meet on Tuesday, February 19th, with Assistant Commissioner Larry Kramka at the DNR to discuss the issues concerning P.O.P.U.L.A.R. members. Prior to the meeting, I sent Assistant Commissioner Kramka a copy of all of the comments posted on the P.O.P.U.L.A.R. blog and he had familiarized himself with the information prior to our meeting.

At the outset, both of us made it clear that there was no point in meeting just to pay lip service to one another's point of view. By the end of a frank, two-hour discussion, I left with a commitment that the DNR would review the 2008 General Permit to find a solution to help the DNR manage appropriately for P.O.P.U.L.A.R. AND the with the broader values of the State in mind. I received no promises. But Assistant Commissioner Kramka ended the meeting by stating, "the challenge is coming up with a (dock platform size) number that makes sense at all levels and we may not be there now."

Here's what happened in between.

Assistant Commissioner Kramka reiterated that the General Permit did not change existing regulations on dock sizes. Rather, from the DNR's point of view, it enhanced entitlement from 8 feet maximum width to up to 170 square feet of space. After acknowledging that there needed to be better communication with DNR staff encouraging special permitting where warranted, Mr. Kramka thought that lakeshore property owners with a need for a dock platform larger than the General Permit allowed should be furnished with qualifying criteria, given a sense of the likelihood of receiving a special permit and, if appropriate, issued special permits. Qualifying criteria would include the existence of ADA issues, shoreline configuration that precluded lake access absent a platform, legacy docks in place (annually) for an extended period of time and others yet to be determined.

Mr. Kramka also identified several issues that the DNR would need to address in modifying the 2008 General Permit.

1. What is the justification for setting a new maximum size beyond the current 170 square feet? Would the DNR just be picking another number out of the air? Justification is important because the change has to be defended and there are already rumblings from the legislature that the DNR should not have "legalized" even 170 square foot dock platforms.

2. How can the DNR administer a new regulation that grandfathered in pre-existing dock platform structures (which I referred to as "Legacy Docks")? One of the purposes changing the regulations on docks in 2002 and of issuing the 2007 and 2008 General Permits was to take the DNR out of the permitting business. A new regulation that allowed Legacy Docks would have to include some way of verifying entitlement without being overly cumbersome.

3. How do the regulations on dock platforms tie into concepts of lakeshore management? Senator Mary Olson has been making the point that the DNR should not allow lakeshore owners to trade decks on land that lack adequate setback for "decks" over the public waters.

With respect to #1, I had proposed language for a Legacy Dock Permit that would allow lakeshore owners with dock platforms of up to 250 square feet installed before January 23, 2008, to retain the right to install the same sized dock platform and pass that right on to subsequent owners of the property. The language also mandated that persons with a legitimate need for a larger platform be issued a special permit. Unless I get to make the decision, we're never going to get anything larger than 250 square feet included under the umbrella of a general permit. I pointed out that by expanding the base entitlement to up to 250 square feet, most dock platform owners would be included within the scope of the Legacy Dock Permit and reducing the need for permitting.

With respect to #2, I suggested that applications for a Legacy Dock Permit be accompanied by a photograph of the previously installed dock platform configuration. Nearly everyone has one; those who don't can certify that the legacy dock qualifies. We take citizens at their word on a number of issues; I see no reason not to do so with respect to the Legacy Dock Permit.

The lakeshore management issues Mr. Kramka expressed concern about (#3) need more study. While I understand that there are those who would put more restrictions on riparian property owners' allowed impact on the shoreline in exchange for an enhanced presence over the public waters, P.O.P.U.L.A.R. members are adamant that the government not be allowed to increase regulatory impact absent a demonstrated need. I made it clear that one of P.O.P.U.L.A.R.'s main concerns is over the perception that there is incremental encroachment of lakeshore owner rights, as evidenced by the inclusion of the (thus far) voluntary Aquatic Impact Area in the 2008 General Permit.

Assistant Commissioner Kramka and I spent a lot of time describing the justification for grandfathering dock platforms larger than allowed in the 2008 General Permit. I indicated that I thought the minimal publicizing of the adoption of the 2002 regulations and the subsequent lack of enforcement undercut the reluctance to "reward illegal behavior" by grandfathering dock platforms installed since 2002. Mr. Kramka felt that the DNR's efforts to include the public in rules changes had been adequate, but was not concerned about prior conduct in determining the propriety of grandfathering.

In response to questions about the scope of the problem, I committed to undertaking a survey (some of you will receive an e-mail from me on this subject) and to working with the DNR to address the difference between the DNR's anecdotal evidence that only 10% of the docks exceed the limits of the 2008 General Permit and P.O.P.U.L.A.R.'s estimates that 60%+ of the dock platforms will be non-conforming. I also used the opportunity to point out that if, in fact, it's a 10% problem, then grandfathering should be no big deal since there wouldn't be enough dock platforms to have any aggregate negative impact.

We agreed that this is a bi-partisan issue and not one of haves and have-nots. We discussed the propensity for some lakes to have a proliferation of dock platforms and others not. We discussed the issue of property taxes as it relates to limiting the use and enjoyment of lakeshore property. I argued, using two 8.5 x 11 pieces of paper (one turned sideways), that two identically sized lots with identical residences properly set back will have different tax assessments based on the amount of shoreline owned and based on the longer shoreline is allowed more access to the lake. If the DNR imposes regulations that limit use and enjoyment of the lake so that the two properties in my example have the same amount of shoreline available to each of them, the property taxes on the longer shoreline ought to be reduced. I stated that since property taxes would never be reduced, the restrictions should not be imposed. Mr. Kramka argued that the longer shoreline resulted in more valuable property because of the privacy benefits it afforded the owner.

Enforcement was also discussed. While the county attorney in Crow Wing County has yet to respond to many inquiries from P.O.P.U.L.A.R. members about his intent to prosecute "violators," the Cass County prosecutor's office has notified the DNR in writing that it will fully enforce the dock regulations in existence and prosecute any violators identified by the D.N.R.

Throughout the meeting, Mr. Kramka expressed a desire to find a way to "dial back" the emotions engendered by the public's awakening to the regulation of dock platforms. As noted above, he was not in a position to promise anything specific and awaits the results of a survey I agreed to conduct. He expressed a desire to have the matter resolved prior to the start of the 2008 dock season. We agreed to speak at the end of the week and determine if specific middle ground can be arrived at.

Watch for an e-mail from me asking you answer some survey questions. If you don't get one, don't worry. We're looking for some particular information on the impact of the 2008 General Permit that doesn't apply to most shoreline owners.