Monday, April 7, 2008

2008 Dock Season Approaches: Time to Wake the Sleeping Dogs


After an admittedly too long hiatus, it is time to address a number of pressing issues facing P.O.P.U.L.A.R. members as the public’s ice becomes the public’s water once again.

Over the past several weeks, since writing about my testimony before the Senate Environment and Natural Resources Committee, I’ve been monitoring Senator Mary Olson’s legislation. I’ve also had the opportunity to meet again with Assistant Commissioner Larry Kramka from the D.N.R. to get a feel for what lakeshore property owners can expect from the D.N.R. this season with respect to dock platforms. Finally, I commenced communications with the D.N.R. official overseeing shoreline management rulemaking to make sure that if Sen. Olson’s bill passes, and rulemaking impacting P.O.P.U.L.A.R. members’ interests is commenced in connection with existing shoreline management rulemaking, P.O.P.U.L.A.R. would have a seat at the table and an opportunity to shape future regulations. We joined the D.N.R. in opposing combining shoreline management and public waters rulemaking. As of this writing, those efforts have proven successful. As noted below, there will be no rush to judgment on new rules governing lakeshore property owners’ use and enjoyment of their lakeshore.

One thing appears certain: many of our legislators still lack a clear understanding of the disastrous impact on Minnesota’s economy, property values, and way of life that is sure to result if Senator Mary Olson’s supporters succeed in controlling future rulemaking. Environmental extremists, like “aquatic biologist” Dann Siems, who won’t tolerate even the restrictive 2008 general permit criteria for dock platforms, are determined to turn the entire state into a quasi-BWCA. Mr. Siems harps incessantly on the need to return to the concept of allowing no more than “minimal impact” on Minnesota’s lakes by humans. According to one of his colleagues on the D.N.R.’s 2007 Dock Advisory Committee, Mr. Siems’ idea of minimal impact is one 3 foot by 10 foot dock section per lake lot. While I haven’t personally heard him admit to such a restrictive view, my sense from his public comments and his blog is that this is closer to the truth than our legislators are aware.

This is no longer about the size of dock platforms. Upcoming rulemaking will address a wide range of issues surrounding private structures on public waters, including the number and size of docks, the exclusion of boat lifts, the elimination of boat slip canopies and, ultimately, the number of boats lakeshore property owners are allowed to keep on the public waters. Mr. Siems and his cohorts are determined to mandate enforcement of the Aquatic Impact Area (“AIA”) now merely suggested in the 2008 General Permit. Under the AIA, any intrusion on more than 50% of the length of a lot owner’s shoreline, up to a maximum of 100 feet of access, will be illegal. For example, lakeshore property owners with 60 feet of shoreline will be allowed to “impact” only 30 feet. Any aquatic activities, including swim beaches, dock configuration, mooring, accessory (i.e., boatlift) installation will all need to occur/exist within the 30 feet width. Property owners with 200 feet of shoreline will have to limit their access to the same 50 feet as allowed to a property owner with 100 feet of shoreline, notwithstanding the premium in taxes assessed for the remaining, unusable, 150 feet of shoreline.

Accepting for the moment that Governor Pawlenty and our legislators are apparently willing to abdicate responsibility for protecting the interests (i.) of lakeshore property owners and (b.) of small business owners whose ability to sustain payrolls and support the economy is dependent on maintaining reasonable regulation of the lakes, it is up to P.O.P.U.L.A. R. to make absolutely certain that rulemaking takes into account our legitimate interests as stewards of the public waters. The days of covert rulemaking that pays mere lip service to the public’s right to input are history if, and only if, P.O.P.U.L.A.R. members are willing to unite and support a loud and clear opposition to any additional infringement of our use and enjoyment of our lakeshore property.

I apologize for the lengthy introduction. However, after a few weeks off the public soapbox, it is important to make it very clear what P.O.P.U.L.A.R. members are facing. Speaking of “public”, this blog is now being read by a number of persons opposed to P.O.P.U.L.A.R.’s agenda. While I welcome converts to our cause, I need to exercise caution in discussing strategies. The governing board structure being implemented to actively pursue P.O.P.U.L.A.R.’s goals, discussed below, will facilitate our ability to operate with some modicum of discretion in broadcasting our plans.

Where We Are in the Process

The public pressure brought about by P.O.P.U.L.A.R.’s advocacy, including the hundreds of communications generated by P.O.P.U.L.A.R. members, has resulted in significant concessions by the D.N.R. on how dock platforms will be handled pending the promulgation of new rules. While not perfect, I believe we have a solution that will be workable for most members.

The D.N.R. is unwilling to modify General Permit 2008-0401 to include dock platforms larger than 120 square feet (170 square feet including the last dock extension). However, Assistant Commissioner Larry Kramka has assured me that lakeshore owners whose platform configuration does not fall under the protection of General Permit 2008-0401 and who, under existing regulations, apply for a special permit will receive a meaningful review of the permit in light of the lakeshore owner’s particular situation. More significantly, Assistant Commissioner Kramka agreed that property owners whose dock platform configurations pre-date the 2004 boating season (when the new regulations first went into effect) can point to that fact to justify the issuance of a special permit and that the D.N.R. will be inclined to look favorably on that fact. Finally, we were assured that the decision on whether or not to issue a permit will be reviewed at upper levels of D.N.R. management, not at the local level as before. If it turns out that slightly increasing the total platform size allowed under General Permit 2008-0401 to up to 250 square feet will eliminate the need for most of the special permit applications, the D.N.R. will consider it, based on actual experience, since they do not want to be in the permitting business.

If adhered to, particularly as it relates to “legacy docks”, this compromise should address most P.O.P.U.L.A.R. members’ concerns. Other issues that will impact the availability of special permits include matters of safety and lakeshore geography.

Permits are available online. Click here to be directed to the D.N.R.’s website to obtain a permit form. For general information about the need for a permit, click here.

The uproar that developed once dock platforms replaced invasive species, reckless boating, overcrowding, over-fishing and receding shorelines as the D.N.R.’s main concern make it clear that the Department will eventually proceed with new rulemaking. Senator Mary Olson had proposed that the rulemaking take place in conjunction with the shoreline management rulemaking approved last year and commenced in January. Mindful of the problem’s P.O.P.U.L.A.R.’s member had had in the past with insufficient public input into the rulemaking process, I opposed the fast-track approach in my testimony before the Senate Environment and Natural Resources Committee last month. I followed it up with a letter to the State and Local Government Operations and Oversight Committee, which reviews proposed legislation involving rulemaking (excerpted here):


I testified before the Environment and Natural Resources Committee on Wednesday and expressed our concern that any rulemaking undertaken be broad enough in scope and duration to address all of the scientific, social and economic issues raised by efforts to limit lakeshore owners’ access. While many have characterized this as a debate over the size of dock platforms, P.O.P.U.L.A.R. members are even more concerned by the public pronouncements of supporters of S.F. 3237 that suggest that the size and number of allowed boats, boat slips, docks and accessories be severely reduced.

For this reason, it is critical that the process for any new rulemaking on structures in public waters not be curtailed in any way. For this reason, too, P.O.P.U.L.A.R. joins with the DNR in opposing S.F. 3237 as passed out of Environment and Natural Resources. P.O.P.U.L.A.R. believes that rulemaking undertaken in conjunction with ongoing shoreline management rule-making will create an “apples and oranges” situation, trying to address both matters within the jurisdiction of local communities (shoreline management) and the DNR (public waters). Moreover, the highly controversial nature of public water rulemaking, with its potential for resulting in a taking of property rights, would either drain limited resources from shoreline management rulemaking hearings or find the DNR without sufficient financial and personnel wherewithal to provide adequate consideration of the many issues associated with the public waters.

Through our efforts and the supporting testimony of the D.N.R., S.F. 3813, the Omnibus Appropriations bill, incorporated Senator Olson’s original bill in the following form (Article 10, Section 17):

105.5 Sec. 17. DEPARTMENT OF NATURAL RESOURCES RULEMAKING
105.6 REQUIRED; STRUCTURES IN PUBLIC WATERS.
105.7 By June 30, 2011, the commissioner of natural resources shall update rules on
105.8 structures that are allowed in public waters and the permit requirements for those
105.9 structures under Minnesota Rules, chapter 6115. The Department of Natural Resources
105.10 general permit no. 2008-0401 expires on the effective date of the updated rules.
105.11 EFFECTIVE DATE. This section is effective the day following final enactment.

The obligation to hold rulemaking in conjunction with shoreline management rulemaking has been removed and the D.N.R. was given until June 30, 2011 to adopt new rules. There is no similar language in any House legislation. Therefore, the issue will need to be worked out in a conference committee and we can’t be sure the mandate to fast track public waters rulemaking won’t be reinserted into the final bill. Protecting P.O.P.U.L.A.R. members’ interests in this area is on the to-do list described below.

Where We Need to Be

Assuming that rulemaking will not take place until 2009-2010, we have time to organize to make sure that the effectively covert manner in which the 2003 rules were adopted is not repeated. It’s ironic that no one seems happy with the 2003 rules. From P.O.P.U.L.A.R.’s point of view, the 2003 rules ignored historic uses of docks to facilitate use and enjoyment of lakeshore and were acceptable only so long as they were ignored by the D.N.R. and other’s charged with overseeing compliance with the regulations. From Dann Siems and colleagues’ point of view, the 2003 regulations are too liberal since they do nothing to limit the overall impact lakeshore owners have on the public waters and do not restrict overall dock linear footage or the permissible number of boats, boatlifts, canopies and other accessories or the amount of lakeshore property owners are allowed to impact. From the D.N.R.’s point of view, the regulations do not achieve the goal they sought, i.e., not being responsible for issuing thousands of permits to property owners installing docks.

Up until now, a couple of lakeshore owners have spent $17,000 funding P.O.P.U.L.A.R.’s efforts to push back the D.N.R. and opponents of dock platforms. In order to effectively address the issues of forthcoming rulemaking, P.O.P.U.L.A.R. needs to prepare to influence each of the issues that will be subject to regulation under the guise of controlling public structures on public waters. Unfortunately, this is an expensive process since there is a critical need to effectively communicate the issues to hundreds of thousands of lakeshore owners statewide. In addition to funding ongoing lobbying efforts, we need to
a. organize formally as a non-profit;
b. fund research into the science of aquatic impact;
c. fund research into the economic impact of any proposed restrictions, including the impact on commerce and on property values;
d. develop a uniform process for challenging property tax assessments on real estate devalued by any effective taking;
e. fund a public relations campaign to make it clear to ALL lakeshore property owners, on a regular and repeated basis, that this is not merely a discussion of dock platform size and that significant property rights previously taken for granted are at risk;
f. establish an advisory board of governors to oversee and guide the direction of the organization and approve expenditures on its behalf;
g. establish town meetings for P.O.P.U.L.A.R. members around the State in order to make sure the message is being disseminated and that valuable input is being received; and
h. develop means, through voter awareness and, potentially, a Political Action Committee, to educate elected officials about the true consequences of the seemingly politically safe support for smaller dock platforms.

To get things going, persons interested in serving on a board of governors should send me an e-mail to that effect, including information that would be helpful in making a decision. We would like to mount a billboard campaign as soon as possible to raise general awareness, particularly among lakeshore owners who think that they’re safe because they don’t have a dock platform. We have a preliminary estimate from a public relations firm that outlines a plan of action between now and mid-summer. The plan includes advertising, printing, billboards, rallies, and other means of creating public awareness. All told, we can easily spend $100,000 just on the public relations efforts. Finally, we expect to have our first gathering on Gull Lake early this summer to review our progress and identify future needs.

A gratifying number of you have already inquired about supporting P.O.P.U.L.A.R. financially. Today, you get your wish. In order to achieve our goals, P.O.P.U.L.A.R. members are asked to contribute to support our ongoing efforts. There is no fixed amount being requested. However, it appears that it will require a six figure commitment to adequately fund all necessary efforts and costs that will be incurred through the end of rulemaking in 2010. This is separate from any contributions to a PAC, should one be established. If everyone were to contribute $2-5 per foot of shoreline owned, we would be well on our way to meeting the needs of P.O.P.U.L.A.R.’s membership and carrying their message to our public servants. Checks can be made out to P.O.P.U.L.A.R. or to Stern & Associates P.L.L.C. Trust Account. The donations will not be tax deductible as a charitable contribution. Consult your accountant as to deductibility as a business expense where appropriate.

Please contact me with any questions. E-mail (pick one: samuel.stern@gmail.com, sstern@mplslaw.com, or protectlakes@gmail.com) works best. However, as of April 15th, I am returning to the full-time practice of law, including governmental relations. I will have a new office address and checks and correspondence should be sent there instead of the Independence address:

P.O.P.U.L.A.R.
c/o Samuel L. Stern
Stern & Associates P.L.L.C.
247 Third Avenue South
Minneapolis, MN 55415
Tel: 612-333-0102
Fax: 763-201-7899


In the meantime, please let your legislators know that you strongly urge them to retain the language quoted above in S.F. 3813 (Article 10, Section 17) and that any rulemaking on structures in the public waters needs to be undertaken independently of other issues. The D.N.R. has stated that it will be able to absorb the costs of public waters rulemaking without any separate appropriation if allowed to wait until the next biennium. Therefore, if nothing else, it’s fiscally responsible to support the language in S.F. 3813. Write, e-mail or call their offices. As always, keep it accurate and keep it clean. Here's the link to information on contacting your representative: http://www.leg.state.mn.us/leg/Districtfinder.asp

Thanks for your patience and support.

P.S. to Dann Seims regarding your comment about my “ignorant arrogance”: sticks and stones, Pal.

5 comments:

Dann Siems said...

For anyone interested, here are some papers relevant to the cumulative impacts of docks and accessory structures. There are also numerous additional references cited within these works.

Bryan, M.D. & Scarnecchia, D.L. 1992. Species richness, composition, and abundance of fish larvae and juveniles inhabitating natural and developed shorelines of a glacial Iowa lake. Environmental Biology of Fishes 35: 329-341.

Garrison, P.J. and others. 2005. Effects of pier shading on littoral zone habitat and communities in Lakes Ripley and Rock, Jefferson County, Wisconsin. Wisconsin DNR PUB-SS-1006 2005.

Genkai-Kato, M. 2007. Regime shifts: catastrophic responses of ecosystems to human impacts. Ecological Research 22: 214-219.

Jennings, M.J. and others. 1999. Cumulative effects of incremental shoreline habitat modifications on fish assemblages in north temperate lakes. North American Journal Fisheries Management 19: 18-27.

Radomski, P. & Goeman, T.J. 2001. Consequences of human lakeshore development on emergent and floating-leaf vegetation. North American Journal of Fisheries Management 21:46-61.

Anonymous said...

We're awake and glad you weren't snoozing. Thanks for meeting all those challenges.
Take all the time you need between postings and omit details; one aquatic biologist might someday realize he doesn't know as much as he thinks he does. Too bad that he seems so filled with hate and makes such nasty remarks. I apologize for him as he is currently incapable of understanding that his behavior and language is abusive, rude, and wrong.
You make our points so well, I am certain you will
get your needed support, and docks and lakes will continue to complement each other. The minnows and full-grown fish are thick around my dock and platform end, and the term "aquatic impact" can have lots of positives rather than a negative connotation; perhaps the ultimate course of action will be to add docks rather than remove them!

Anonymous said...

I'm at a lose for words when I sit back and read all the information the DNR has thrown at us. This coming from someone who has a degree in Aquatic Biology, but who's business is to install docks and lifts in and around the Brainerd Lakes Area. That has been my business now for 20 years now and counting.
I grew up living on a lake and spend more time in a given year on or around docks than most could even dream of. With this I get to see first hand the actual "aquatic impact" that docks are having on the lakes and the changes that have occured on each individual customers shoreline on many of the surrounding lakes. I've witnessed large expanses of shoreline that have gone from pure sand to 4-6inches of silt across the entire stretch. This was in an area that had very small docks across it's length and zero large boats. One needs to look no further than the mansive shoreline erosion that occures each year as to it's cause.
Are docks the main issue when it comes to minimizing the impact we are having on our lakes? No, in my opinion it has more to do with the 'recreational toys' and boat useage that is causing the problems. Show me a dock that has rampant weed growth and other associated problems and I'll point out the boat(s) or other recreational vehicles that are directly to blame for this.
The DNR should be looking more so at limiting the boat size that is allowable on each individual lake. The bigger the lake the bigger the allowable boat that is premitted on it.
Educating homeowners and the public in general as to what causes these problems would be a good place to start. An 8 foot motorhole behind each one of your boatlifts should be a fineable offense. But then again powering your boat on to the trailor at a public access should be also.
Although it hits me right in the pocket I do agree with limiting the size of dock platforms. No one needs a dancefloor over water. But then again 120square feet or 170 with the end section just isn't big enough either. I lean more towards 250square feet (5-5x10 sections including end section) per platform. The legal changes just now being addressed have been in the books now since when? 1960's? And the DNR has just now decided to start to enforce them? Why? He who yells the loudest gets the most attention. This was brought about by a few indiviual lakeshore property owners who didn't like looking at docks when viewing the water and yelled loud enough to finally be heard and it now has everyone spinning in circles.
If someone has a good answer to tell all my customers who call me asking how these changes are going to affect them now and in the future please let me know...

Sam Stern said...

If the dock installer who posted on Sunday morning (April 13th) would send me an e-mail identifying him (or her) self, I'd like to follow up. When you post anonymously, I have no way of knowing the source. Look forward to hearing from you. Thanks. Sam (samuel.stern@gmail.com)

Anonymous said...

The dockman has some excellent points.
I believe it's more the horsepower of the motors that's responsible for upheaval of the lake bottom and the silt that drifts to the shallow water and beaches. The DNR has studies to corroborate this. I contacted boat manufacturers a number of years ago regarding boat wakes and how destructive they are. Not solely the size of the boat, but the hull design, how heavily it's loaded (number and weight of people too), and primarily the speed and horsepower of the motor over irregular depths and lake structure are responsible. The variables are compounded by lake size and continuous action, like the tendency to ski or jetski over and over in circles ("look at me!!") or runs, which keeps the lake so stirred up that the wakes and waves push the bottom particles to shore. Only a handful of boaters maintain a no-wake speed in the area close to shoreline and docks, and wakes from boats are far-reaching and a key factor in erosion. The boat manufacturers do recommend larger motors for larger boats (the bigger they are, the more damage they can do). They are not often operated with courtesy for public or private property where the waters are shallow. They should have a lake map so they have no excuse.
Docks aren't the problem, it's Careless Boaters.
How good it is to have a combination aquatic biologist/dockman with whom I can agree!