Wednesday, May 21, 2008

Legislative Wisdom (?) and Accelerated Rulemaking

The 85th Session of the Minnesota Legislature has adjourned, but not before legislators turned up the heat on Minnesotans who own lakeshore property.

Contrary to earlier reports and expectations, rulemaking on “structures in public waters”, i.e., docks (with and without platforms), boatlifts, canopies, etc., must be completed by January 15, 2010, a year earlier than previously contemplated. The Legislature actually appropriated $100,000 for the D.N.R. to use in 2009 to conduct this expedited rulemaking, even though D.N.R. representatives had testified that no additional funds would be needed if the deadline for rulemaking was set for 2011.

Under the legislation adopted, D.N.R. general permit no. 2008-0401, authorizing exceptions to existing regulations’ 8 foot wide limit on dock structures, expires on the effective date of the updated rules. Accordingly, unless P.O.P.U.L.A.R. succeeds in pushing back against the “public waters lobby” during the 2009 rulemaking process, lakeshore property owners will see even 120 s.f. dock platforms outlawed and, in all likelihood, witness a significant curtailment in the “impact” they are allowed to have on the public waters lapping up to their private shoreline.

Rulemaking Advocacy Practice
P.O.P.U.L.A.R. members anxious to help start the process of protecting lakeshore owners’ property interests have an opportunity to make themselves heard in public forums even as we wait for next year’s rulemaking. Currently, the D.N.R. is engaging in rulemaking on shoreland management. Click here for a link to the D.N.R. file with a schedule of the 12 upcoming open houses taking place between June 3 and June 25.

The first open house takes place at the Minnetonka Community Center, adjacent to City Hall, on Wednesday, June 3rd, from 6:30 to 9:00 p.m. The meeting in Brainerd is scheduled for June 17th in the Northland Arboretum.

The shoreline management rules govern development, construction, setbacks, impact, structures as they apply to lake shores. Traditionally, the D.N.R. has worked with local jurisdictions to determine appropriate shoreline management based on local considerations. Shoreline management rules govern impact on the lakes from the point of view of the land.

This approach is contrary to the D.N.R.’s involvement in setting standards for public waters, i.e., governing impact on the lakes from the point of view of the water. When regulating the “public waters”, D.N.R. does not rely on the input from local jurisdictions, except where it has delegated some authority to a local organization like the Lake Minnetonka Conservation District (LMCD).

P.O.P.U.L.A.R.’s efforts have been focused on public waters regulation, the scope of which includes docks, platforms, boatslips, etc. However, as P.O.P.U.L.A.R.’s members are also impacted by shoreline management rulemaking, and since there are issues common to both concerns, we believe P.O.P.U.L.A.R. members should make sure that shoreline management rulemaking gatherings, including upcoming open houses to solicit the public’s input and provide a background on the process, are well attended. Shoreline management and public waters management may be apples and oranges, but they’re both fruit.

P.O.P.U.L.A.R. members attending the D.N.R. open houses should insist on receiving clarification on the relationship between new shoreline management rules and forthcoming rulemaking on structures in public waters. Recall that, under the existing general permit, lake shore property owners are encouraged to observe an “aquatic impact area”, limiting their use of their lake shore to the lesser of 50 feet or one half the length of their shoreline. Currently, observance of the “aquatic impact area” suggestion is at the discretion of the lakeshore owner. Will new shoreline management rules mandate observance of an “aquatic impact area”?

What about the impact of limitations on usable shoreline on property values and resulting property tax assessments? Assuming sufficient support from its members to actively participate in D.N.R. rulemaking, P.O.P.U.L.A.R. intends to challenge the propriety of allowing jurisdictions to continue to assess property taxes at a premium based on the length of shoreline if, in fact, rules are implemented that relegate excess shoreline to the status of the same eye candy available for free to the general public. The government should not be allowed to deny property owners the use of more than a standardized fixed amount of shoreline at the same time it imposes property taxes as if the limitations were not in place. Open houses to discuss shoreline management rulemaking provide an excellent opportunity to start that dialogue since local governing bodies will be in attendance.

By being a vocal part of the shoreline management rulemaking process, P.O.P.U.L.A.R. members will send a signal to the D.N.R. that next year’s rulemaking on public waters issues must protect the legitimate interests of lake shore property owners. There will be no railroading of new restrictions on the use and enjoyment of lakeshore property or the accessories necessary for that enjoyment.

Because the rulemaking process of most interest to P.O.P.U.L.A.R. members has been moved up a year, it is even more imperative that P.O.P.U.L.A.R. members support our efforts by making a donation to fund research, both as to scientific and economic issues, publicity, needed to inform everyone with lakeshore property, whether or not they own a dock platform, that restrictive rules need be opposed, and advocacy, making the case for P.O.P.U.L.A.R. members before elected officials and appointed bureaucrats. Please click on the “Donate” button at the top right corner of this blog and be part of the effort to protect P.O.P.U.L.A.R. members’ interests.

Permit Applications
On a related matter, we are continuing to monitor the willingness of the D.N.R. to issue special permits for those lakeshore property owners who have dock platforms that exceed the limitations of the general permit. Assistant Commissioner Larry Kramka still insists that D.N.R. policy in our current environment is to consider justifications proposed in special permit applications, particularly where dock configurations have existed for many years prior to the adoption of existing regulations in October, 2003, and not dismiss applications out of hand, as had been the case up until now.

In discussing the reluctance of local hydrologists to issue special permits as reported by some P.O.P.U.L.A.R. members, Assistant Commissioner Kramka suggests that special permit applicants try to work through any concerns with the hydrologist before submitting the completed permit.
The list of area hydrologists is available by clicking here.

However, if need be, permit applicants should contact the hydrologists area supervisor to seek a solution. Click here to be directed to a link listing the area supervisors that should be contacted if there is an impasse with a local hydrologist. Although Assistant Commissioner Kramka made it clear that not everyone would be issued a special permit, there is a sense that as applicants work up the management chain at D.N.R., they will find more awareness of and responsiveness to the issues confronting legacy dock platform owners. Other special needs, including health and safety concerns and family size, should be considered in addition to the historical use of dock platforms.

Finally, special permit applicants should not submit the application until they have reviewed it with the local hydrologist and, if need be, upper management, to verify that the application is complete and has some chance of being approved. Once the special permit application is received by the D.N.R. and determined to be complete, the D.N.R. will invoice the applicant for the $150 fee. The fee should not be submitted beforehand. Once a special permit is issued with respect to a particular dock platform configuration, it remains in effect for so long as the circumstance justifying its issuance continues. There is not need to reapply on an annual basis.

We are in the process of pursuing several special permits on a test basis. We will not tolerate accepting lip service from the D.N.R. nor, for that matter, from Governor Pawlenty, who has the power to direct the D.N.R. to follow through on allowing reasonably-sized legacy dock platforms to receive permits. Please keep us advised of any particular difficulties you are experiencing in efforts to obtain a permit. Also, should you decide to risk being cited by not applying for a permit, be sure to let us know what enforcement actions, if any, are being taken by the authorities.

As always, thank you for your support. Special thanks go out to the individuals who have already sent in checks or made donations through PayPal by clicking on the "Donate" button. I look forward to meeting many of you in person at the shoreline management open houses.

-Sam Stern

The race is on to regulate the public water. Be a participant!

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