Friday, September 19, 2008

D.N.R. Rulemaking on Docks, Boatlifts and Platforms has Commenced

As anticipated, the Department of Natural Resources has commenced the rulemaking process in connection with “possible amendments to the rules governing structures placed in the Public Waters.” As regular followers of P.O.P.U.L.A.R. communications know, structures in public waters includes private docks, boatlifts, boat canopies and dock platforms. In fact, Minnesota Rules Part 6115.-0170, subpart 37, defines "structure" as any building, footing, foundation, slab, roof, boathouse, deck, wall, dock, bridge, culvert, or any other object extending over or under, anchored to, or attached to the bed or bank of a public water.

Click here for a link to the DNR's web site announcing the new rulemaking and to sign up for e-mail updates on the process from the DNR.

The purpose of this blog is to initiate a process with P.O.P.U.L.A.R. members to organize an effective campaign to (a) prevent amendments to existing rules which will further restrict lakeshore owners’ use and enjoyment of their property and (b) incorporate a grandfather provision into any rule amendment, acknowledging the prior, lawful impacts lakeshore owners have been allowed to have on public waters.

As I have indicated in past communications, the failure of lakeshore property owners to respond to prospective government encroachment will result in government encroachment.

While lakeshore owners have managed to survive another summer without undue DNR interference with the use of their property, this may well be the calm before the storm. As expected, the DNR chose not to enforce regulations or cite property owners whose dock platform configurations exceeded the 120 s.f. allowed. What was not expected was the refusal of local hydrologists to consider the legacy of individual’s dock platform configurations when responding to the application for a special permit. Despite assurances from an assistant commissioner of the DNR, and the observation by Governor Pawlenty that grandfathering “legacy docks” was a good compromise, the local bureaucrats generally refused to issue special permits, even for property owners whose use pre-dated current regulations.

This summer’s experience set the stage for addressing DNR rulemaking. We have learned that unless protections, like the allowance of legacy dock configurations, are incorporated into the rules, we cannot count on obtaining variances, even for legitimate reasons. If the Governor’s public stance and a compromise reached with senior DNR management are insufficient to persuade bureaucrats responsible for carrying out policy to issue special permits allowing variances, then we have to insist incorporating a mandate for variances into any new regulations.

Besides the struggle of attempting to persuade an intransient DNR that property owners have rights worth protecting, P.O.P.U.L.A.R. faces the challenge of reaching lakeshore property owners throughout Minnesota to advise them of the intent of those clamoring for more restrictive regulations. The self-proclaimed protectors of the environment have announced their intent to push for regulations that limit (i.) the total amount of dockage (whether or not there is a platform at the end), (ii.) the use of boatlifts, (iii.) the use of canopies and, of course, (iv.) the use of platforms. This should be a matter of great concern throughout the State. Although the media has characterized this as merely a spat over the size of “party docks”, the regulations sought by P.O.P.U.L.A.R. opponents through new rulemaking would potentially impact every Minnesota lakeshore property owner.

In order to address the problem, P.O.P.U.L.A.R. hopes to have the support of its membership necessary for the following:
1. An orchestrated public relations campaign consisting of press releases and press conferences designed to inform the public about the broad scope and potential impact of the upcoming rulemaking.
2. A letter writing campaign to Governor Pawlenty and every member of the legislature soliciting support for a rulemaking process that will not turn a century of Minnesota tradition on its head by effectively limiting property owners use and enjoyment of their lakeshore.
3. Conducting a “town hall” meeting with Governor Pawlenty to allow P.O.P.U.L.A.R. members in a less formal setting than the rulemaking process make their views known to the one person who can block efforts by the DNR to overreach.
4. Fully participating in the rulemaking process, including assisting members with providing meaningful comments on proposed amendments to rules.
5. Establishing a record in the rulemaking process that can be used in future litigation should litigation become necessary to protect property owners’ rights.

Please start formulating your comments to send to the DNR in connection with the upcoming rulemaking. The formal “Request for Comments” can be found by clicking here. The comment period ends at 4:30 p.m. on November 17, 2008. Comments may be made orally or in writing (we strongly urge submissions in writing) and should be directed to:
Tom Hovey, Public Waters Hydrologist
Department of Natural Resources
Division of Waters, Box 32
500 Lafayette Road
St. Paul, MN 55155-4032
Tel: 651-259-5654

with a copy to:

Attn: Sam Stern
247 Third Avenue South
Minneapolis, MN 55415

We recommend that your comments be concise, but personalized. Here are some suggestions for items to be included in your comments.
• Address any special needs you face in the use and enjoyment of your property.
• Describe your location and amount of shoreline (in order to help argue against a “one size fits all” approach and establish a basis for adjusting property taxes in the event of limitations on shoreline access).
• Disclose the length of time that has transpired since the installation of your private structures, especially if your structures pre-date the 2003 season.
• Estimate the value of your investment in lawful improvements to your property that will be impacted by new restrictive regulations.
• Describe any difficulties you experienced in attempting to get a special permit for your dock structure.
• Explain how a reduction of allowed private structures will impact your use of watercraft, your property values and the local economy.
• Share any special background or expertise you might have (marine store operator, realtor, dock installer, etc.) and how, based on your background or expertise, you believe regulations should be handled.

Feel free to send an e-mail to P.O.P.U.L.A.R. ( with your proposed comments if you’d like some input before sending the comment in.

Ideally, the DNR will receive hundreds of comments from P.O.P.U.L.A.R. members. Similarly, we need the Governor and our legislatures to hear loudly and clearly from our membership. We are working on an open letter to Governor Pawlenty and to the legislators that will appear here early next week. Please come back when you get a notice that there’s been a new posting and modify our open letter for your own purposes to make the statement that urgently needs to be made.

Thank you for your support. Working together we can, in fact, make a difference as Property Owners Protecting Useful Lake Access Rights.

This display was used by the DNR during its June, 2008 Open Houses discussing Shoreline Management rulemaking. The DNR felt the "dock issue" was important and related enough to include the display with the others. However, we are concerned that the decision amounted to more form than substance. Click on the image to get a larger version. You will notice that, while "docks" are mentioned and pictured, there is no clear indication that dock platforms will be a topic of discussion. Nor is there an indication that under some proposals, docks comprised of more than one length needed to reach 4 feet of water will be prohibited. Similarly, there is no indication that boatlifts or canopies will be the subject of rulemaking scrutiny. Someone not familiar with the issue might conclude that the DNR was primarily concerned with commercial facilities, piers and wharves. If this was inadvertent, it was a lost opportunity to open a real discussion around the State. If it was intentional, it highlights the concerns P.O.P.U.L.A.R. has about the ability to have lakeshore property owner rights adequately protected from being railroaded.

1 comment:

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