Thursday, January 15, 2009

An Open Letter to Governor Pawlenty

I prepared the diagram above to demonstrate how restrictive the first draft of the DNR's proposed regulations are. Click on it to see a larger version and then hit the "back" button on your web browser to return to the blog. Rather than incorporating an Aquatic Impact Area as in last year's general permit, requiring all impact by lakeshore owners to occur within a length of shoreline equal to the lesser of 1/2 the length of the shoreline lot or 100 feet, the new proposed regulations have an "Aquatic Impact Zone" equal to 5 square feet for every foot of shoreline up to a maximum of 2,500 square feet for lots with 500 lineal feet or more of shoreline.

suggested Aquatic Impact Area in last year's general permit was bad enough. If adopted, the Aquatic Impact Zone will be mandated. The diagram demonstrates how, as currently proposed, the concept is purely unworkable. As noted in the diagram, a lakeshore owner would have to own 280 lineal feet of shoreline just to be able to retain a couple of small boats and a tiny sand blanket beach. As a practical matter, lakeshore owners with a 60 foot lot line would be allowed an Aquatic Impact Zone of 300 square feet. That amounts to 6 sections of 10x5 dock. Period. No lifts, no canopies, no sand blankets.

When I verified my understanding of this element of the proposed regulations, the DNR staff person reminded me that the proposed regulations are in their initial stage and that modifications in response to concerns such as mine would be considered. He did not disagree that, as written, my understanding of the proposal is accurate.

My intention is to use this blog to keep P.O.P.U.L.A.R. members informed as to what is going on with the new regulations. As I discussed a couple of days ago, we have a seat at the table to provide input into the final version of the new regulations. I have no intention to shy away from aggressive advocacy on behalf of P.O.P.U.L.A.R. members as the process moves forward. I understand that some level of compromise will need to be achieved. My concern is that interest groups with sharply different opinions than those of P.O.P.U.L.A.R. members regarding the rights of lakeshore owners are not as inclined to compromise.

In order to try to enforce some oversight on the process from the one person to whom the DNR must answer, I sent Governor Pawlenty a letter today. It appears below and I'll let it speak for itself. I am hoping to arrange for another meeting with the governor and or his staff to convey our concerns over the potential disregard of P.O.P.U.L.A.R. members' rights and the economic fallout that would result.

If you are in agreement with the letter to Governor Pawlenty, send a letter of your own to the governor. Send one to your legislative representative. As the legislature is trying to address a multi-billion budget shortfall, its members should be aware of, and should oppose, the imposition of a regulatory scheme that will destroy the economy of Lake Country, devalue lakeshore property and result in diminished property tax revenues.

Lastly, please fill out the P.O.P.U.L.A.R. survey (click here) and the DNR survey (click here) if you have not already done so. There is no identification of who submitted which answers, either to P.O.P.U.L.A.R. or to the DNR. We need to build a record as part of the rulemaking process in order to have a basis for challenging any adverse results, if necessary. Remember, the surveys are open through next Monday, January 19th. We've had about 80 responses thus far. We can use more.

Let your friends and lake neighbors know what we are doing. This fight to protect our interests will take time and won't be inexpensive. If you can help out financially, it's appreciated. You can use the "donate" button above to the right to make a secure donation through PayPal with your credit card. Please feel free to comment on our efforts. You can do so anonymously.

Thanks for your support.

Here's the letter sent to Governor Pawlenty today (and already received by his staff).

Governor Tim Pawlenty
130 State Capitol Building
75 Dr. Rev. Martin Luther King, Jr. Boulevard
St. Paul, MN 55155

Re: DNR Private Structures in Public Waters Rulemaking

Dear Governor Pawlenty:

As I write this, you are preparing to give your seventh State of the State address before the Minnesota Legislature. Given the challenges we face as a State and as a nation, I can only imagine the pressure you feel as you attempt to offer a roadmap to recovery that both acknowledges competing points of view and adheres to the basic principals that have defined you as a public servant. Thank you for your service.

I am writing on behalf of P.O.P.U.L.A.R., an association of Minnesota lakeshore property owners and others with an interest in the lakes communities formed about a year ago and concerned about the encroachment of government regulations on the private use and enjoyment of lakeshore property.

Let me again thank you for your past efforts to facilitate communications between P.O.P.U.L.A.R. and the DNR. Last year, Assistant Commissioner Larry Kramka and I had frank, but potentially productive, discussions about the concerns of P.O.P.U.L.A.R. members and the ability of the DNR to accommodate the needs of lakeshore property owners whose historical use of their property was being challenged by recent regulations. In addition, P.O.P.U.L.A.R. now has a seat on the Advisory Group constituted to provide input to the DNR Commissioner as he considers implementing new rules governing private structures on public waters mandated by the 2008 legislature.

As with your responsibilities in delivering the State of the State address, I have an obligation to balance competing points of view, both within P.O.P.U.L.A.R. and with opinions held my other members of the Advisory Group. I take that responsibility seriously and was honored to have been selected to serve as the voice of lakeshore property owners in the DNR’s rulemaking process. However, P.O.P.U.L.A.R. members are concerned that, without proper guidance offered to the DNR by you as governor and as the ultimate authority over rulemaking, mere lip service will be paid to the rights and interests of lakeshore property owners. We believe the DNR needs to receive direction from your office that any new regulations be tempered to avoid imposing restrictions on lakeshore owners that dramatically adversely impact the use and enjoyment of private structures which, prior to 2003, were perfectly legal.

When you and I spoke at the St. Louis Park Rotary meeting in the spring of 2008, we agreed that rules that “grandfathered” existing structures that were legal when installed represented an acceptable compromise between competing environmental and property ownership interests. For reasons related primarily to the difficulties of communicating to the DNR’s enforcement agents, a problem that can be rectified in new rules, lakeshore owners who applied for a special permit last season on the basis of having “legacy” structures were generally denied relief. The absence of enforcement of regulations by the DNR in 2008 rendered the issue moot.

As we address new rulemaking, it appears that enforcement will not be an issue. All parties agree that any rules adopted have to be capable of uniform enforcement. Unfortunately, thus far, there is no similar acceptance of the preconceived notion that the investment of initially compliant legacy owners be protected from the impact of new regulations.

The first draft of the new regulations furnished the Advisory Group by the DNR makes no provision for grandfathering existing legal private structures. The drafter of the rules suggested that any decision to exempt existing private structures on account of their prior legal existence should be addressed in special legislation. P.O.P.U.L.A.R. believes such an approach would impose an unnecessary burden, both from the point of view of P.O.P.U.L.A.R. members and of legislators, who have much better things to do with their limited time and resources.

To give you an idea of how restrictive the new proposed rules are, even keeping in mind that the proposal is in its early stages, I have enclosed a diagram setting forth an example of a typical lakeshore property configuration. The hypothetical property owner maintains a small fishing boat on a lift, an average sized pontoon, and a small sand beach maintained along the lakeshore. As indicated, under the current proposal, the lakeshore owner would need at least 280 feet of lineal shoreline in order to qualify for this minimal impact. Few Minnesota lakeshore owners have 280-foot shorelines.

Even if, as has been suggested, the access dock is not counted (150 s.f. in the diagram), and all dock other than what is needed to board the fishing boat and the pontoon is removed (200 s.f. in the diagram), the lakeshore owner would still have 1,050 s.f. deemed included in what the proposed rules consider the allowable “Aquatic Impact Zone”. Accordingly, the hypothetical lakeshore owner would still require 210 lineal feet of shoreline to qualify for the impact described. Again, most lakeshore owners do not own 210 feet of shoreline.

When the discussion of private structures on public waters started in 2007, it was characterized as a debate over the size of dock platforms (“party docks” per the Star Tribune). Now, lakeshore property owners, including those without a dock platform, face de facto restrictions on the number of watercraft they can own, the extent to which they can provide a swimming area in front of their lake homes, and the amount of dockage and number of boat lifts they can retain to allow safe and secure boarding and protection of their watercraft.

The consequences from the imposition of such restrictive regulations are far reaching.
• In the first instance, P.O.P.U.L.A.R. believes that outlawing the use of private property acquired and previously utilized legally constitutes a taking by the State and entitles the owner to just compensation as a matter of Constitutional law.
• Imposing limits on the amount of shoreline a lakeshore property owner is allowed to impact under new regulations will drive down property values and related property taxes. It will also give rise to litigation by lakeshore property owners challenging premium property tax assessments on the basis of lakeshore footage the owner is not allowed to utilize. The loss of property tax revenue will necessarily be made up by increased assessments on all property, both lakeshore and non-lakeshore property, within the impacted jurisdiction.
• The real estate, marine and dock industries face devastating losses, on top of the challenges faced in our current economy, as the economic impact of the restrictive new regulations are felt.

The State can ill afford either the obligation to compensate property owners for a taking or the loss of property tax revenues that will result from the proposed restrictions. The State’s economy should not be subjected to unnecessary undermining by regulating major sectors of the lakes community out of business.

We believe that the solution is to compromise the goals of environmentalists with the rights of lakeshore property owners. Require any new regulations to accommodate existing private structures that were legal when first utilized. Going forward, everyone would understand that, as is common with the implementation of other environmentally friendly regulations, new standards apply. However, individuals who made investments in their lakeshore property, consistent with then prevailing legal standards, should be allowed to retain and pass on those investments.

If, in your capacity as governor, you could provide the DNR with guidance on this issue, and direct that any new regulations start with protecting pre-existing legal private structures as a baseline, there is a much higher likelihood that the process will play itself out with a minimum of disruption to law-abiding property owners and a significantly reduced cost to the State of Minnesota, local jurisdictions and the residents of local jurisdictions who do not reside on public waters.

Please excuse the length of this correspondence. P.O.P.U.L.A.R. members and I would be happy to meet with you or your staff to elaborate on our concerns. Thank you for your consideration.


Samuel L. Stern, for


Anonymous said...

I think they should adopt the rule as proposed and then ignore it like they always have. If it's such an issue, WHY was it IGNORED for YEARS! Ask 'em THAT!

Sam Stern said...

Dear Anonymous:
The lack of past enforcement HAS led to a culture of self-policing by lakeshore property owners. 99+% of lakeshore property owners have refrained from establishing any presence in the public waters that a reasonable person would find objectionable or that harms the aquatic environment. Proponents of stricter regulations based their case for the current rulemaking by pointing to the excesses of the remaining less than 1%. Frankly, it's easier to scapegoat the rare owner of a 500 s.f. dock platform than to effectively enforce regulations against introducing invasive aquatic species into formerly "clean" lakes. The problem we face now is that everyone at the table recognizes that the ability to enforce the new rules is essential. I am convinced that the DNR will endeavor to strictly enforce whatever is adopted. Accordingly, we need to make sure that nothing is adopted beyond what can be enforced. One way to do this is to "grandfather" existing legal when installed structures and focus enforcement efforts on new residents on the lakes.

Whitefish Chain Property Owner said...

Sam, thanks for all your work on this. I am somewhat encouraged about the approach of setting an overall aquatic impact area - but obviously they have the square footage limit way off. Following is the "comment" I added to the DNR survey that I submitted.

**If a limitation of lake surface area covered must be placed on structures in public waters, then it should be a "consolidated" limit that the property owner can choose to utilize as they wish. The DNR should NOT try to limit each type of individual structure as is implied with these survey questions***

Dave Milles said...

You obviously were NOT paying attention when the proposed concept of Aquatic Impact Area was being presented at the first Advisory Committee meeting. First, it was explained that the Aquatic Impact Area would ONLY APPLY TO THOSE ACTIVITIES THAT DO NOT REQUIRE A PERMIT FROM THE DNR. Since 1977, a number of routine shoreland activities have been deregulated... no permit is necessary to install or use them. However, shoreland owner’s, including POPULAR, have raised legitimate questions about how many of these deregulated activities would be allowed and where they would be allowed on individual shoreland lots.

The concept of Aquatic Impact Zone has been proposed to clarify that property owners can mix and match whichever of these deregulated activities they wish on their shoreline. The suggested square foot limitations (which have NOT been finalized and are being reviewed by the Advisory Committee) are intended to establish a reasonable maximum for activities that are NOT regulated via a permit. It was also pointed out at the first Advisory Committee meeting that the draft language needs to be revised to establish a minimum square footage allowance for all lots with less than 100 feet of shoreline (it was verbally proposed as 500 square feet). The key point is that shoreland owners are recognized as having a legitimate right to a certain level of access and use of public waters WITHOUT needing a permit from the DNR.

In addition, the proposed rules will establish an intermediate regulatory level for activities allowed under a General Permit. As presented at the first Advisory Committee meeting, General Permits would be developed for specific activities and/or specific localities and would represent a class of PREAPPROVED activities. There are two (2) key points addressed by the proposed General Permit process. First, the DNR would be able to assess the unique problems associated with specific activities for specific waters or geographic areas and establish specific permitted criteria to accommodate them. The important requirement established within State Statute is that the DNR needs to determine that activities allowed under a General Permit pose “minimal impact upon public waters.”

Second, once the DNR creates a General Permit, all a shoreland owner needs to do is complete a simple application identifying who they are, where the permitted activity will be located and pay the Statutory fee established for permits. General Permits are PREAPPROVED and will automatically be issued without any further review or intervention by the DNR. The key point is that the DNR will fulfill its statutory obligation to keep track of where, when and what is done to alter public waters... and shoreland owners will have documentation for their “legacy” use.

Finally, for all of those activities that are not DEREGULATED or allowed via a GENERAL PERMIT, the DNR will still require an Individual Application for a Permit to alter the course, current or cross-section of public waters. These will normally be for larger or more unique residential activities affecting public waters and/or commercial, public or semipublic activities. The key point is that the DNR will apply its expertise and energies to evaluating and reviewing the most significant activities that affect public waters.

This is what was presented to the Advisory Committee at its first meeting in Brainerd on January 6... and this is what you should have included in your report to POPULAR members and readers, and included in your open letter to the Governor. My challenge to you is to post this “comment” on your Blog and let the members and readers understand exactly how the DNR is making an honest and sincere attempt to include their concerns in this rule-making process.
Dave Milles
Division of Waters

Sam Stern said...

Dear Dave:
I accepted your challenge to post your comments on the P.O.P.U.L.A.R. "Open Letter to Governor Pawlenty" blog without hesitation. The purpose of moderating comments is not to censor legitimate opinions. In addition, I am going to direct everyone on the P.O.P.U.L.A.R. mailing list to your comment as I am concerned that they might otherwise be missed since there has been a subsequent posting to the blog and there is no automatic notice to blog visitors of a new comment posting.

Contrary to your initial assertion, I WAS paying close attention to the "proposed concept of the Aquatic Impact Area (sic) was being presented at the first Advisory Committee meeting." Not only was I paying attention, but I observed the courtesy of verifying with Tom Hovey at the DNR the accuracy of my understanding of the incorporation of the Aquatic Impact Zone into the draft regulations before publishing the blog on the subject or sending a letter to Governor Pawlenty.

There are going to be some contentious discussions ahead. Let's agree to leave personal attacks out of the equation in the future.

With respect to the substance of your comments, I don't think we are in disagreement over how the process will work. The differences lie in how certain thresholds are determined and who determines them. For example, as you note, the General Permit will be available only to riparian property owners whose use of the public waters adjacent to their property constitutes "minimal impact". However, the P.O.P.U.L.A.R. member with nearly 300 feet of shoreline, a family of 5 children, 7 boats and dockage and dock platforms sufficient to sustain them all, and who has had the same presence on the lake since the early 1990's, believes his family has minimal impact on Gull Lake. My sense is that there are a number of members of the Public Structures Advisory Group who disagree. Should their view prevail in the final draft of the regulations, the riparian property owner in my example would not qualify for inclusion under the General Permit.

As for the concept of the Aquatic Impact Zone, I need to l"awyer up" even though I explained that I was not in a position to give legal advise to the Advisory Group.

As set forth in your the initial draft of Section 6115.0210 (Structures in Public Waters) of the revised regulations, "It is the goal of the (DNR) to LIMIT THE OCCUPATION of public waters by . . . other structures in order to:
. . .
D. allow for REASONABLE riparian use WITHIN THE AQUATIC IMPACT ZONE while maintaining the biological and ecological integrety of the aquatic impact zone." (Emphasis added).

Subsequently, in Subpart 3 of Section 6115.0210 you provide:
"Placement of structures, temporary structures and floating structures is PROHIBITED when the structure, temporary structure, or floating structure:
. . .
F. is a non-public . . . structure exceeding 8 feet in width AND/OR 85 FEET IN LENGTH, including not more than 160 square feet of attached platforms or other appurtenances that do not exceed 8 feet in width or 20 feet in length;

G. is a non-public . . . structure extending into water exceeding 4 feet in depth . . .;

. . .
I. IS NOT CONSISTENT WITH and/or approved under applicable federal, STATE or local government standards and REGULATIONS." (Emphasis added).

Finally, Subpart 4(A) of Section 6115.0210 of the draft regulation provides that "No permit is required for the following activities, UNLESS PROHIBITED UNDER SUBPART 3 (the language outlined above):

. . .
(8) the total area OF ALL STRUCTURES WITHIN THE AQUATIC IMPACT ZONE shall not occupy more than 500 square feet of the surface of bed of a public water for every 100 feet of shoreline of any riparian lot, up to a maximum of 2,500 square feet." (Emphasis added).

Taken together, the aggregate square footage of a riparian property owner's docks, water canopies, watercraft lifts, sand blankets, boat launching ramps, and swimming or diving areas and structures cannot be in excess of the formula currently set forth in Section 6115.0210, Subpart 4(A)(8) of the draft regulations. If they do, they are not consistent with applicable state government regulations and, under §6115.0210, Subpart 3(I), they are prohibited. If they are prohibited, they do not qualify for incorporation under the General Permit criteria of §6115.0210, Subpart 4(a) AND do not qualify for a special permit under §6115.0210, Subpart 5 because, again, the structures exceed the limitations of the aquatic impact zone (cf. §6115.0210, Subpart 5(B)).

I fully recognize that this is an initial draft and that some modifications, including exempting the square footage of access dock, are being contemplated. I said as much in the blog and in my letter to Governor Pawlenty.

However, the fundamental underpinning of the proposed regulations, attempting to define "minimal impact" as a function of square footage based on riparian lot size, while possibly appropriate for the development of riparian property lots in the future, utterly fails to consider the rights of existing riparian property owners who have enjoyed lawful use and enjoyment of their structures for years before the limiting regulations of 2002 were imposed.

The fact remains that the example I gave in my diagram accompanying the blog is accurate under the rules as currently drafted. If the result seems harsh, and necessitated your vigorous response, then I believe I made my point.

I can assure you that I will have much to say about the scope of the General Permit once it is tackled by the Advisory Group at the meeting in February. My first blog after the first meeting was not meant to be an all-encompassing review of the process or the likely outcome. Knowing that the rules are still being formulated, I wanted to wait before alarming the P.O.P.U.L.A.R. membership more than necessary. On the other hand, the fundamental limitations presented by the concepts of "minimal impact" and "aquatic impact zone", as drafted, justified immediate discussion and immediate consideration of incorporating the concept of "legacy" property into the new regulations rather than require pursuing a statutory remedy before an otherwise occupied legislature.

I look forward to continuing to work together to reach an acceptable middle ground on these issues.

Dave Milles said...

Dear Sam,
I'm sorry that you took my opening remark as a "personal attack". It was certainly not intended to insult or denigrate... only to emphasize that I believe there is still a misunderstanding of the "aquatic impact zone" concept and the hierarchy of permitting procedures proposed in the draft rules.

In any case, my opinions or administrative ideas no longer matter... I have resigned from my special appointment to work on the structure rule revisions for the DNR. However, I still believe there are reasonable means available to achieve your objectives without compromising your ideals or the DNR's obligations. Feel free to call me if you'd like to chat... I'm in The Book.
Dave Milles