Thursday, February 5, 2009

Frequently Asked Questions about DNR Rulemaking

I have received a number of requests to shorten the length of these blog entries.

To try to keep things more brief, I have prepared the following list of “Frequently Asked Questions” or FAQs. Please feel free to ask anything else in the comment section at the end of the blog.

Q: Why do we need more DNR regulations?
A: Because the Legislature said so in 2008. Senator Mary Olson of Bemidji, responding to pressure from constituents concerned about the size of dock platforms, required the DNR to undertake and complete new rulemaking by January 2010 on the issue of “private structures” in public waters.

Q: Is the “private structure” rulemaking limited to a debate about dock platform sizes?
A: No. Once directed to take a new look at the rules, last modified in 2002 to restrict dock width to 8 feet but with no limit on the length of dock, the DNR has indicated it intends to address all private structures, including boatlifts, boat slip canopies, boat launching ramps, beach sand blankets, dock platforms and docks themselves.

Q: What is P.O.P.U.L.A.R.’s position on the proposed new regulations?
A: Simply put, P.O.P.U.L.A.R. believes that if a private structure was acquired and first utilized in a lawful manner (consistent with then existing regulations), it should be exempted from any new restrictions. The property owner should be allowed to retain and continue to use the private structure and should be allowed to pass on exempted private structures when their lakeshore property is sold. Any new regulations, which should still be reasonable and meet N.E.A.R. criteria, will apply to newly acquired private structures.

Q: What is N.E.A.R.?
A: P.O.P.U.L.A.R. believes any new regulations have to meet a four-way test: Needed, Enforceable, Affordable and Reasonable.
• If there is no demonstrated Need for a change in the regulations, the law prohibits their adoption.
• Any new regulations should be limited in scope to a level that can be Enforced uniformly and with the limited resources available to the DNR.
• New rules that deprive lakeshore property owners of the use of lawfully acquired and utilized property, or result in a reduction in the market value of lakeshore property, constitute a regulatory taking, entitling affected persons to compensation from the State. Therefore, any new regulations should be limited in scope to a level that the State of Minnesota can Afford.
• Taking everything into consideration, the final form of regulations must be Reasonable as a matter of law.

Q: Doesn’t P.O.P.U.L.A.R.’s position, effectively one of “grandfathering” existing docks, boatlifts and other private structures amount to a “I have mine, but you cannot have yours attitude”?
A: Yes. So what? P.O.P.U.L.A.R. believes that is a better approach than “I cannot have mine so formerly legal uses have to be stopped”. Think of it like this. When Congress first mandated more fuel-efficient cars in the 1970’s because of the benefits to the environment and in order to reduce dependence on foreign oil, it did not outlaw "muscle cars" lawfully acquired beforehand or prevent them from being sold. It just looked forward and moved on. Anyone purchasing a vehicle afterward accepted that they were in a new era. It can be the same way with lakeshore property owners (as long as the new private structures regulations are N.E.A.R.).

Q: What is P.O.P.U.L.A.R. doing to prevent the adoption of unneeded, unenforceable, unaffordable and unreasonable regulations?
A: P.O.P.U.L.A.R. has a seat on the Private Structures Advisory Group, appointed to represent the interests of lakeshore property owners. Unlike past rulemaking exercises, the DNR is forced to respond to P.O.P.U.L.A.R.’s challenges to proposed regulations. Because of its position on the Private Structure Advisory Group, P.O.P.U.L.A.R. has been able to publicize elements of the proposals being considered, like the “Aquatic Impact Zone” discussed previously in this blog, resulting in reconsideration by the DNR and less restrictive proposals being used as a baseline for further consideration. More generally, P.O.P.U.L.A.R. serves as a single, focused voice of the hundreds of thousands of lakeshore property owners potentially impacted by new regulations. This blog was visited nearly 6,000 times since initially posted in early 2008. In just the last three weeks, when P.O.P.U.L.A.R. started reporting in earnest on the new rulemaking, the blog has been visited 1,510 times. As P.O.P.U.L.A.R. lobbies the Governor, the Legislature and the DNR, these numbers are significant.

Q: What happens next?
A: Once the Private Structures Advisory Group makes its recommendations to the DNR commissioner, proposed rules will be published. There will likely be public hearings responding to the proposed rules and, depending on the level of support P.O.P.U.L.A.R. receives, we will encourage members’ attendance and arrange for the testimony by members of the business and lake communities to create a record upon which final implementation of rules must be based. Ultimately, the DNR commissioner, the governor and an administrative law judge need to determine that the regulations are needed, reasonable and comply with all requirements of the law. A number of P.O.P.U.L.A.R. members have indicated that they are determined to sue to prevent the implementation of any new regulations that do not meet those standards.

Q: What is the status of Private Structures Advisory Group deliberations?
A: Currently, I am preparing for the February 12th meeting of the Private Structures Advisory Group. The agenda calls for discussion on the scope of a General Permit to exempt certain private structures from regulation. There are some members of the Advisory Group who, at our first meeting, expressed the opinion that the DNR should not issue any general permit and that lakeshore property owners should have to go before the DNR to get permission for pretty much anything that goes into the water. P.O.P.U.L.A.R.’s position, by contrast, is that there should be general permits, written as broadly as possible, allowing legal uses of private structures to be continued without regard to new regulations.

Q: Are the Private Structures Advisory Group meetings open to the public?
A: Yes, but only for purposes of observation. A better way to have input is to communicate with P.O.P.U.L.A.R. to make sure concerns are being addressed and then attend public hearings when held to voice your opinion publicly.

Q: Does P.O.P.U.L.A.R. publish all comments on its blog or are negative comments censored?
A: P.O.P.U.L.A.R.’s policy is to publish all comments with the exception of anonymous personal attacks. We will publish personal attacks if you have the backbone to put your name on them. We will publish anonymous posts that merely express an opinion, for us or against us, but do not engage in personal attacks.

Q: What happens if P.O.P.U.L.A.R. does not receive adequate financial support to fund its efforts?
A: The short answer is that lakeshore property owners will be left to fend for themselves individually. We will complete our service on the Advisory Group and look for volunteers to carry on. However, we believe much of the gains that have been achieved will be lost. The DNR, and the majority of the Advisory Group membership that supports very restrictive limits on the existence of private structures in public waters, are funded by taxpayer money. They do not have any reason to pull back from achieving their agenda.

Please use the "Donate" button at the top right of this blog to show your support. Thank you!

Finally, here is a question from a member who wrapped most of the objections critics of private structures on public waters have into a single question:

Q: If lakeshore property owners are not supposed to (i.) commandeer public waters with their private structures, (ii.) use structures to make their lake experience more comfortable and, depending on conditions, even possible, (iii.) create eyesores that everyone on the lake has to look at, and (iv.) interfere with access to all of the public waters, why aren’t ice fishing houses regulated?
A: Anybody?

Thank you for your support and assistance in keeping P.O.P.U.L.A.R. members' interests protected.

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