Wednesday, May 6, 2009

End Game: Standing up to Needless Regulations

Minnesota’s precious summer season soon returns and the installation of lakeshore owners’ docks and boat lifts is in full swing. “Precious” should probably also be applied to the docks and boat lifts themselves. Now that the Department of Natural Resources has gone through the motions of completing four meetings of the Private Structures Advisory Group, it is drafting proposed regulations that, if adopted as described in the last meeting of the Advisory Group, will significantly change the way 45-60,000 lakeshore owners access the public waters.

P.O.P.U.L.A.R. members have a last opportunity to intervene in the process before new regulations are adopted in time for the January, 2010 deadline. Assuring reasonableness in the adoption of new regulations governing the size and number of docks, boat lifts, boat ramps, dock platforms, and canopies will require active participation in the public hearing process set to take place in late summer. It will take communications to the vast majority of riparian owners unaware of pending rule changes to assure their participation in the process. It will take a focused legal challenge to ill-conceived modifications to existing regulations that will diminish lake access rights and property values. It will take funding.

Here’s the update.

P.O.P.U.L.A.R. served on the Advisory Group as the voice of lakeshore property owners. However, as reported earlier, the Advisory Group consisted mostly of D.N.R. staff and individuals with more concern for returning the public waters to environmentally pristine jewels than with recognizing the rights of riparian (lakeshore) owners to continue to enjoy their formerly lawful access to public waters.

Lip service, which abounded, was paid to the rights of riparian owners. Unfortunately, it appears that the persons responsible for generating the draft of the new regulations believe a single four-foot wide dock extending to four feet of depth satisfies legal obligations to riparian owners and any expansion of that limited access is a gift. One environmentalist on the Advisory Group thought the initial regulations proposed would have no affect on 85% of Minnesota’s lakeshore owners. I reminded the gentleman that the 15% of 300,000-400,000 property owners who will be negatively affected amounts to 45-60,000 interested parties.

Here are some of the issues that arose in the Advisory Group discussions:

• P.O.P.U.L.A.R. objected to conducting an Advisory Group without giving the group members any guidance on the demonstrated need for new regulations or limits on the scope of what ought to be considered. As a matter of law, regulations cannot be modified without submitting a Statement of Need and Reasonableness (SONAR), something like an environmental impact statement, prior to allowing the government to modify rights of private citizens.

Although the Advisory Group was told there would be a draft SONAR to work off of by the February meeting and, later, before the final April meeting, a SONAR was never provided to the Advisory Group. Rather, at the April meeting, it was explained that the D.N.R. will develop a SONAR to justify (after the fact) whatever draft rules are sent to the Commissioner and the Governor for consideration. P.O.P.U.L.A.R. considers this unacceptable and believes it effectively negates the credibility of any “advice” relied upon from the Advisory Group. During the course of four meetings of the Advisory Group, there was no demonstrated need to modify existing regulations other than a mandate from the Minnesota Legislature that arose because of concern over the size of dock platforms.

P.O.P.U.L.A.R. likened this approach to being asked to design a cost effective airplane without being told if the airplane was going to be used to fly from Brainerd to Minneapolis or from Minneapolis to Tokyo. Without adequate guidance on need and reasonableness, it’s impossible to give informed advice.

• P.O.P.U.L.A.R. argued strenuously for including grandfathering provisions in any new regulations. The D.N.R. circulated questions to the Advisory Group about the appropriateness of grandfathering existing private structures that were legal when first installed. The responses generally supported a phasing out of the right to maintain legal structures over a period of time.

• P.O.P.U.L.A.R. argued that new regulations needed to consider the economic impact on property values and on businesses that rely on lake commerce. The so-called “real estate industry” representative on the Advisory Group acknowledged that stricter D.N.R. regulations would result in some of her clients wanting to sell their lake homes because of reduced access opportunities. However, the representative would not connect the dots and admit that a sell-off resulting from stricter regulations would put downward pressure on market values. Evidence from experts to the contrary submitted to an administrative law judge will be critical in forthcoming public hearings.

• P.O.P.U.L.A.R. argued that any “impact area” imposed should not necessarily be defined by a contiguous line since many riparian owners bought lots with longer shorelines precisely in order to segregate various activities, e.g., swimming areas from boat docks. This was ignored in the initial draft of the new regulations.

• P.O.P.U.L.A.R. argued for the inclusion of specific criteria for the issuance of permits for structures that exceeded the minimalist criteria that will not require a permit. Criteria recommended by P.O.P.U.L.A.R. had to do with safety, both with respect to mooring watercraft and to assuring lake access for persons with physical challenges, historical uses (again, grandfathering structures that had been in place prior to the adoption of rules that restricted them), and family size. Only the family size criterion was included in the initial draft and that was challenged by a D.N.R. staffer offended that the size of one’s family should determine how much dock a riparian owner could put out.

As currently proposed:
• Riparian owners will be allowed to have an impact on their lakeshore that is contained within a contiguous line that does not exceed the lesser of ½ of the length of their shoreline or 50 feet. There was some discussion that a minimum length might be appropriate for smaller lots, thereby avoiding the need to cram all impact into a 25 foot wide area on a 50 foot lot.
• Anyone with seven or more watercraft, seaplanes or floating structures restrained by docks, mooring buoys or other means will be considered to be operating a mooring facility and will need a permit.
• There is no provision in the initial draft for grandfathering structures that were legal when first installed.
• Dock platforms cannot exceed 120 square feet (not including the dock extended from shore) without a permit.
• There is no provision to compensate riparian owners who will have to discard excess dock sections and/or boat lifts and, not incidentally, "excess" watercraft to comply with new regulations.

Action Plan

1. Send letters to D.N.R. Commissioner Mark Holsten. His e-mail address is His fax number is 651-296-4799. His address is 500 Lafayette Road, St. Paul, MN 55155-4040. Demand that property owners who have invested thousands of dollars in their lawfully installed docks, boat lifts, canopies and platforms be allowed to keep and maintain them. Demand compensation for any other result, including compensation for the reduction in property values that will result from reduced access. By simply grandfathering in the right to retain previously owned lawfully installed private structures, most of the issues go away.

2. Send letters to Governor Pawlenty. His e-mail address is His fax number is 651-296-2089. His address is 130 Capitol Building, St. Paul, MN 55155. Demand that he not approve any new regulations that do not grandfather previously owned lawfully installed private structures. Demand that any new regulations contain specific criteria for allowing issuance of permits where structures justifiably exceed the restrictions in the regulation in view of safety and historical uses.

3. Help publicize the existence of the pending regulations. Make sure lakeshore neighbors are aware of what the D.N.R. has planned. Refer them to this website. Ask them to be added to the P.O.P.U.L.A.R. mailing list. This is not about platform sizes. Once property values are impacted by new regulations, it will result in local governments needing to raise property taxes on everyone to make up for the reduced revenue from properties that no longer justify premium taxation.

4. Donate to P.O.P.U.L.A.R. You can use the PayPal link at the top right of this page or below or send a check to P.O.P.U.L.A.R., 247 Third Avenue South, Minneapolis, MN 55415. The funds will be used to educate and organize the public, pay for professionals to represent collective interests of lakeshore property owners before the D.N.R., to make P.O.P.U.L.A.R. heard in public hearings and, if necessary, in court to challenge any illegally adopted regulations. A lot of effort has been made to establish a record and hold the D.N.R. accountable. Please help assure that we do not repeat the mistakes of 2002 by sitting idly by while new restrictions are quietly adopted.

Please Support P.O.P.U.L.A.R. (all donations graciously accepted)


Kyle said...

Please don't take our life away from us. "The lake" is our life! I have grown up enjoying what it has to offer and I hope that my kids can enjoy it too. Don't take it from us please!

Anonymous said...

The goals of the DNR are clear:

Specifically, the goals of the rules relating to structures are to limit the occupation of public waters by structures to preserve the natural character of public waters and their shorelands; provide a balance between the protection and utilization of public waters; and encourage the removal of existing structures which do not serve the public interest from the beds of public waters (from MN Rules, part 6115.0210, subp. 1.).