Tuesday, September 14, 2010

Getting It Right for Lakeshore Visitors and Residents

On August 11, 2010, Governor Tim Pawlenty exhibited a welcome combination of common sense and governmental action. The governor returned proposed regulations on private structures in public waters and on shoreline management to DNR Commissioner Mark Holsten “directing the DNR to further engage interested stakeholders, and especially the Legislature, in a fresh approach that will better conserve and manage Minnesota’s most important natural resource”, its lakes.

Governor Pawlenty made it clear in his August 11th correspondence that had the rules progressed and come to his desk in their present form, he would have vetoed them. The governor’s action represents a tremendous victory for P.O.P.U.L.A.R., which has been steadfast in its efforts to limit the application of new rules on private structures and to account for the differences in lake configurations, both natural and artificially induced. Recognizing and responding to P.O.P.U.L.A.R.’s efforts, Governor Pawlenty pointed out to Commissioner Holsten:
I recognize the need to improve our state’s shoreline practices and limit excessive intrusion of public waterways by private structures. However, the rules you forwarded to me regarding these issues do not strike a proper balance between protection of our lakes and waterways and the equally important right of our citizens to enjoy them and their property.
The governor recommended that the DNR consider statutory enactment achieved through cooperation with the 2011 Legislature, whose members are more accountable to the public than DNR bureaucrats (my word, not his), rather than rushing into new rule-making as the issues are revisited.

As a result of Governor Pawlenty’s actions, it does not appear that any significant action on the issue of private structures or shoreline management will take place until a new governor, and new DNR commissioner, are in place. While we cannot be sure of timing, we can be sure that special interests determined to impose their concept of pristine lake experiences on the entire State of Minnesota will demand that the regulations be revisited.

Recall that the proposed regulations on private structures went well beyond the debate over dock platform size that spawned the legislative directive in the first place. P.O.P.U.L.A.R.’s greatest challenge may be to publicize this fact in order to avoid the imposition of significantly more restrictive regulations or statutes addressing all elements of private structure use, including onerous limitations on the amount of dockage and number of watercraft lakeshore property owners will be allowed to maintain.

The governor’s rejection of the shoreline management regulations provides P.O.P.U.L.A.R. with another opportunity. Until now, P.O.P.U.L.A.R. has not involved itself in the shoreline management debate. This results primarily from the fact that the review of shoreline management regulations had been going on for nearly a year prior to the commencement of P.O.P.U.L.A.R.’s efforts in response to proposed restrictions on the size of dock platforms.
Since both issues are back on the drawing board, it may make sense for P.O.P.U.L.A.R. to work to organize public awareness of all efforts to restrict lakeshore property owners’ use and enjoyment of their shoreline.

To this point, P.O.P.U.L.A.R. members have done an excellent job of making their positions known to the DNR and to state and local government officials. As we move forward, it will take persistent communication to elected representatives to keep the pressure up and, particularly, extend our reach to the shoreline management issue.
We can start by demanding that candidates for public office disclose their position on the private structures and shoreline management issues. While it may be fair to assume that Tom Emmer is least likely among major party candidates to allow new restrictions on lakeshore property owners’ rights, P.O.P.U.L.A.R. members should not refrain from putting the question to Messrs. Emmer, Horner and Dayton.

We have been taking a low key approach to the issue while the governor’s action was pending as P.O.P.U.L.A.R. did not want to politicize the matter while Governor Pawlenty reviewed the proposed regulations in a thoughtful, reasoned manner. Now that matters are in a state of flux again, we will provide P.O.P.U.L.A.R. members with regular updates on the status of the effort to impose new restrictions.

Please contact the gubernatorial candidates at the addresses shown below and ask them to answer the following questions:
1. Do you agree that any new regulations governing lakeshore stewardship and the enjoyment of docks, boatlifts and platforms should allow previously lawful uses to be retained and passed on (i.e., grandfathered)?

2. Do you agree with Governor Pawlenty’s assessment that any modification to existing regulations should avoid “imposing a one-size-fits-all standard when lakeshore circumstances vary so widely”?

3. Do you believe that lakeshore owners, who have made a significant financial and emotional commitment to their property, are the best stewards of the lakes they reside on and should be given considerable deference in the adoption of any new regulations?

4. Do you agree that it makes no sense to regulate shoreline management without addressing the problems of waste treatment and farm runoff that introduce significant pollutants into our waters?

5. Do you agree that imposing statewide onerous restrictions on private structures in response to reports of a handful of illegal, oversized structures is not appropriate?

Our experience has proven that a large influx of correspondence from P.O.P.U.L.A.R. members sends a signal to the recipients that these are issues of major concern to a large number of constituents who represent a broad demographic. Taking a couple of minutes to call the question as we approach the November election will keep the pressure on. Be sure to copy P.O.P.U.L.A.R. on your letters and any responses. We will post responses online for all to review.

Unfortunately, for P.O.P.U.L.A.R. to continue to successfully lobby on behalf of lakeshore property owners, it is imperative that funds be raised to cover the costs involved. A number of members have already contributed generously, assuring our place at the table and making it possible to prevent railroading by the DNR and supportive special interests. Without ongoing pressure, lakeshore property owners face a potentially different outcome under the next administration.

Please make a secure contribution to the work of P.O.P.U.L.A.R. using the "Donate" link to PayPal at the top of this blog. If every reader of this blog donated $25, we would be sufficiently funded for the next lobbying campaign. If you do not wish to use PayPal, you may send checks made payable to P.O.P.U.L.A.R. to 247 Third Avenue South, Minneapolis, MN 55415-1003.

Finally, please use the comment section of the blog, or send an e-mail to protectlakes@gmail.com, to express your preferences with respect to involving P.O.P.U.L.A.R. in the shoreline management debate.

Thank you for your support. Here are the mailing and e-mail addresses for the campaigns of the three major gubernatorial candidates:

Mark Dayton for a Better Minnesota
800 Minnehaha Avenue East, Suite 201
St. Paul, MN 55106

Tom Emmer for Governor
P.O. Box 14269
Saint Paul, MN 55114
go to link at www.emmerforgovernor.com/connect/contact

Horner 2010
10760 Highway 55
Plymouth, MN 55441

Sunday, February 14, 2010

Pending DNR Regulations

The Star Tribune ran an article yesterday that mentioned the proposed DNR regulations now sitting on Governor Pawlenty's desk awaiting signature or instructions for revision. If you missed it, click here to read the article.

On behalf of P.O.P.U.L.A.R., I posted the following comment online:

"The DNR regulations that are pending will be applied to all recreational lakes in Minnesota, are not limited to "shallow areas" and go much further than restricting so-called dock platforms.

"After allowing the sale and use of shoreline property for generations, and taxing its value accordingly, the government now proposes to limit the number of boats, boatlifts, dock sections, and canopies that can be utilized. The proposed regulations also limit the total width between any such docks/lifts to 40 feet of lakeshore on a lot (and multiple lots with common ownership count as one lot) regardless of how much shoreline is owned. Property owners fortunate to have purchased a large enough lot to allow the kids to swim in an area away from boat traffic will be forced to concentrate all activity within the 40 feet.

"The reglations might make sense on lakes where there's not been much development or residents have chosen to leave their properties in a more pristine state. However, the DNR, including Tom Hovey, who is quoted in the article, admits that the limited impact of the status quo is not a threat to aquatic life. Trying to turn the entire state into the BWCA is just another example of heavy-handed government interference with the rights of property owners who have vested economic and environmental interests in maintaining the health of the lake on which they reside.

"This is the land of 10,000 lakes. There are plenty of choices to make if someone wants to be on a lake without looking at structures that were purchased and installed consistently with DNR regulations. The sensible approach is to allow lawful uses to be retained (as is the case with boathouses) and focus regulations on assuring that, going forward, impact on lakes is more limited."

P.O.P.U.L.A.R. has been active in trying to limit the impact of the proposed DNR regulations. Check back next week for an update on our efforts.

Saturday, May 9, 2009

Getting the Word Out (with an example)

Lakeshore Dreams, a published and virtual magazine devoted to promoting Minnesota's heritage of lake cabin ownership, is to be commended for helping to publicize the D.N.R.'s plans to impose stricter regulations on dock and boatlift ownership. With a 15,000 person mailing list, we hope that the magazine's assistance will contribute to a groundswell of concern and standing up to the D.N.R. Click here for a link to the LakeshoreDreams.com posting and call to action.

Here's an example of P.O.P.U.L.A.R.'s concern. The photo below is of an endangered dock configuration. Currently, and for more than two decades, the configuration has been compliant with all regulations and the local lake association guidelines. However, because it stretches for 65 feet on a 100 foot shoreline, it would be prohibited under currently proposed D.N.R. regulations. The property owner would be forced to discard thousands of dollars of dock structure and would not be able to use his property to moor all of his watercraft, forcing him to pay for outside storage or sell the "excess" boats. There is no justification for this! The property owner was at all times in compliance with existing regulations when he supported the local economy and purchased the structures and the watercraft. The D.N.R. could, and should, easily focus its efforts on future lakeshore development to achieve its stated preservation goals and leave existing lawfully installed structures alone.

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 mark.holsten@dnr.state.mn.us. 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 tim.pawlenty@state.mn.us. 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)

Wednesday, February 25, 2009

Response to Questions of the Week

Thanks to the 30+ folks who took the time to complete the survey that was posted in response to the D.N.R.'s Questions of the week. I compiled the responses and submitted them to the D.N.R. for inclusion in the official record of the Private Structures in Public Waters Advisory Group.

I also submitted a response on behalf of P.O.P.U.A.R. It appears below.

Finally, the D.N.R. questioned my so-called "cheap shot" at the person designated as the Advisory Group's representative of the real estate industry in my February 15th blog report on the February 12th meeting of the Advisory Group. I did not identify the person by name then; I won't do so now. My criticism of the person's narrow point of view while accepting the responsibility of representing all realtors in Minnesota who sell lakeshore property was not meant as a cheap shot. However, in retrospect, to be 100% accurate, I should have referred to the person as the only realtor with whom I have spoken in the past year about the issue who does not see a correlation between D.N.R. regulations and lakeshore property values. I apologize for the broader language contained in the February 15th blog and for any angst the perceived exaggeration caused. I also renew my call for the appointment of someone in the real estate industry with a broader point of view to the Advisory Board.

Here's the memo responding to the Questions of the Week:

M e m o r a n d u m

To: D.N.R. Private Structures Advisory Group/Erika Rivers
From: Sam Stern, P.O.P.U.L.A.R.
Date: February 25, 2009
Re: Response to First “Question of the Week”

Before I get into detail on the responses I have to the Question of the Week, I’d like to share an analogy with the Advisory Group that might illustrate why answering the questions posed such difficulty. As you read this, keep in mind that we are all acting in a fiduciary, as well as representative, capacity as Advisory Group members. Accordingly, we should not be engaging in absolutes (e.g., “no limitations under any circumstances” on one end; “no modification of wilderness status” on the other). Therefore, the ability to intelligently answer any questions depends to a large degree on the context in which the question is being asked. Here’s the analogy:

Imagine that instead of discussing private structures on public waters, we have been asked to design an airplane for a courier service that operates out of Lindbergh International Airport, Holman Field, Flying Cloud Airport and the farmer’s airstrip near me in Maple Plain.

Imagine we were asked the following Questions of the Week (they are not intended to correlate to our actual questions):
a. How long should the runway be in order to safely take off from the airport?
b. Should the airplane be allowed to use the entire runway before lift off?
c. How long should the wingspan be on the airplane?
d. How much cargo should each flight be allowed to carry?

Remember, our mission is to design an airplane. Before we can intelligently answer any of the questions, each of which in their own context asks for relevant information, we need the answers to other questions.

a. You cannot answer the first question unless you know how large the airplane is going to be. If the courier service is going to continue to operate out of all four venues, then the Advisory Group would need to either recommend different sized airplanes for the different airports or that the one airplane being designed be small enough to be able to take off and land in the most restrictive environment.

b. You cannot answer the second question unless you are familiar with the configuration of respective airports. I believe that Lindbergh is engineered to allow the use of nearly the entire runway when necessary. Using the entire runway in the farmer’s field in Maple Plain would put the airplane perilously close to County Road 83 and to power lines.

c. You cannot answer the third question until you have some idea of the size of the airplane being designed, including its cargo capacity and its desired range and whether it will be powered by jet engines or by propellers. Space limitations at the airport would also have to be considered before the question could be answered intelligently.

d. You cannot answer the fourth question until you have some idea of the capacities of the airports. Runway length and construction will determine how much cargo can be carried. Also, you need to come up with a design before you can put a limit on cargo. A C-130 should be allowed to carry more than a Piper Cub. However, getting back to (a), if the Advisory Group is only supposed to come up with one design that all four airports can accommodate, it will necessary to design on the small side.

If a member of the Airplane Design Advisory Group came to the table with a pre-conceived notion that air transport is a bad idea, that jet engines are too noisy and harm the environment and that any new airplane should have no more than minimal impact, then I suppose it would be possible to answer the four questions without regard to the variables that make a more impartial consideration possible. However, doing so would violate the fiduciary responsibilities to the courier service assumed by agreeing to sit on a committee formed to deliberate and advise.

I fear that the Private Structures Advisory Group is being put in the same position as my analogy. We are being asked to answer questions about shoreline impact without a clear understanding of the goals we are striving to achieve. We have yet to see a Statement of Need and Reasonableness. Therefore, no one has been shown the “need” for any new regulations (other than a legislative mandate that arose solely out of concern for the size of dock platforms). No one has demonstrated the “reasonableness” of various degrees of regulation. As in my analogy, it would not be reasonable to submit a design for a twin of the Boeing 747 if the courier service depended on the farmer’s field in Maple Plain to operate. And consider how your answers to the questions in the analogy might be further affected by the knowledge that the courier company only serviced the Twin Cities metropolitan area, making the use of anything but the smallest of planes a silly alternative to trucking.

With that as background, and with the fervent request that the Private Structures Advisory Group be furnished with necessary contextual information in which to deliberate in the future, here are P.O.P.U.L.A.R.’s responses to the Questions of the Week.

1. How much shoreline width do people need to impact in order to have their dock, lift, swim areas, aquatic impact management areas, etc? It is impossible to provide a “one size fits all” answer to this question. Many P.O.P.U.L.A.R. members who answered this question in surveys conducted online and provided to the D.N.R. identified a specific number based on their own experience. However, thinking more globally, the length of shoreline “needed” depends on specific shoreline topography, specific historic lawful use of the shoreline and the resulting utilization of various forms of private structures and watercraft, family size and other demographics, including health considerations.

2. Should it be a percentage of shoreline owned; with a minimum and/or maximum? Other suggestions? Since Shoreland Management rules being updated and aquatic plant management rules will necessarily impact the placement of private structures along riparian property owners’ shoreline, there is no need for new Private Structures in Public Waters rules to further restrict the length of aquatic impact. The State has to recognize that in instances where lakeshore property owners have more narrow shorelines, restrictions beyond those imposed by Shoreline Management and APM will render the property nearly unusable. In instances where lakeshore property owners have opted to purchase longer expanses of shoreline to meet their particular needs, they should be allowed, subject to Shoreline Management and APM rules, to enjoy the benefit of their bargain.

3. Should the impacted space be continuous? If not necessarily continuous, should they be of equal width within the total percentage allowed? There is no need for the impacted space to be continuous. As before, there is not one approach that reasonably fits all uses. Some lakeshore property owners purchased lots with longer shorelines precisely because they wanted to separate different uses of their property, often out of concern for safety. It is difficult to answer this question without have a sense of what the allowable aquatic impact length will be. For example, if the allowed length is limited to 30 feet (Heaven forbid), it is unlikely that, on a 60 foot wide lot there would be room for meaningful separation of the zones given required setbacks from lot lines.

4. How would the width be measured (would it measure across the altered shoreline and/or altered aquatic vegetation area? from dock edge to lift edge? Would maneuvering room be included?) As indicated by a number of P.O.P.U.L.A.R. members who responded to this question in the survey, it is not clear what is being asked. Having said that, as a general rule, any measurement criteria should be narrowly construed so that areas not actually impacted are not included in the width of the zone. With respect to “maneuvering room” being included, the mere suggestion is an affront to any concept of fairness. As we have been reminded ad nauseum, the public waters are available to everyone. Why would we even consider imposing effectively more restrictive conditions on riparian property owners by limiting their ability to maneuver in public waters for fear of having a larger portion of the public waters be included in their overall aquatic impact zone?

Sunday, February 22, 2009

D.N.R.'s "Questions of the Week" aka "Putting the Skier before the Boat"

The Private Structures Advisory Group has been asked by the D.N.R. to respond to the first in a series of "Questions of the Week". While under some circumstances, this might prove to be a useful tool to identify areas of agreement (and disagreement) among Group members, I have serious concerns about the timing of posing these questions and expecting meaningful responses.

As I indicated last week, we have yet to see the proposed Statement of Need and Reasonableness (SONAR) required to justify any rule-making. Answering the Questions of the Week outside of the context of a SONAR makes little sense to me.

Here are the questions.

1. How much shoreline width do people need to impact in order to have their dock, lift, swim areas, aquatic impact management areas, etc?

2. Should it be a percentage of shoreline owned; with a minimum and/or maximum? Other suggestions?

3. Should the impacted space be continuous? If not necessarily continuous, should they be of equal width within the total percentage allowed?

4. How would the width be measured (would it measure across the altered shoreline and/or altered aquatic vegetation area? from dock edge to lift edge? Would maneuvering room be included?)

Here's the problem. The answers to the questions depend entirely on the goals sought to be achieved by new rules and the goals should depend on the need to make changes in current rules. Without a SONAR, the responses to the Questions of the Week could amount to nothing more than irrelevant opinions. For example, the answers to the questions should be dramatically different depending on whether rules are needed to (i.) maintain the status quo with respect to aggregate human impact on aquatic plant life and fish or (ii.) return all lakes in the State of Minnesota to wilderness status in order to protect the biological environments. Also, since the "R" in SONAR stands for "reasonableness", it is impossible to determine the reasonableness of a proposed rule independently of knowing what the goal is trying to achieve.

There is no need for me to suffer alone in trying to respond to the Questions of the week. PLEASE take the time to give me your thoughts on the Questions of the Week by clicking the link at the end of this paragraph. I will make sure P.O.P.U.L.A.R. members' responses are incorporated into my official response. Because of the deadline to respond by 4:00 p.m. on Wednesday, February 25, I need your input on our survey by 10:00 a.m. on the 25th. Click here to take the survey.

Thanks for your support.

Sunday, February 15, 2009

Report on the Feb 12 DNR Advisory Group Meeting

The second meeting of the Private Structures Advisory Group took place on February 12th. As was the case with the first meeting in January, P.O.P.U.L.A.R. was the primary voice arguing against more restrictive D.N.R. regulations of private structures on public waters.

In addition to P.O.P.U.L.A.R., Dan VanderMey of FLOE International spoke up for the dock industry. There was no representative of the marine industry at Thursday’s meeting. The representative of the real estate industry, who P.O.P.U.L.A.R. expected would support concerns about the impact of regulations on property values, was more concerned with limiting colorful boat canopies across the lake from properties she was listing.

Fortunately, Bruce and Julie Larson and Rob Birkeland attended the meeting as public observers and provided input to the Advisory Group during the public comment period at the end. I have asked Tom Hovey, who oversees the Advisory Group at the D.N.R. to appoint Bruce Larson to the Advisory Group in order to assure that the only real estate representative on the Advisory Group is not also the only real estate agent in Minnesota who doesn’t see any correlation between D.N.R. regulations and lakeshore property values.

Before I get into what transpired at the meeting last Thursday, here’s what did not happen.
  • The draft of the Statement Of Need And Reasonableness (SONAR), required as part of any rulemaking was not discussed. It is still being worked on and will be submitted to the Advisory Group before the March meeting. The document is critical because it identifies for an administrative law judge the concerns that allegedly justify modifying regulations in the first place. If there is no legitimate need, there should be no rulemaking.
  • The group did not discuss the parameters of a General Permit that would be used to incorporate most current uses of private structures. Rather, Julie Ekman, who heads up D.N.R. Waters permitting, explained that the D.N.R. believed that the rules themselves would identify private structures that did not need any permit. The problem with this approach is two-fold:
  1. On a procedural basis, it contradicts the decision of the Advisory Group, actually submitted to a vote at the first meeting, that extensive discussion of the scope of a General Permit should be addressed at the outset of the February meeting. I am not comfortable with a unilateral decision by D.N.R. staff to ignore the directive from the Advisory Group and, in fact, to eliminate reference to discussion of the General Permit and the vote to make its discussion a priority in the minutes of the January 6th meeting. Click here to go to the D.N.R. web page with a link to the minutes.
  2. On a substantive basis, the lack of a General Permit eliminates an efficient way to make it clear that private structures that were lawfully installed under then current regulations will be allowed to be retained not withstanding subsequent, more stringent regulations. Absent a General Permit grandfathering in pre-existing private structures, the new regulations themselves will have to incorporate legacy language.

Some progress, from the point of view of P.O.P.U.L.A.R. members, was made at the February 12th meeting of the Private Structures Advisory Group.

  • The concept of the “Aquatic Impact Zone” was modified significantly. If it appears in the final recommendations to the D.N.R. commissioner, it will not be based on the square footage limitations contained in the first draft of the rules and challenged as unworkable last month in this blog and in P.O.P.U.L.A.R.’s lobbying efforts. Rather, the Advisory Group reached a consensus that any “aquatic impact zone”, designed to aggregate human impact on a limited portion of the lakeshore property, will be measured along a line parallel to the shoreline according to a formula to be discussed later. P.O.P.U.L.A.R. took the position that the length of the aquatic impact zone should depend on the length of the owner’s shoreline and should be subject to the grandfathering of any prior, lawful uses of private structures. We also argued, with some success, for a non-contiguous aquatic impact zone, in order to allow for the separation of swimming and boating areas on properties where the owner opted to purchase additional lakeshore to allow for safer use of the property.

The table below identifies the variety of opinions on the Advisory Group as to how long the aquatic impact zone should be. P.O.P.U.L.A.R. intends to demonstrate how restrictive some of these proposed configurations are when dealing with a 50-100 foot shoreline and a couple of boats and a swimming area.

Allowed Length of AIZ Votes
Depends on size of property. . . . . . . . . . . . . . . . 5
Depends on size of property (w/limits) . . . . . . 5
Max 50’ or ½ length. . . . . . . . . . . . . . . . . . . . . . 2
Max 40’ or 1/3 length . . . . . . . . . . . . . . . . . . . . . 1
Max 50’ or 1/3 (w/allowance for small lots). . 3
Max 30’ or 1/3 length. . . . . . . . . . . . . . . . . . . . . .1

  • The other area of significant progress was the willingness of the pro-D.N.R. side of the table to acknowledge that it may be necessary to grandfather at least some previously lawfully installed private structures. P.O.P.U.L.A.R. was adamant about the need to compensate lakeshore property owners for any regulatory taking and, more importantly, adamant about everyone on the Advisory Group understanding that entitlement to compensation was a matter of law. While I had the sense that D.N.R. staff and representatives of environmental groups were not happy with the prospect of having to limit the scope of regulations to something affordable, it was not my job to make them happy. I committed to distributing more information on the concept of mandatory compensation before the next meeting.

Two meetings remain before the Advisory Group will turn over recommendations to the D.N.R. commissioner and the public hearing process will begin. We still need to pin down the need for an aquatic impact zone, the propriety of grandfathering prior lawful uses of private structures, the basis for issuing special permits that will address special needs of lakeshore property owners based primarily on safety grounds and the question of enforceability and affordability of whatever final form the rules take.

Some of you have been sending me questions about specific aspects of the rules and the justification for what the D.N.R. is doing. Because of time and budget constraints, I am not in a position to respond on an individual basis, especially since most of the questions are similar. However, if you post your questions as comments to the blog, I will respond publicly in order to allow everyone to share, and comment on, the response.

To those of you who responded to the request for donations, thank you for your support. We would like to continue our aggressive representation of lakeshore property owners and increase our presence at the legislature. However, doing so will take the financial support of everyone with a stake in the outcome. Secure donations through PayPal can be made by clicking on the "Donate" button at the top of the blog. Otherwise, checks can be mailed to P.O.P.U.L.A.R., 247 Third Avenue South, Minneapolis, MN 55415.

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