P.O.P.U.L.A.R. Survey Results

The first survey of watercraft/lakeshore owners conducted by P.O.P.U.L.A.R. is now closed. In all, 160 of the 471 visitors (in 662 visits) to this blog last week completed the survey, many expressing their appreciation for what they described as a less biased format than the D.N.R. survey of watercraft owners.

The results of the survey are available here. Click on each page image to obtain a larger version of the survey page. Hit the "back" button on your browser to return to the blog and the next page of the survey.












About 60% of the respondents own property in Crow Wing County. About 20% own property in Cass County. A little more than 6% own property in Hennepin County. Wright and Washington Counties had a few respondents. Aitkin, Douglas, Hubbard, Itasca, Ottertail, Scott and Sherburne Counties each had one property owner. 14 respondents either do not own lakeshore property or did not respond to the question about location. One of the tasks P.O.P.U.L.A.R. faces is getting residents from all over Minnesota to understand that the proposed D.N.R. regulations will apply to them. There appears to be a misconception, based on the hoopla last year over dock platforms, that the new "private structure" rulemaking will impact primarily Gull Lake, Lake Minnetonka and the Whitefish Chain.

We believe that if all lakeshore owners in the State understood the potential threats to their use and enjoyment of their property, there would be a significantly more widespread outcry.

As demonstrated in the results of the survey, lakeshore owners, who have a vested interest in the well-being of the public waters on which they reside and in the commitment they have made to their respective properties, strongly believe that the State of Minnesota will be financially liable for compensation if there is implementation of regulations which outlaws previously legal uses of property. Similarly, persons responding to the P.O.P.U.L.A.R. survey demonstrated a strong belief that any reduction in property values resulting from new regulations will require a reduction in property taxes.

These results will be part of the record the D.N.R. Commissioner will have to consider before approving any new regulations. The financial impact of adopting the regulations cannot be ignored. P.O.P.U.L.A.R.'s position is that the State of Minnesota cannot lawfully impose new regulations which carry with them a legitimate financial burden to the State without making provisions to meet that financial burden. Suffice it to say, that this are not the time for the State of Minnesota to incur tens of millions of dollars in obligations to property owners on account of the taking of their lawfully acquired property and property rights as a result of new, incredibly restrictive regulation of docks, boat lifts, boat slips, sand blankets and watercraft ownership.

Please help us fight on your behalf by making a donation to P.O.P.U.L.A.R. today. Thank you for your support.

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.

The 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.

Sincerely,

Samuel L. Stern, for
P.O.P.U.L.A.R.

DNR Rulemaking Update: The Ship has left the Dock (Platform)

The Department of Natural Resources' rulemaking process to revisit the issue of "private structures" on public waters is in full swing. As indicated in the e-mail that went out to P.O.P.U.L.A.R. members in November, the DNR solicited comments before the drafting of new rules began. In addition, the DNR is soliciting input via the Internet by asking watercraft owners to complete a survey (see link below) and has started a formal rule-making process designed to meet the January, 2010 deadline imposed by last year's legislature.

P.O.P.U.L.A.R. is at the forefront of representing the rights of lakeshore property owners. It has been recognized by the DNR as a voice of lakeshore property owners as the process proceeds. In fact, as a result of the work P.O.P.U.L.A.R. has done thus far to express the viewpoints of lakeshore property owners, we have been given a seat on the Structures in Public Waters - Rule Revision Advisory Group constituted to provide input to the DNR as part of the process. I attended the first meeting of the Advisory Group on behalf of P.O.P.U.L.A.R. last week. The meeting was primarily to organize the Advisory Group, review the issues, distribute the preliminary draft rules DNR had prepared, identify the issues of concern to Advisory Group participants and set a schedule for three additional monthly meetings.

Our aggressive representation of lakeshore property owner rights will be needed if the final regulations are to incorporate our concerns. In addition to P.O.P.U.L.A.R., one representative (each) of the dock industry, the real estate industry, the marina industry and the resort industry serve on the Advisory Group. Unfortunately, 15 of the remaining 19 Advisory Group members are DNR staff or representatives of environmental groups. Since the purpose of the rulemaking process is to establish a record upon which an administrative law judge can rely in approving new regulations, it is critical that we build a record that evidences the rights of lakeshore property owners and the need to avoid over-regulation. Should those rights and needs be ignored in the process, P.O.P.U.L.A.R. will have the basis for litigating to prevent the implementation of offending rules. Without a record, P.O.P.U.L.A.R. members will be at the mercy of the dictates of the DNR.

As noted above, comment gathering is part of building a record for later consideration. Accordingly, we cannot allow emotionally based, uninformed, baseless opinions to be relied upon in establishing a record for review. Part of the comment gathering is coming from the distribution of a survey to licensed watercraft owners in Minnesota. This survey is in addition to opinions garnered at the Minnesota State Fair in 2008 and is intended to obtain the opinions of persons most likely to use the State's lakes and rivers: boat owners. Initially, the survey was to be distributed to 25,000 randomly chosen watercraft licensees. The randomly selected licensees received a postcard from the DNR asking them to go online and answer a 27 question survey. Subsequently, the DNR decided to give all watercraft licensees the ability to participate in the survey by going online at http://www.dnr.state.mn.us/survey/watercraft/index.html, entering a license number, and answering the questions. The license number is required only to try to limit responses to persons with a vested interest in the process. The DNR is not keeping track of which answers come from which licensees, so there is no reason not to participate or be honest with your answers to the questions.

P.O.P.U.L.A.R. members are urged to go online to the DNR survey and file a response on or before January 19th, the deadline for responding. We need to make sure that the results are not completely skewed in favor of the weekend boater who visits a local lake, enjoys the public waters, but has no real interest in the rights of, or understanding of the needs of, lakeshore property owners.

P.O.P.U.L.A.R. members are also urged not to get frustrated with the tone of the survey, which appears to be skewed against property owners' rights. Rather, P.O.P.U.L.A.R. owners should click here and take a modified survey prepared to more fairly reflect some of the issues presented by more restrictive rulemaking by the DNR. The results of this survey will be presented to the Advisory Group and made part of the official record of the rulemaking proceedings. It is not limited to watercraft licensees. It is limited to one response per computer.

It is now time, absolutely, to make your fellow lakeshore property owners aware of efforts to severely restrict their use and enjoyment of their property. Never mind dock platforms: docks themselves, boat slips, boat lifts, sand blankets, canopies, personal watercrafts and even the number of allowed boats are being targeted by the proposed regulations.

Now that the process has started in earnest, I'll be posting blogs more regularly so check back often. Later this week, I'll start reviewing the elements of the draft rules as presented at the initial Advisory Group meeting.

Finally, please consider making a donation to support our efforts. You can either click on the "donate" button at the top of this posting or send a check to P.O.P.U.L.A.R. at 247 Third Avenue South, Minneapolis, MN 55415. The money will be spent to assure that lakeshore property owners have a voice at the table and, compared to the tens of thousands of dollars invested in so-called "private structures" and watercraft, is a worthwhile investment to maintain your historical lake lifestyle.

Thanks for your support.

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:

P.O.P.U.L.A.R.
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. (protectlakes@gmail.com) 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.

DNR Open House Report

Hello, all. I received the following thorough memo from a POPULAR member who attended Tuesday's open house hosted by the DNR to discuss shoreline management regulations.

Please review the information and consider attending an open house near you. The schedule is linked from the blog posted last month or available on the DNR web site. Let's continue to make our concern about DNR over-regulation known and at the forefront of their considerations.

Here's the memo. The author requested that his name not be used. His work is greatly appreciated.

MEMORANDUM

Date: June 4, 2008
To: Samuel L. Stern. General Counsel, P.O.P.U.L.A.R.
From: (P.O.P.U.L.A.R. member)
Re: Summary of Observations during Attendance at June 3, 2008 DNR Open House for the Shoreland Rules Update Project At Minnetonka Community Center

I attended the DNR Open House for Shoreland Rules Update Project scheduled at the Minnetonka Community Center from 6:30 – 9:00 p.m. on June 3, 2008.

The following observations are passed along for your information.

The handout sheet provided by the DNR upon entering the meeting room indicates:

SHORELAND RULES OPEN HOUSE
MINNETONKA

Shoreland Rules Update

* Shoreland Rules Update - Learn about the process that will be used to develop draft rule revisions, what the existing rules cover, and what are some potential areas that could be addressed in rule revision.

* Local Governments – Staff from various local governments in the area are available to discuss how local shoreland ordinance implement the shoreland rules.

* Provide input on areas that you think should be addressed as part of the rules update project.

Other Shoreland Related Projects and Efforts

1. Shoreland Stewardship – Individual shoreland management techniques that protect water quality, habitat, and shoreland ecology.
2. MN Pollution Control Agency – Impaired waters and total maximum daily load activities to support the Clean Water Legacy.
3. Minnehaha Creek Watershed District – Blue Thumb; planting for clean water program.
4. Minnetonka Natural Resources – Water Quality Education
5. MN Pollution Control Agency – Low impact development methods for controlling stormwater.
6. Wright Soil & Water Conservation District – Water quality in Wright County.
7. Other DNR Programs – Docks, fisheries, shoreland restoration, and aquatic plant management.
8. University of Minnesota – Erosion Control Program

My general impression is that the DNR is holding these Open House meetings simply to be able to say they have sought public input and comment. The DNR does not, however, seem really interested in gathering public opinions at these meetings in a truly meaningful way that would be quantifiable.

The meeting room was set up similar to a variety of other information fairs with different zones of information around the perimeter of the room. DNR representatives were on hand and mingling with individuals or small groups of attendees to answer questions.

There was a posterboard on an easel with a listing of topics like “stormwater runoff”, “setbacks”, “docks”, “surface water use”, and a number of other terms on it. The attendees were asked to take a strip of four adhesive-backed red dots and place the red dots by the topics that they thought should be addressed in the new shoreland regulations. This method merely gave a visual indication of what topics should be reviewed in making the new rules. This procedure, unfortunately, did not give the attendees a way to indicate what their individual position was on any of the particular issues that might be affected by the rulemaking.

There was a separate easel with a sheet of paper on it immediately adjacent to the easel with the DNR listed topics. The blank page of paper was used for attendees to write in previously unlisted topics for consideration. When I arrived someone had already written something along the lines of “Individual rights of owners regarding the use of their own property”. This statement had a large number of red dots by it.

I wrote in an additional comment on the sheet stating “Regulatory taking of Riparian Property Owner Rights”. It may not be that the rules that are ultimately developed rise to the level of a regulatory taking that is compensable to the riparian owner, however, I did attempt to make the point with a couple of the DNR officials whom I spoke with that some of the new restrictions under consideration sure seem like a “taking” of benefits we have enjoyed and/or had decision making control over for decades or generations.

The Open House is not conducted in a format where there are speakers to the entire assembly or questions put to the DNR officials in an open assembly format for all attendees to hear at once. Instead, the format is done in a one-on-one or small group question and answer format. During the meeting I had separate conversations with Paul Radominski, a research scientist from the DNR office in Brainerd, and Tom Hovey, the Public Waters Permits Program Coordinator of the DNR. Tom Hovey was the individual everyone was directed to for questions about the dock regulations.

Some of the input and concerns I attempted to convey in discussions with DNR officials included the following:

Is there really a widespread problem that needs addressing by new shoreland regulations? I expressed a preference for keeping government regulation to a minimum and also encouraged reasonableness based upon scientific fact rather than conjecture about impacts. Riparian owners are predominantly excellent stewards of the resources because of their vested interests in their own property as well as the public water which abuts it. It would be much preferred for the DNR to promote voluntary compliance with certain recommended “best practices” or “recommended practices” by virtue of education of the public as to the benefits that could be achieved by such practices rather than the by virtue of the imposition of legal regulations which the DNR seems inadequately prepared to enforce.

As regards the dock matter in particular I inquired of Tom Hovey as to whether he could give examples of any types of circumstances under which the DNR has actually granted a special permit for dock platforms greater than the 120 square foot platform measured separately from the access dock or 170 square foot area including the access as allowed under the DNR’s General Permit No. 2008-0401. I mentioned I had heard of several applications being submitted, including an applicant with a handicapped member in their family; however, I have not heard of any special permit requests being granted. Tom Hovey indicated that some permit applications had been withdrawn after the DNR representatives visited with the applicants about alternative ways to lay out their docks in a manner which would not require a special permit. He did indicate that if the same oversized dock layout has been used by a special permit applicant for an extended period of years that factor should noted in the application; however, he did not indicate that having what some people refer to as a “legacy dock” alone would result in a permit being issued either. Neither did he indicate that anyone had been granted a special permit.

When Tom Hovey was asked directly about whether the DNR would be enforcing violations of the General Permit this season he . . . indicated that the more likely situation would involve one in which a neighbor made a complaint (even if anonymously made) against another neighbor about an oversized dock. Mr. Hovey indicated that in that situation the result would initially be the delivery of an information packet about the dock regulations to the offending neighbor.

There was an abundant supply of printed literature on a variety of topics available for attendees to select at the Open House. Most of the literature appeared duplicative of the information available online at the DNR website.

In addition to the shoreland rules information there were also a number of other informational stations relating to the topics listed under the “Other Shoreland Related Projects and Efforts” section of the handout page referenced above.

In conclusion, if the DNR really wanted to learn where attendees at these Open Houses stand on the issues it would be possible to use any number of other commonly used techniques to gather and quantify citizen input by using written questionnaires or surveys. Do not expect the regulatory result to be based on majority or consensus views of the public. It seems clear the new draft shoreland rules that are due out about this time next year (May 2009) will reflect the DNR’s own positions rather than any democratically polled desires on John Q. Public on the subject. If you seek to provide meaningful input to the DNR it was suggested that you try to get someone on an Advisory Committee.

N.B. P.O.P.U.L.A.R. has started the process for being included on any advisory committee established in connection with forthcoming rulemaking on private structures in public waters (e.g., docks, boatlifts, canopies, platforms).

Please read the comment received in response to the e-mailed version of this blog. It is imperative that P.O.P.U.L.A.R. members show up in numbers that will make it clear to the D.N.R. and the administration that regulations infringing on lakeshore owners' rights will not be quietly accepted.

Legislative Wisdom (?) and Accelerated Rulemaking

The 85th Session of the Minnesota Legislature has adjourned, but not before legislators turned up the heat on Minnesotans who own lakeshore property.

Contrary to earlier reports and expectations, rulemaking on “structures in public waters”, i.e., docks (with and without platforms), boatlifts, canopies, etc., must be completed by January 15, 2010, a year earlier than previously contemplated. The Legislature actually appropriated $100,000 for the D.N.R. to use in 2009 to conduct this expedited rulemaking, even though D.N.R. representatives had testified that no additional funds would be needed if the deadline for rulemaking was set for 2011.

Under the legislation adopted, D.N.R. general permit no. 2008-0401, authorizing exceptions to existing regulations’ 8 foot wide limit on dock structures, expires on the effective date of the updated rules. Accordingly, unless P.O.P.U.L.A.R. succeeds in pushing back against the “public waters lobby” during the 2009 rulemaking process, lakeshore property owners will see even 120 s.f. dock platforms outlawed and, in all likelihood, witness a significant curtailment in the “impact” they are allowed to have on the public waters lapping up to their private shoreline.

Rulemaking Advocacy Practice

P.O.P.U.L.A.R. members anxious to help start the process of protecting lakeshore owners’ property interests have an opportunity to make themselves heard in public forums even as we wait for next year’s rulemaking. Currently, the D.N.R. is engaging in rulemaking on shoreland management. Click here for a link to the D.N.R. file with a schedule of the 12 upcoming open houses taking place between June 3 and June 25.

The first open house takes place at the Minnetonka Community Center, adjacent to City Hall, on Wednesday, June 3rd, from 6:30 to 9:00 p.m. The meeting in Brainerd is scheduled for June 17th in the Northland Arboretum.

The shoreline management rules govern development, construction, setbacks, impact, structures as they apply to lake shores. Traditionally, the D.N.R. has worked with local jurisdictions to determine appropriate shoreline management based on local considerations. Shoreline management rules govern impact on the lakes from the point of view of the land.

This approach is contrary to the D.N.R.’s involvement in setting standards for public waters, i.e., governing impact on the lakes from the point of view of the water. When regulating the “public waters”, D.N.R. does not rely on the input from local jurisdictions, except where it has delegated some authority to a local organization like the Lake Minnetonka Conservation District (LMCD).

P.O.P.U.L.A.R.’s efforts have been focused on public waters regulation, the scope of which includes docks, platforms, boatslips, etc. However, as P.O.P.U.L.A.R.’s members are also impacted by shoreline management rulemaking, and since there are issues common to both concerns, we believe P.O.P.U.L.A.R. members should make sure that shoreline management rulemaking gatherings, including upcoming open houses to solicit the public’s input and provide a background on the process, are well attended. Shoreline management and public waters management may be apples and oranges, but they’re both fruit.

P.O.P.U.L.A.R. members attending the D.N.R. open houses should insist on receiving clarification on the relationship between new shoreline management rules and forthcoming rulemaking on structures in public waters. Recall that, under the existing general permit, lake shore property owners are encouraged to observe an “aquatic impact area”, limiting their use of their lake shore to the lesser of 50 feet or one half the length of their shoreline. Currently, observance of the “aquatic impact area” suggestion is at the discretion of the lakeshore owner. Will new shoreline management rules mandate observance of an “aquatic impact area”?

What about the impact of limitations on usable shoreline on property values and resulting property tax assessments? Assuming sufficient support from its members to actively participate in D.N.R. rulemaking, P.O.P.U.L.A.R. intends to challenge the propriety of allowing jurisdictions to continue to assess property taxes at a premium based on the length of shoreline if, in fact, rules are implemented that relegate excess shoreline to the status of the same eye candy available for free to the general public. The government should not be allowed to deny property owners the use of more than a standardized fixed amount of shoreline at the same time it imposes property taxes as if the limitations were not in place. Open houses to discuss shoreline management rulemaking provide an excellent opportunity to start that dialogue since local governing bodies will be in attendance.

By being a vocal part of the shoreline management rulemaking process, P.O.P.U.L.A.R. members will send a signal to the D.N.R. that next year’s rulemaking on public waters issues must protect the legitimate interests of lake shore property owners. There will be no railroading of new restrictions on the use and enjoyment of lakeshore property or the accessories necessary for that enjoyment.

Because the rulemaking process of most interest to P.O.P.U.L.A.R. members has been moved up a year, it is even more imperative that P.O.P.U.L.A.R. members support our efforts by making a donation to fund research, both as to scientific and economic issues, publicity, needed to inform everyone with lakeshore property, whether or not they own a dock platform, that restrictive rules need be opposed, and advocacy, making the case for P.O.P.U.L.A.R. members before elected officials and appointed bureaucrats. Please click on the “Donate” button at the top right corner of this blog and be part of the effort to protect P.O.P.U.L.A.R. members’ interests.

Permit Applications

On a related matter, we are continuing to monitor the willingness of the D.N.R. to issue special permits for those lakeshore property owners who have dock platforms that exceed the limitations of the general permit. Assistant Commissioner Larry Kramka still insists that D.N.R. policy in our current environment is to consider justifications proposed in special permit applications, particularly where dock configurations have existed for many years prior to the adoption of existing regulations in October, 2003, and not dismiss applications out of hand, as had been the case up until now.

In discussing the reluctance of local hydrologists to issue special permits as reported by some P.O.P.U.L.A.R. members, Assistant Commissioner Kramka suggests that special permit applicants try to work through any concerns with the hydrologist before submitting the completed permit. The list of area hydrologists is available by clicking here.

However, if need be, permit applicants should contact the hydrologists area supervisor to seek a solution. Click here to be directed to a link listing the area supervisors that should be contacted if there is an impasse with a local hydrologist. Although Assistant Commissioner Kramka made it clear that not everyone would be issued a special permit, there is a sense that as applicants work up the management chain at D.N.R., they will find more awareness of and responsiveness to the issues confronting legacy dock platform owners. Other special needs, including health and safety concerns and family size, should be considered in addition to the historical use of dock platforms.

Finally, special permit applicants should not submit the application until they have reviewed it with the local hydrologist and, if need be, upper management, to verify that the application is complete and has some chance of being approved. Once the special permit application is received by the D.N.R. and determined to be complete, the D.N.R. will invoice the applicant for the $150 fee. The fee should not be submitted beforehand. Once a special permit is issued with respect to a particular dock platform configuration, it remains in effect for so long as the circumstance justifying its issuance continues. There is not need to reapply on an annual basis.

We are in the process of pursuing several special permits on a test basis. We will not tolerate accepting lip service from the D.N.R. nor, for that matter, from Governor Pawlenty, who has the power to direct the D.N.R. to follow through on allowing reasonably-sized legacy dock platforms to receive permits. Please keep us advised of any particular difficulties you are experiencing in efforts to obtain a permit. Also, should you decide to risk being cited by not applying for a permit, be sure to let us know what enforcement actions, if any, are being taken by the authorities.

As always, thank you for your support. Special thanks go out to the individuals who have already sent in checks or made donations through PayPal by clicking on the "Donate" button. I look forward to meeting many of you in person at the shoreline management open houses.

-Sam Stern

The race is on to regulate the public water. Be a participant!

Season Opener

Goodbye to boatslips?
We have finally arrived at that time of year in Minnesota when Winter loosens its grip and we return to our enjoyment of Minnesota’s lakes in their liquid form. This year, many of us have a choice to make when installing dock structures in the admittedly public waters:
(a) Do we limit the configuration of dock platforms to fall within the 170 s.f. (including last dock extension) maximum allowed under the D.N.R.’s General Permit 2008-0401 and avoid the necessity of applying for a special permit from the D.N.R.?
(b) Do we apply for a special permit from the D.N.R. seeking permission to re-install our dock platform that exceeds the 170 s.f. limit allowed under the D.N.R’s General Permit?
(c) Do we attempt to fly below the radar and install a dock platform that exceeds the 170 s.f. without applying for a special permit and hope that the D.N.R. will not seek to enforce existing regulations making the platform illegal absent a special permit?

Since the last blog posting, a number of P.O.P.U.L.A.R. members have expressed problems when going through the permit application process. No one has contacted us to indicated that their application for a special permit has been approved. On the other hand, the difficulties described by members whose permit applications were denied, or not processed, seem to have involved extraneous issues that most lakeshore owners will not face.

Official Position
Assistant D.N.R. Commissioner Larry Kramka still insists that lakeshore owners wishing to install dock platforms in excess of 170 s.f. should apply for a special permit and that owners of “legacy docks”, i.e., structures utilized since before the 2004 season when the existing regulations first went into effect, should highlight that status in the application in order to receive most favorable consideration. Commissioner Kramka underscores the importance of fulfilling all the requirements of the special permit application and suggests contacting the local hydrologist to review the application for completeness and likelihood of approval before officially submitting it with the non-refundable $150 fee. Finally, Commissioner Kramka clarified that a special permit need only be applied for once (if approved) and that the $150 is not an annual expenditure. You can obtain the list of local hydrologists by clicking here.

Real World Considerations
It would be extremely helpful if P.O.P.U.L.A.R. members would keep us posted on the status of their experience with applying for a special permit. Generally, only Part I of the special permit application needs to be completed, the balance deals with more extensive impacts on the aquatic environment. No approval from the Army Corps of Engineers is required, despite confusing language in the special permit to the contrary. Maps of the location required under Section 3 of the permit application can be generated online from www.mapquest.com or www.google.com/maps. Be sure to include a drawing of the project with dimensions as required in Section 5 of the permit application.

When considering whether or not to apply for a special permit legally required given the size of your dock platform, assume that the larger your platform, the more likely that you will be cited by the D.N.R. for violating existing regulations if no permit is obtained. We have no indication that the D.N.R. will be applying a full court press to assure 100% compliance with its regulations. We have no indication that counties will agree to prosecute citations for violations of D.N.R. regulations governing dock platform sizes. However, we have no reliable indication that the D.N.R. will continue to look the other way with respect to violations of existing regulations or that county attorneys will refuse to prosecute and cannot, as a matter of P.O.P.U.L.A.R. policy, advise against complying with the regulations.

This brings up another consideration and a renewed call for support. Expect that the D.N.R. will prioritize enforcement based on complaints received. If you have neighbors inclined to report problems they perceive with your use of your lakeshore property, expect the D.N.R. to respond. Also, expect that the lobby behind Senator Mary Olson’s legislation to repeal General Permit 2008-0401 upon the issuance of new regulations that will, in their view, at worst require everyone to limit their dock size to no more than 8 feet in any one direction, to be clamoring for the D.N.R. to enforce existing regulations, including the limits imposed by the General Permit.

Although we were able to buy some time before the commencement of new rulemaking on “private structures in public waters”, the D.N.R. has made it clear that the process will start next year. If we wait until next year to prepare, we will find ourselves playing catch-up as was the case this year responding to the work of the D.N.R.’s Dock Advisory Committee that resulted in the issuance of the General Permit with its “aquatic impact area”.

If you are satisfied being told by the D.N.R. that you can utilize no more than 50% or 50 feet of your lakeshore, whichever is less, do nothing. If you are willing to have the D.N.R. dictate how much lineal footage of dock you can install, do nothing. If you are willing to limit or even eliminate your use of boatlifts on your property, do nothing. If you don’t need a boat canopy, or, at least, more than one boat canopy, do nothing. If you don’t mind the inability to moor more than one boat at your lakeshore property, do nothing. If you think it’s okay for lakeshore communities to impose property taxes at a premium on lakeshore that you will be prohibited from impacting, do nothing.

The choice is clear. We can do nothing and watch as each of the consequences described above are incorporated into new rules designed to limit property owners’ use and enjoyment of their lakeshore to a “minimal impact” standard found in existing regulations but clarified for purposes of future enforcement. Or, for those of us who find such post facto government intrusion into property rights unacceptable, we can ready ourselves for forthcoming hearings before the D.N.R., the legislature and, if necessary, the courts.

The Ask
The publicity, the research, the legal representation, the organization, the education, and the persuasion to “ready ourselves” all costs money. Those of you who decide to “do nothing” need read no further. Those of you who believe that by acting together, the thousands of impacted lakeshore property owners can protect their investments and lake use heritage, while continuing to be good stewards of the public waters need to step up and make a financial commitment to allow the work of P.O.P.U.L.A.R. to go forward.

P.O.P.U.L.A.R. is in the process of applying for 501(c)(4) non-profit status. Contributions are not tax deductible. However, we can use our official position to influence the implementation of regulations. We are establishing a board to oversee the direction of our efforts and assure the efficient expenditure of donations. Informational meetings will be held soon in the Twin Cities and in the Brainerd Lakes area. We will continue to pressure the D.N.R., the legislature and the Pawlenty administration to protect our interests.

Or, we can do nothing.

Please send your checks made payable to P.O.P.U.L.A.R. to:
P.O.P.U.L.A.R.
c/o Samuel L. Stern
247 Third Avenue South
Minneapolis, MN 55415

Thank you for your support. Please pass on the link to this blog to interested parties.

"Minimal Impact" as envisioned by opponents of P.O.P.U.L.A.R.