Grab Your Ankles Wisconsin Lake and River Property Owners

From the Paper of Record for the people of Wisconsin. Richard Moore and the Lakeland-Times.

Your freedom being eroding right before your very eyes. Hey, it's only a 1000 ft from a lake and 300 ft from a river. No big deal.

"6/30/2009 9:01:00 AM
NRB approves far-reaching new shoreland regulations
Regulations apply to nonriparian lots 1,000 feet from lakes
Richard Moore
Investigative Reporter

The state's Natural Resources Board approved Wednesday sweeping new shoreland zoning regulations for the state's unincorporated areas, including tough standards for mitigation and impervious surface limits for all lots within 1,000 feet of a lake's ordinary high water mark.

The proposed rewrite of NR115 now advances to the Legislature. If that body neither objects nor recommends revisions within 30 days, the rule will take effect.

If enacted, counties would have two years to amend local shoreland ordinances to comply with the more rigorous standards. In Wisconsin, administrative rules have the force and effect of law.

Under the rule, the DNR would allow the continuation of the "lawful use and routine maintenance of nonconforming structures" and would permit property owners to expand nonconforming structures under certain conditions and if the expansion was away from the water.

Those expanding and relocating nonconforming structures within 35 feet and 75 feet of the OHWM would have to agree to mitigation. In addition, the state would allow impervious surfaces to cover without restriction up to 15 percent of total lot size on parcels within 1,000 feet of a lake OHWM and within 300 feet of a river OHWM.

If a project brings the sum total to between 15 percent and 30 percent, property owners would be required to mitigate, which includes such things as reducing the amount of mowing next to the water, installing rain gardens to absorb runoff, and re-planting native vegetation near the shoreline.

The total impervious surface on a shoreland lot would be limited to no more than 30 percent. Existing owners whose lots have more than 30 percent impervious coverage could keep what they have, but they could not add any more.

An impervious surface is defined as any area that "releases as runoff all or a majority of the precipitation that falls on it," including but not limited to rooftops, sidewalks, driveways, parking lots, and streets.

"I want to stress that people can keep what they have," Russ Rasmussen, the director of the DNR's Bureau of Watershed Management, said in his presentation to the NRB. "You don't have to tear up your patio. You can keep your patio. You can replace your patio. But science tells us that impacts begin when impervious surfaces exceed 10 to 12 percent in the shoreland zone. So we opted for 15 percent, pretty close to where the impacts begin."

The DNR has pushed for revised shoreland regulations for the better part of the last decade, but until this year was frustrated by a lack of consensus among affected constituencies and by large crowds expressing opposition at public meetings.

During the last round of public hearings in 2007, large crowds again showed up to contest the need for a revamped rule. It was during those hearings the DNR unveiled impervious surface standards that, at that time, would have applied to lots within 300 feet of all OHWMs.

Whether a by-product of the agency's recent low-key approach to the rule change or a sign of changing times, public opposition has withered noticeably this time around. At Wednesday's board meeting, only 13 citizens signed up to speak for or against the proposed rule.

What's more, a string of expected adversaries of the proposed rule failed to appear, including Pam LaBine of Armstrong Creek, Gary Baier, the town chairman of Nokomis, Steve Margitan, representing the town of Little Rice, and Tom Tiffany, an unsuccessful Republican candidate for the 12th District state Senate seat last year.

The testimony

A few citizens did speak their minds.

George Meyer, the executive director of the Wisconsin Wildlife Federation, spoke in favor of the rule.

"The Wisconsin Wildlife Federation is concerned with protecting and enhancing fish and wildlife habitats," Meyer told the NRB. "Because of their close correlation to near shore habitats, I am testifying in support of the rule. If proper care is not taken of near-shore land, it has a severe impact on water quality."

Meyer said studies indicate that the loss of natural cover in watersheds contributes significantly to degradation of both water quality and fish and wildlife habitats.

"Shoreland property owners should be able to continue to use their properties and in fact the new rules do allow this," he said. "But the rules also require them to be good stewards."

Meyer said the DNR had "clearly listened" to all points of view and had struck the proper balance between the protection of private property rights and the protection of lakes and streams.

Jay Verhulst, representing Taxpayers for Fair Zoning, said the agency had not listened to all points of view at all, and he condemned the department's rule-writing process.

"Taxpayers for Fair Zoning was originally appointed to the (shoreland zoning rule) advisory committee, and I was its representative to that committee," Verhulst said. "The committee sat for about six years. For years the meetings went along and the DNR brought back drafts that had little to do with anything anybody was saying, save for DNR staff who sat on the committee."

Lacking a consensus, Verhulst said, the agency then split the committee into two separate components.

"And that was apparently not satisfying, so they stopped calling meetings but promised us a final draft for comment," he said. "Then eight months ago the DNR went underground and I don't know who they worked with."

Verhulst said a legal cloud hung over the proposed rule because the agency had rebuffed local governmental requests to coordinate the process with the DNR, which Verhulst suggested the department was bound by federal law to do.

"A number of towns requested coordination on the issue," Verhulst said. "The DNR has refused to coordinate but because of the flow of federal dollars a legal question exists."

Verhulst asked the board to table the proposal until the question of coordination could be resolved and until the rule's total environmental and economic ramifications could be assessed, which he said had not happened.

Sandra Verhulst of Arbor Vitae homed in on potential threats to the human environment, saying NR115 requirements for thick vegetative buffers and natural shorelines could cultivate the habitats of mosquitoes and ticks and stoke the dangers to humans of diseases such as West Nile virus and Lyme disease.

Citing 108 Lyme disease cases in Oneida County alone last year, she said no studies had evaluated the rule's potential impacts on human health and that NR115 would prevent property owners from following federal and state health guidelines.

DNR forestry guidelines, for example, advise homeowners to keep grass-mowed areas clear of leaf litter, low-lying vegetation and grassy habitat for a radius of 100 feet from a home, according to a handout on NR115 by the Wisconsin chapter of Americans for Prosperity, a grassroots organization dedicated to limited government and free markets.

Karl Kastrosky, representing the Wisconsin County Code Administrators - an organization of zoning directors whose departments would administer and enforce the regulations - submitted a six-point list of disputations from his group, chief among them the application of impervious surface standards to nonriparian lots and the 15 percent cap on impervious surfaces.

"Requiring impervious surface standards and mitigation on nonriparian lots back to 1,000 feet will be difficult to enforce and will offer very little protection," Kastrosky said. "Don't apply impervious surface standards and mitigation to lots 990 feet from the water unless they are riparian."

He also called on the board to adopt an impervious surface standard of 20 percent rather than 15 percent.

"We're concerned about lots that can't meet impervious surface standards now," Kastrosky asserted, saying the new conventions would invite more variance requests, a point the DNR disputes. The DNR argues that the new standards would actually reduce variance requests.

Kastrosky said language concerning nonconforming uses and structures was contradictory as well.

On the one hand, he said, the rule intends to allow homeowners to "wreck and rebuild" nonconforming homes within the 75-foot setback; on the other hand, if those lots don't meet the impervious surface standards, they can't do so because those standards would allow only maintenance on existing structures on properties exceeding the limits, not reconstruction or relocation.

The code administrators' representative also objected to having to send to the DNR copies of administrative review building permits issued for construction within the 75-foot setback zone, something that is not now required.

Other code-administrator concerns were slight in comparison, such as the meaning of 'structural alterations' in the context of determining the need for mitigation. Would new construction only trigger mitigation, Kastrosky wondered, or would something as simple as replacing a window spark the regulation?

DNR responds

Todd Ambs, the DNR's water division administrator, delivered a rebuttal to Kastrosky's main points.

He defended the 1,000-foot boundary for impervious surface standards and mitigation, observing that the state had defined that distance as the formal water quality management area for decades.

"It is true that when we went to public hearings (in 2007), the proposed impervious surface standard was 300 feet (from a lake)," Ambs said. "You have to put that in context when you try to update a 40-year-old rule. When we proposed 300 feet, there were several things that were quite different (than what we are proposing now)."

For one thing, he said, that version would have imposed a 10-percent impervious surface limit before mitigation was necessary and a total cap of 20 percent, rather than the 30 percent ceiling the agency wants now. Then, too, proposed height restrictions would have stretched to that 300-foot marker, while the DNR now advocates those margins only within the 75-foot setback zone.

Finally, at that time, the agency would have compelled minimum lot sizes of 20,000 square feet for all new lots, while this version would retain a 10,000-square-foot minimum for sewered lots.

"All of these things we changed to provide more flexibility, and in exchange it seemed to us that we should go back to 1,000 feet," Ambs said.

So why demand mitigation on a lot with 16 percent impervious surface coverage that sits 900 feet from the OHWM and is not located on the water, Ambs asked rhetorically.

"Because in that zone, you want to reduce the amount of runoff," he said. "And I don't see this as a significant challenge. You can go up, for instance, and add a story. That doesn't add to your impervious surface at all. Or, if you do expand, our concern is how you keep the water on your property. It could be by putting in rain barrels. That's the kind of thing we're envisioning."

As far as delimiting impervious surfaces to 15 percent without mandating mitigation, Ambs said it was a matter of balance.

"Where do you draw the line?" he asked. "With 15 percent, we thought that was as far as we could go. That's a pretty big chunk of property. An unsewered lot is 20,000 square feet; you've got 3,000 square feet before you have to do anything and you can add a story and not have to do anything."

On the issue of a contradiction between the rule's stated intent of allowing reconstruction or relocation of a nonconforming structure and other language that would seemingly prohibit such reconstruction or relocation without a variance if the impervious surface standard was exceeded, Rasmussen said Kastrosky was right but that was the agency's intent.

"Our concern was when you exceeded 30 percent (impervious surfaces) and you wanted to move the structure," Rasmussen said. "While we had a goal of reducing the total number of variances, this is one area where we would want a variance so we could take a look at it, because you have a large area of impervious surface and we want to be able to look at that for the best balance. Karl (Kastrosky) said they would have to seek a variance and we agree. That was a conscious decision on our part."

Red flag

Some board members did express reservations about the agency's demand to review administrative review permits issued for new construction within the 75-foot setback zone.

NRB member Gary Rohde wondered whether a general county audit program every few years might work better to ensure a county's compliance - the agency already has one in place - given that the DNR doesn't have any authority to cancel a permit it is reviewing anyway.

However, officials said, the agency could call a county's attention to a permit it did not consider to be in compliance, and work with the county to correct the flaw.

NRB chairwoman Christine Thomas said that scenario could be problematic for homeowners - and for the DNR's public reputation.

"The idea that a person can get a permit and start work and at some point later we step in and say we don't like it, this is the stuff that massive hatred of the DNR is made of," Thomas said.

On that issue, the NRB decided the agency would be better to stick with an audit approach, rather than scrutiny of an individual project. The rule would now obligate a county to turn over all permits issued for such nonconforming structures upon the department's request.

The DNR would work with any counties not in compliance.

DNR staff also agreed with Kastrosky on potential confusion that might occur over the definition of 'structural alterations' in the context of mitigation and dropped the phrase from the rule.

With those changes, and with a couple of technical amendments and notes, the NRB voted on and approved the rule adoption without any debate.

" NRB approves far-reaching new shoreland regulations