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| 11/13/2009 9:16:00 AM | Email this article • Print this article | DNR abandons attempt to regulate within 1,000 feet of lakes
No horizontal expansion allowed within 75-foot setback
The Wisconsin Department of Natural Resources has jettisoned its attempt to regulate impervious surfaces within 1,000 feet of the ordinary high water mark of lakes, limiting in a new revision proposed impervious surface caps to properties within 300 feet of lakes, rivers, streams and ponds.
Under the new proposal, property owners within 300 feet of the OHWM of any navigable water body could now cover 15 percent of their lot with impervious surfaces without any required mitigation and cover up to 30 percent with a recorded mitigation plan.
Staff submitted that and several other requested changes to the Natural Resources Board at a special meeting Friday morning. The revisions were made as a result of requests made by the Assembly Natural Resources Committee.
At the Friday meeting, the NRB approved the revisions with an amendment stating that nothing in the rule shall be construed to limit the authority of a county to enact more restrictive shoreland zoning standards under the state statutes.
A second major modification of the rule revision - which the NRB approved and sent to the Legislature in June - would prohibit horizontal expansion of structures legally placed between 35 feet and 75 feet of the ordinary high water mark prior to adoption of the original county shoreland ordinance. Such structures could expand vertically up to 35 feet.
In other solicited alterations, mitigation plans would have to be enforceable and would have to be recorded in the office of the county Register of Deeds. The rule approved in June contained no such requirement.
The agency would also add language to clarify that pre-existing impervious surfaces may be maintained, replaced or relocated, but any relocation or replacement must meet all other ordinance provisions. For example, an existing at-grade impervious patio not meeting the shoreland setback could not be moved closer to the water or converted to a building.
However, in a nod to legislative demands, the rule explicitly allows property owners whose existing impervious surfaces exceed the new standards to keep the same amount of impervious surface they have, as well as reconfigure it or change its type as long as the overall percentage does not increase and ordinance setback provisions are met.
"For example, this provision would allow an existing at-grade patio to be removed and replaced with a new building, if the new building meets the shoreland setback requirements," a note within the rule states.
In a Nov. 6 memo to the NRB, DNR secretary Matthew Frank said the changes would have no environmental impact on the overall proposal.
"While these modifications result in limits on impervious surfaces over a smaller proportion of lake watersheds, pre-existing structures may no longer be expanded horizontally within the shoreland setback and mechanisms to help ensure that mitigation is accomplished have been strengthened," Frank wrote.
1,000-foot controversy
Without a doubt the DNR's attempt to regulate impervious surfaces within 1,000 feet of lakes stirred the most controversy in the months since the agency unveiled its rule.
That provision nearly went unnoticed.
In 2007, when the agency last held public hearings on the rule, the agency's draft called for a 300-foot regulatory boundary, just as staff proposed last week. In writing the final version of the rule, however, agency officials quietly changed the 300-foot boundary to 1,000 feet of a lake, though they kept the distance at 300 feet for rivers, streams and floodplains.
The newly expanded perimeter was never taken to public hearing.
Some stakeholders' groups and lawmakers seemed caught off guard. After The Lakeland Times reported the proposed regulatory scheme, one group's official privately told the newspaper he thought the reporting was wrong, but then conceded it wasn't after rereading the proposal. One lawmaker suggested to the newspaper it was a misprint.
The revelation that it wasn't a misprint brought howls of protest, but, in June, before the NRB, Todd Ambs, the DNR's water division administrator, defended the 1,000-foot boundary, 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 told the board. "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 wanted now. Then, too, proposed height restrictions would have stretched to that 300-foot marker, while the DNR now advocated those margins only within the 75-foot setback zone.
Finally, at that time, he said, 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.
The NRB approved the regulation, but objections continued to grow and not just from rule opponents.
At a Northwoods' listening session in Three Lakes, for example, Oneida County Board of Adjustment member Elmer Goetsch, a rule proponent, said he had served on a DNR citizens advisory committee and had opposed the idea when it was first brokered, and he said the regulation could have unintended consequences.
"Apparently my opposition fell on deaf ears," Goetsch said. "If you allow that calculation, those who have deep lots can use (that extended area) to calculate their impervious surface percentage, when in fact they put their impervious surfaces right close toward the water."
Goetsch said the 1,000-foot zone would create many more appeals and caseloads for counties.
"As a member of the Board of Adjustment, I can see 1,000 feet adding significantly to our business," he said. "I'm not looking for that kind of business."
State Sen. Jim Holperin (D-Conover), the co-chairman of the Legislature's Joint Committee for Review of Administrative Rules, voiced public criticism of the provision, too, and in the end he and Rep. Spencer Black (D-Madison) offered the proposals leading to last week's new draft.
Some observers had speculated the DNR might not concede the 1,000-foot boundary without demanding more concessions, such as tighter limits on impervious surfaces and tougher height restrictions, as it did in the 2007 draft.
At a Senate public hearing in September, the agency hinted at just such an approach.
If the committee asked the department to go to 300 feet, Sen. Mark Miller (D-Monona), the chairman of the Senate Committee on Environment, asked Russ Rasmussen, the director of the DNR's Bureau of Watershed Management, what would be the appropriate adjustment for impervious surfaces?
"Then we would want to reduce the trigger to mitigate down toward 10 percent and reduce the upper end of the 30 percent (the total impervious surfaces allowed) to provide some offsets to that," Rasmussen said.
In the end, however, the agency did not alter the impervious surface caps proposed and passed in June.
It did accede to Black's objection to allowing horizontal expansion within the 75-foot setback zone. Black reportedly met with DNR staff and told them he would not support the rule as drafted and did not support the proposed changes related to nonconforming structures, which he felt would result in big houses built too close to the water.
With NRB approval, the bill will head back to the Legislature for another review, presumably this time without objection. The Assembly Natural Resources Committee voted 14-0 on Sept. 17 to request the modifications. The Senate Committee on the Environment did not object to the DNR's language.
Richard Moore can be reached at rmmoore1@verizon.net
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