New Pier Rules to Be Applied Retroactively to Existing Piers

By: Tom Larson

Background

In January of 2004, Governor Doyle signed into law new statutory standards for piers. Under these standards, a pier does not need a permit if it meets specific dimensional requirements. If a property owner wants to place a pier that exceeds these requirements, a special permit must be obtained from the DNR.

During the spring of 2004, the DNR introduced “emergency rules” to provide additional regulations related to piers. “Emergency rules” are temporary administrative rules that bypass the standard rulemaking procedures, such as public notice and hearings. Because these rules would have made thousands of existing piers illegal, the Legislature immediately suspended the rules and directed the DNR to draft new rules.

To assist in the development of the new rules, the DNR created an advisory group made up of environmentalists, campground owners, marine contractors, and a REALTOR®. The group met for nine months, but was unable to reach a consensus. Nevertheless, the DNR has decided to move forward with the rules.

Proposed Rules

The final draft of the pier rules are an improvement over the proposed emergency rules because fewer existing piers will be illegal. However, the rules still contain a number of provisions that should be of concern to waterfront property owners, such as:

Retroactive application to existing piers – As indicated above, the proposed rules create new standards that are to be applied to existing piers. The DNR recognizes that this is the most controversial aspect of the proposed rules and has attempted to downplay the rules’ impact on existing piers. As part of its public relations materials, the DNR claims that “virtually all larger piers will be grandfathered” under the proposed rules. However, saying that these piers will be “grandfathered” is somewhat misleading.

All owners of existing piers that exceed the new DNR standards will have to obtain a permit and pay a permit fee in order to keep their pier. The size of the pier determines which type of permit the property owner must obtain and how much he has to pay for the permit. The bigger the pier, the more the property owner has to pay and the more discretion the DNR will have in determining whether to issue the permit.

Exemption standards – Property owners with existing piers that meet ALL of the following standards will not be required to obtain a permit unless the DNR decides to apply the recapture provision (see below):

• The pier is not located in a “sensitive area” (see below);
• Placement of the pier does not require removal of “large woody cover” or aquatic plants;
• The pier does not extend beyond a three-foot water depth or beyond a point deep enough to moor a boat;
• The pier is no wider than six feet;
• The waterfront property has no more than two boat slips for the first 50 feet of shoreline frontage, and no more than one additional slip for each additional full 50 feet of shoreline frontage.

General permit standards – Property owners with existing piers that do not meet all of the exemption criteria, but meet all of the following standards, must pay $50 and obtain a general permit to keep their existing piers if the pier:

• was originally placed before February 6, 2004;
• is wider than six feet, but less than eight feet;
• has a deck or platform at the end of the pier wider than six feet (measured across the shortest horizontal distance), but less than eight-feet-wide and does not exceed 160-square-feet in surface area;
• extends beyond three feet of water depth or beyond a point deep enough to moor a boat, whichever is greater;
• has more than two boat slips for the first 50 feet of shoreline frontage and more than one additional boat slip for each additional full 50 feet thereafter.

Individual permit standards – If a pier exceeds any of these standards, the property owner must pay $300 and obtain an individual permit to keep his existing pier. An application for an individual permit will receive close scrutiny by the DNR, including an investigation and a visit to the property.

New exemption criteria – Although the statutes specify that piers will be exempt if they meet certain dimensional standards (see above), the proposed rules add additional requirements. Piers will not be exempt from the permitting requirements if the pier is located in a “sensitive area” or if a “large woody cover” must be removed in order to place the pier.

A “sensitive area” is “an area of aquatic vegetation offering critical or unique fish and wildlife habitat or offering water quality or erosion control benefits to the body of water.” These areas are identified by the DNR and listed on their website, but appear to have a very broad application.

Additionally, a pier will not be exempt from permitting requirements if “large woody cover” or “aquatic plants” must be removed in order to place the pier. The term “large woody cover” is not defined in the rules. Wooded lots or waters with heavy weed coverage could be significantly impacted.

Recapture provision – Even if an existing pier meets the exemption criteria or the criteria for a general permit, the DNR retains the authority to require ANY pier to apply for an individual permit if it determines the pier causes:

• significant adverse impacts to the public’s rights and interests;
• environmental pollution; or
• material injury to the rights of any riparian owner. (See Wis. Stat. § 30.12(2m))

The statutes do not define most of these terms nor do they create a deadline for when this determination must be made. Accordingly, a property owner cannot be 100 percent sure he will be “grandfathered” under the proposed rules as they are currently drafted.

Rulemaking Process

The proposed rules will be presented to the Natural Resources Board on September 28. If the board approves the rules, the rules will then be sent to the Legislature for review. In November or December the Senate Natural Resources and Transportation Committee and the Assembly Natural Resources Committee will review the rules and hold public hearings. If the committees have concerns about the proposed rules, they have the authority to reject the rules or to request modifications.

Conclusion

The Wisconsin REALTORS® Association will continue to seek changes to the proposed rules to ensure that existing piers are grandfathered and that the rights of waterfront property owners to place piers are protected. If you have any questions or concerns about the proposed pier rules, please contact Tom Larson (tlarson@wra.org) at
608-240-8254.
 

Published: 10/10/2005

October 2005 Issue