On April 26, 2016, Governor Scott Walker signed Senate Bill 459 into law. Now known as 2015 Act 387 (the “Act”), the proposal will clarify riparian landowners’ rights in a number of areas, including boathouse maintenance and repair, boat shelter construction, seawall installation and replacement, wetland applications, and sensitive area designations.
The questions surrounding these regulatory issues have reached a fever pitch over the last decade and have been at the heart of a numerous of lawsuits. Central to these disputes is the proper balance between property rights and regulation of water and wetlands. This bill was designed to clarify a number of these issues.
First, the bill clarifies the areas of special natural resource (“ANSRI”) designation. The ANSRI designation was adopted in 2003 as part of a legislative compromise in which a very limited number of activities — such as the placement of seasonal piers and repair of shoreline erosion control – were exempted from the DNR’s permitting process. However, these exemptions did not apply in certain pristine or high-quality waterways, and in waterways deemed to be of significant “scientific value.” This designation was intended to be narrowly applied to a finite, pre-identified group of waterways. Instead, the DNR adopted a rule making the ANSRI designation applicable to thousands of waterways statewide, essentially nullifying the agreed-upon permit exemptions. The bill now provides specific lists of waters tied to the DNR’s surface water data viewer.
Second, while the construction of new boathouses has been prohibited since 1979, over the last several years, the DNR has taken an increasingly rigid view of the legality of pre-1979 boathouses. Recently, the DNR began maintaining that pre-1979 boathouses not exclusively used for navigational purposes are illegal. This potentially affected thousands of boathouses that have been partially or entirely converted into vacation homes or other uses. The bill now clarifies that pre-1979 boathouses can continue to be maintained for any use provided there was at least some history of use as a boathouse.
Third, the DNR took an expansive view of its authority under Wis. Stat. § 281.36 to assert oversight over projects impacting wetlands. The DNR interpreted its authority to review and impose conditions under its “practicable alternatives” analysis to include the ability to require a permit applicant to acquire additional sites to avoid the wetland impacts of a proposed development. The bill clarifies that for residential, agricultural and small business projects less than 2 acres, the assessment practicable alternatives can be limited to those located on the property owned by the applicant.
In addition, the bill made the following changes:
- Streamlines the ability of municipalities to site and maintain stormwater ponds. In particular the bill provides an exemption from chapter 30 dredging permits for the dredging of existing stormwater ponds, clarifies that upland stormwater ponds can be maintained without a wetland permit and allows DNR to provide credit for on-line ponds in artificial waterways as a method for achieving compliance with DNR's prescribed performance standards for sources of nonpoint water pollution.
- Clarifies the scope of activities constituting authorized repair and maintenance of an existing boathouse and clarifies the definition of a commercial boathouse.
- Requires the DNR to issue general permits for the purposes of replacing an existing seawall if no permit was required at the time the seawall was built and restricting the conditions it applies to seawall replacements in ASNRIs only to those that do not prohibit its replacement. These new exceptions to seawall replacement are in addition to those exceptions that existed under prior law.
- Requires the DNR to issue a general permit for construction on all permanent boat shelters, not just those constructed prior to May 3, 1988 as under current law, and limiting the DNR’s ability to impose restrictions on boat shelters. Specifically, the DNR’s conditions may not govern the aesthetic features or color of boat shelters or the distance at which a boat shelter may extend from the shore, except to prohibit a boat shelter from extending beyond the line of navigation, and may not be based on the degree to which adjacent land is developed.
On balance, the Act represents a step towards restoring riparian property owners’ development expectations for their property, while at the same time maintaining the quality and character of the state’s waterbodies. Restoring predictability and reasonability to DNR’s permitting process will also likely serve to limit litigation and, presumably, to reduce the significant permit backlogs DNR has incurred over the last several biennia.
For questions, or more information about Act 387, contact Paul Kent at Stafford Rosenbaum.