Fear larger piers hurt waterbodies and public access to them
MADISON -- A growing number of citizens are going to court to challenge their lakefront neighbors' requests for large and permanent docks, fearful that the structures could harm fish habitat, water quality, shoreline beauty and the public's right to access and enjoy Wisconsin's waters.
Such citizen objections are helping fuel a tenfold increase since 1990 in the number of contested cases involving permits for large and permanent docks, including many of the 32 hearings on docks in Door County alone. And citizens are playing a critical role in the outcomes, as they did in one recently decided case in Green Lake, according to Department of Natural Resources and Department of Justice officials.
On Feb. 2, the District II Court of Appeals reversed a Green County Circuit Court judge's decision allowing a developer to add boat slips on Green Lake. Testimony from members of the Green Lake Association and other concerned citizens helped support the DNR's contention that the new slips themselves, and more importantly, the cumulative impact of those and other slips already on the bay, would degrade the unique aquatic community there, and the fish and wildlife that rely on the food and spawning areas it provides. In addition, the DNR contended the proposed slips were not open to public use, as many other slips approved in the same area have been.
"The Pier 11 case is a good example of participation by interested citizens that made a real difference in the case," says John Greene, the Wisconsin assistant attorney general who handled the appeal on behalf of the DNR. "Citizens should know that their views are indeed taken seriously by the decision makers, and should be encouraged to participate in administrative hearings on matters in which they have significant interest or concern."
The developer's existing pier already had four more boat slips than what the DNR considered reasonable for the 219 feet of frontage he owned.
Mary Ellen Vollbrecht, DNR chief of rivers and habitat protection, said the Green Lake Association played a very important role in providing first-hand evidence of the proposed pier's potential harm to the environment and public access, and in providing a unified citizen voice. "It's a continuation of the great Wisconsin tradition of citizens saying, 'Our waters are public - no one has the right to take away the use of these waters or their natural resources for the rest of us or future generations,'" she says.
Such citizen involvement is increasingly important because a recent Wisconsin Supreme Court ruling and the lack of a public intervenor place on citizens the burden of challenging the constitutionality of laws they believe harm the environment. On Feb. 10, the Supreme Court essentially barred the attorney general's office from challenging the constitutionality of state laws that may harm the environment, she says.
Green Lake Association President Nancy Hill praised the Court of Appeals' decision and the message it sends. "We're pleased that the Court of Appeals has given careful consideration to the evidence presented during testimony and balanced the rights of the public, the rights of the riparian, and the protection of the environment in reaching a conclusion," Hill says. "Adding more slips to an already overutilized area further damages this sensitive area. These features need to be protected because of their importance to the entire lake as well as to the public."
A Chicago-based condominium developer wanted to add 6 additional boat slips onto a pier structure that would not be open to public use and would be located within a shallow protected bay that provides critical fish spawning habitat, according to Mark Sesing, the DNR water resources specialist involved in the case.
The DNR and Green Lake Association members contend and have testified that the proposed expansion itself, together with the cumulative impacts of those new slips and the 204 moorings already in the bay at the time, would harm the habitat, Sesing said. The developer's existing pier already had four more boat slips than what the DNR considered reasonable for the 219 feet of frontage he owned.
Increasingly, research in Wisconsin and elsewhere is showing, for example, that fish diversity declines as the number of piers increases because the structures can shade out the plants, and the associated boat traffic can chop up or uproot any plants the survive. In addition, the Pier 11 permits would not be open to public use, unlike other slips previously approved in the same area.
An administrative law judge denied the Pier 11 permit in September 1998 in a contested case hearing; in March 1999, the Green Lake County Circuit Court "reversed and set aside" that decision, and the developer built the six pier slips, which were used last summer. The Department of Justice appealed the circuit court's ruling to the District II Court of Appeals on behalf of the DNR. Now that the Appeals' Court has reversed the circuit court judge's decision, the Department of Justice will request that the additional boat slips be removed.
Research in Wisconsin and elsewhere is showing, for example, that fish diversity declines as the number of piers increases because the structures can shade out the plants, and the associated boat traffic can chop up or uproot any plants the survive.
Wisconsin's courts have recognized that lakeshore owners have certain rights to "reasonable use" of their shorelines, including building a pier out to where the water is 3 feet deep. But such private rights aren't absolute, the courts say. They can't be exercised where they harm "public rights" to water quality, fish and aquatic life habitat, natural scenic beauty and the ability to use these waterways for fishing, swimming, and passive recreation.
Hill says association members have been increasingly concerned as people have been tearing down cottages and replacing them with much larger homes, replacing native vegetation with manicured lawns, and bringing bigger, faster boats and personal watercraft with them. So association members and other concerned citizens are sitting through days of testimony at contested case hearings and expressing their alarm about the real and potential damage to their lakes. They're becoming better educated about the legal and environmental issues relating to piers, and are supporting groups in proactively responding to actions that could degrade our lakes, she says.
"The public is coming to recognize that their stake in the waters of Wisconsin is threatened today. Concerned riparians, as well as those whose access to lakes is through public areas, are alarmed by the pressures on our lake created by the lack of stewardship that some shoreland owners demonstrate," Hill says. "Exercising their right to place a pier and slips must be accompanied by a responsibility to protect the fish and wildlife habitat, spawning habitat, aquatic plant community and to consider what the cumulative impacts might be."
FOR MORE INFORMATION CONTACT: Mary Ellen Vollbrecht (608) 264-8554; Nancy Hill (920) 745-3076 or (920) 294-6480; Mike Cain (608) 266-2177.
