HomeMy WebLinkAbout07/17/07
MINUTES OF THE LAKE ADVISORY COMMITTEE
July 17, 2007
I. CALL TO ORDER
The Lake Advisory Committee (LAC) Meeting was called to order at 4:35
P.M. Members present: Harry Alcorn (Vice Chair), Donna Mankowski, Jim
Marchessault.
Others present: Ross Bintner, Water Resources Engineer; Ken Hedberg,
Council Liaison.
II. APPROVAL OF MINUTES
Motion to approve prior meeting minutes, Marchessault, Mankowski - Pass (3:0)
III. OLD BUSINESS
A. Potential Dock Regulation
Alcorn asked Hedberg for an update of the recent Council Action.
Hedberg summarized the recent council meeting explaining that two
policies were to be created; one for placement of docks the other for
rental.
The LAC discussed why they were being asked to address this issue
again. The LAC discussed the possibility of bringing in experts for a
resource.
Hedberg stated that the first thing you would need to do as a homeowner
would be to figure out where their lot line is. A potential policy would
explain their rights to the homeowner.
Hedberg stated that a legal expert in riparian law could be consulted.
Mankowski stated that the experience of the Lake Minnetonka
Conservation District could be consulted as well.
Bintner stated that a hypothetical policy could give background
information, cite examples, and suggest ways to work with your neighbor
to plan for a variety of lake levels sort of a "toolbox" for residents to
mediate their own issues.
Alcorn asked if the City Council gave a deadline for the LAC to complete
this work. Hedberg answered that they did not.
1
Alcorn suggested that the total water surface and lake usage be
evaluated as part of this effort. Mankowski added that the DNR does this
evaluation. Bintner added that the result of their last survey showed a
large deficit of boat access and parking for trailers.
Alcorn asked who the LAC could appoint to put together next steps.
Bintner stated that it was the responsibility of the committee and there
was nobody to appoint.
Alcorn stated a public hearing might be appropriate to take public input.
Mankowski stated that a mailed survey to lakeshore owners would be a
good tool. Alcorn stated a public hearing would open the question to the
community in general since more than just lake owners use the lake.
Alcorn stated the committee
Bintner stated that there are some hard regulations on dock structures
from the DNR but conflicts that meet DNR regulations but are in the 'grey
area' may still result in lawsuits once a 'good neighbor' policy is created.
Alcorn asked how lakeshore easements that give nearby neighborhood a
right to access the lake. Mankowski added that association docks may
also be covered.
Additional complications were discussed and the LAC agreed that
additional information is needed.
Alcorn asked what kind of action items would be appropriate prior to the
next LAC meeting, suggesting an email communication of a list of
questions be started. Mankowski suggested that a review of White Bear
Lake and Lake Minnetonka regulations be reviewed. Bintner stated that
the DNR regulations were in the packet.
Hedberg suggested that, when ideas on how to move forward immerge
they forward them to Bintner he could collect them. Bintner agreed he
could collate all suggestions and present them at the next LAC.
IV. OTHER BUSINESS
V. STAFF UPDATE
A. Webcam update:
Bintner updated the LAC on progress on the webcam saying the
transformer and the signal booster would be attached soon.
B. Possible LAC boat tour?
The LAC discussed a possible date to review aquatic plans and dock
placement and other lake issues. Bintner suggested that this boat tour
would be LAC only tour since the council does their tour only every other
year.
2
VI. NEW BUSINESS
VII. ADJOURNMENT
THE MEETING WAS ADJOURNED AT 5:45 P.M.
Respectfully submitted,
Ross Bintner
Water Resources Engineer
3
MEETING DATE:
AGENDA #:
PREPARED BY:
AGENDA ITEM:
DISCUSSION:
1!t.l.L
CITY COUNCIL AGENDA REPORT
July 16, 2007
90
Frank Boyles, City Manager
CONSIDER APPROVAL OF A REPORT REGARDING THE CITY'S
AUTHORITY TO REGULATE PLACEMENT OF DOCKS AND WHETHER THE
CITY CAN REQUIRE PROPERTY OWNERS TO MEDIATE DISPUTES
BEFORE BRINGING SUCH MATTERS TO DISTRICT COURT.
Introduction
The purpose of this agenda item is to receive City Council input regarding the
regulation of docks.
Historv
At the May 72007, meeting the City Council received a proposal from staff
recommending a process and timeline for examining current City dock
regulations and recommending whether and what kind of regulations, if any, the
Council should adopt. Attached are the minutes from the May 7 meeting and
the agenda report for information purposes.
After considerable discussion, the Council instead adopted a motion to direct the
City Attorney to prepare a report on:
1. What is the City's authority to regulate the placement of docks; and
2. Can the City require property owners to mediate disputes about the
placement of docks.
Current Circumstances
The City Attorney has prepared a report (attached). The report indicates that the
City may regulate the location of docks as long as the City balances the rights of
the riparian property owner with the public interest. It also states that the City
may not require property owners to mediate the disputes regarding the
placement of docks prior to commencing action in district court.
The City Attorney's conclusions regarding dock regulations are underscored in
the attached Department of Natural Resources handout regarding dock location
and size regulations.
The staff has also done some reflecting on the matter of docks. We have
reviewed the kinds of questions we receive about docks and the regulations (or
lack thereof) which we rely upon for authority. Our research shows that we have
no present authority in City Code or in State rules in the following areas (see
attached matrix):
1. Maximum number of docks on vacant lots or developed parcels
(excepting marinas)
2. Minimum dock setback from property lines
C' DJcun.:~}nts ;]!lrl Settii:qsrbintni.-'~-'(!_ Ot:':JI
inti?;"e! File;'OU<3; 0711')()(' Dock :\;!ediat!on (3)DOC
3. Length of dock
4. Warning signage or lighting for docks.
We have also kept a log of the number and types of concerns we have received
(see attachment). Of the seventeen inquiries we have received seven related to
dock regulations including the number of docks; while eight related to dock
rental. In the case of dock rental, we have regulations to use for enforcement,
but we have not aggressively enforced these provisions: 1) as the magnitude of
the project has been considered to be beyond current resources; and 2)
difficulties associated with determining boat ownership.
ISSUES:
The Council should determine whether it desires regulations of one sort or
another to be established. If not, we would continue to use our current
guidelines. If the Council believes that some additional regulation would be
appropriate, it would be helpful to know if the Council desires policy guidelines or
ordinance provisions. The former are advisory, while the latter are enforceable.
If the Council desires that new policy or ordinances be prepared, it would be
helpful to receive direction regarding process; whether public input should be
solicited and how; whether the Lake Advisory Committee should be consulted or
if staff should simply prepare changes for Council consideration.
FINANCIAL
IMPACT:
If recommended guidelines are established, the City's costs are minimal. If the
Council elects to establish enforceable ordinance requirements then legal fees
and staff time will be added. It may be necessary to hire a seasonal position to
implement ordinance provisions on this topic.
ALTERNATIVES:
1. Take no action which would continue our existing guidelines to the extent
they exist.
2. Direct the preparation of a policy(ies) or ordinance(s) and identify the topics
such as location of docs relative to others, setbacks, number per property,
etc.
RECOMMENDED As determined by the Council.
MOTION:
("'. D()CUn-I~;I-:t:-:) ,:lrl(j
L_OC:;11
r'l int;;lrlet Flies OLK61 Of' Lei)? Dock rvlediatlClrl 13; DOC
Q)
halleland lewis
nilan & johnson PA
Attorneys at LawlP.A.
600 U.S. Bank Plaza South
220 South Sixth Street
Minneapolis, MN 55402-4501
Office: 612.338.1838 Fax: 612.338.7858
www.halleland.com
MEMORANDUM
TO:
City Council
Mayor James Haugen
Frank Boyles, City Manager
FROM:
Suesan Lea Pace, Esq.
Mark J. Girouard, Esq.
DATE:
July 6, 2007
RE:
Regulation of Docks on Prior Lake
At a recent meeting, the Prior Lake City Council discussed the City's authority to regulate the
placement of docks on Prior Lake. From this discussion, two primary questions emerged. First,
what is the City's authority to regulate the placement of docks? Second, can the City require
property owners to mediate disputes arising out of the placement of docks before bringing an
action in district court?
Although more detailed answers have been provided below, the results of research into these
issues can be summarized as follows. First, the City may regulate the placement of docks, but
that authority must be exercised in a manner that balances property owners' riparian rights
against the public interest. Second, the City may not require property owners to mediate their
disputes relating to the placement of docks prior to commencing an action in district court. An
argument can be made, however, that property owners can be required to first attempt to resolve
their dispute through available administrative procedures, such as variance procedures.
First Question Presented
What authority does the City have to regulate the placement of docks?
Discussion
Minnesota law grants cities the express authority to regulate the placement of docks. Section
412.221, subd. 12, provides as follows: "The council shall have power to establish harbor and
dock limits and by ordinance regulate the location, construction and use of piers, docks,
wharves, and boat houses on navigable waters and fix rates of wharfage..." (emphasis added).1
I Although not defined in Section 412.221, the phrase "navigable waters" appears to have a broader
meaning in the context of riparian rights than it does in the context of the Army Corps of Engineers'
DN: 325489
This grant of authority is also evident in DNR permitting rules. For example, Rule 6115.0210
provides that DNR permits are required for docks, unless certain criteria are met. One of those
criteria is that the dock "is consistent with or allowed under local land use controls, as
determined by the local government land use authority." Minn. R. 6115.0210, Subp. 4(A)( 4).
Indeed, even when a DNR permit is required, the dock must still be "consistent with water and
related land management plans and programs of local and regional governments." [d., Subp.
5(C).
The City's authority to regulate docks is, however, constrained by property owners' rights. The
owner of riparian land enjoys the right of access to water that is directly in front of his or her
waterfront property, and "title extends to the low-water mark." State by Head v. Slotness, 185
N.W.2d 530, 532 (Minn. 1971). Riparian rights include the right to build and maintain "docks
on and in front of' riparian land to the point of navigability. [d. Further, a riparian owner "has a
right to make such use of the lake over its entire surface, in common with all other abutting
owners, provided such use is reasonable and does not unduly interfere with the exercise of
similar rights on the part of other abutting owners." Johnson v. Siefert, 100 N.W.2d 689, 697
(Minn. 1960). Riparian rights are subordinate to the public's rights in navigable waters. State v.
Kuluvar, 123 N.W.2d 699, 706 (Minn. 1963). Thus, as reflected by the express grant of power in
Section 412.221, riparian rights are "subject to government regulation in the public interest."
Bartell v. State, 284 N.W.2d 834,838 (Minn. 1979).
In a recent decision involving the placement of docks on Lake Minnetonka, the Minnesota Court
of Appeals addressed the balance between a municipalities' authority to regulate the placement
of docks and a landowner's riparian rights. See Lake Minnetonka Conservation District v.
Canning, 2006 WL 1738252 (Minn. Ct. App. Sept. 19, 2006). The Cannings owned a home on
St. Albans Bay on Lake Minnetonka. Because of their property had converging side lot lines,
they owned only l2 feet of lakeshore, on which a dock had been located since the 1930s. Lake
Minnetonka Conservation District ("LMCD") regulations required that authorized dock use areas
be determined by projecting a property's side lot lines into the lake, and then requiring a five foot
setback from those lines. Because of the odd shape of the Cannings' property, it was essentially
impossible for them to have a dock that would meet the setback requirements within the small
triangle that resulted from the extension of their side lot lines. The Cannings applied for a
variance from the setback requirement. The LMCD's board voted to deny the variance, but
before it had an opportunity to prepare findings, the Cannings withdrew their variance
application. The Cannings continued to use their dock, and the LMCD commenced an
enforcement action. The district court granted summary judgment to the LMCD, and the
Cannings appealed.
regulation of "navigable waters of the United States" under the federal Clean Water Act. For example, in
a 2002 decision involving the impact on riparian rights of the placement of fill in Prior Lake, the
Minnesota Court of Appeals assumed that Prior Lake was a "navigable water" without analyzing whether
it met Corps of Engineers' standards. See Rixmann v. Speilman, 2002 WL 977360 (Minn. App. 2002).
Similarly, certain DNR rules treat the question of whether waters are "navigable" one of depth. See, e.g.,
Minn. R. 6115.020 I, Subp. 4(A) (requiring that access channels built to reach navigable waters be no
more the four feet in depth).
ON: 325489
2
In reversing the district court's grant of summary judgment, the court of appeals noted that the
"rule of straight projection" used by the LMCD to determine riparian rights had been frowned
upon by commentators, but acknowledged that "no single method applies in every case." [d. at
*2. Instead, what was important was that "boundaries are drawn in a fair and equitable manner."
[d. Accordingly, the court reversed the district court's grant of summary judgment, finding that
"the LMCD's strict application of its regulations to [Cannings'] property and reluctance to
consider the equities involved appear to have seriously compromised [Cannings'] riparian
rights." [d. at *3. In remanding to the district court, the court of appeals instructed the district
court to "determine the extent of [the Cannings'] riparian rights subject to reasonable
enforcement of LMCD regulations against [their] property in a manner that is fair and equitable,
while still addressing public safety concerns. [d.
In reaching its decision, the court reaffirmed that the LMCD (like the City) has the statutory
authority to regulate private docks for the benefit of the public and navigation. It also reaffirmed
the standards articulated above, noting that "because riparian rights are always subject to state
regulation in the public interest, a landowner's preexisting and continuing use of his or her
lakeshore property is not a lawful non-conforming use if the LMCD finds other factors, such as
public safety, more important." [d.
Two conclusions can be drawn from this decision. First, although courts recognize the right of
municipalities to regulate the placement of docks through zoning controls, they are likely to look
with disfavor on decisions based on strict and inflexible adherence to a method of determining
riparian rights.2 Second, whatever method a municipality uses to determine permitted dock use
areas, it must do so in a manner that accounts for the equities involved and, if consistent with
public safety concerns, preserves the property owner's riparian rights.
Second Question Presented
Whether the City can require property owners to mediate disputes arising out of the placement of
docks before bringing an action in district court?
Discussion
With respect to zoning matters, Section 462.36l provides that "[a]ny person aggrieved by an
ordinance, rule, regulation, decision or order of a [municipality's] governing body or board of
adjustments and appeals acting pursuant to sections 462.351 to 462.364 may have such
ordinance, rule, regulation, decision or order, reviewed by an appropriate remedy in the district
court." Minn. Stat. ~ 462.361, subd. I (emphasis added). "Only the court can divest itself of
jurisdiction which it has been granted through the legislature." Berens v. Berens, 443 N.W.2d
558, 563 (Minn. Ct. App. 1989). Thus, because the legislature has granted the courts jurisdiction
to hear appeals from zoning matters, the City may not interfere with that jurisdiction by requiring
2 The court acknowledged commentators' preference for a proportionate method based on the shape of the
lake over the "straight projection," noting that the former method was more likely to lead to equitable
results.
DN: 325489
3
property owners aggrieved by the City's zoning decision to engage in mediation before bringing
actions in district court.
That said, Section 462.361 also provides that a municipality may, in district court, "raise as a
defense the fact that the complaining party has not attempted to remedy the grievance" by use of
procedures available for that purpose under sections 462.351 to 462.364. Minn. Stat. S 462.361,
subd. 2. The procedures available under sections 462.351 to 462.364 include applications for
variances and conditional use permits, as well as appeals to the city council from the denial of
such applications. If a court finds that such remedies have not been exhausted, it can require the
complaining party to pursue those remedies, unless the court finds that the use of such remedies
would serve no useful purpose under the circumstances of the case. [d.
In this regard, the Ordinances of the White Bear Lake Conservation District (WBLCD) and
LMCD are instructive.3 Both ordinances include standards for determining authorized dock use
areas, as well as variance procedures for docks that do not meet the districts' respective
standards.4 The WBLCD ordinance also expressly requires that conflicts between property
owners "over the use of an authorized dock use area" should be resolved through the
Ordinance's licensing or variance procedures. WBLCD Ordinance 5, Part III, subd. 2. This
approach is consistent with the requirement in Section 462.361 that parties aggrieved by a city's
zoning decisions may be required to exhaust available administrative remedies, including
utilizing variance procedures.
If the City decides to regulate the placement of docks, a permitting process for those docks that
meet the standards that the City adopts, and a variance procedure for those that do not meet the
City's standards, would (1) provide a mechanism through which the City could balance owners'
riparian rights with public safety concerns, and (2) allow adjacent property owners who feel that
a neighbor's dock interferes with their own rights a venue in which to raise those concerns.
Thus, for example, if an owner of a riparian lot applied for a variance to build a dock that did not
meet with the City's standards, adjacent property owners would receive notice of, and have the
right to speak at, the Planning Commission's hearing on the variance application. The Planning
Commission hearing process would, therefore, provide a mechanism through which disputes
could, in effect, be "mediated."
Please do not hesitate to contact us with any further questions you may have about these issues.
:1 Copies of the WBLCD and LMCD ordinances are attached.
-t As noted above, although the Court of Appeals looked with disfavor on the LMCD's use of lot lines for
determining authorized dock use areas, it did not reject that approach or strike down the LMCD's
ordinance. Rather, it reversed the district court's grant of summary judgment because there were issues of
fact regarding whether the LMCD, during the variance process, reasonably applied its ordinance to, on the
one hand, determine the owners' riparian rights in a fair and equitable manner while, on the other hand,
addressing public safety concerns.
DN: 325489
4
(bJ
State of Mill n esota
DNR Waters
May 10, 2007
DNR General Permit No. 2007-0586, Dock Platforms:
Questions and Answers
Q: Do I need to get individual authorization for my platform?
A: No. The authorization is automatic for single, temporary, dock platforms that do not exceed 10.5
x 16 feet or 170 square feet and that meet the conditions of the permit. Condition No.3 contains
standard language that can be disregarded without penalty for this specific authorization.
Q: Do I need to post a copy of the permit on my property?
A: No. The permit is widely available, and found on the DNR Waters web site and does not need to be
posted at individual locations.
Q: Where can I get a copy of the permit?
A: You can find a copy ofthe permit and our new dock brochure "Docks and Access in Public
Waters" at our website under Recent Developments at:
http://www.dnr.state.mn.lls/waters/index.html
Q: Does the 170 square feet limit for platform size include the dock?
A: If the platform is completely to one side of the dock, such as an "L" shape, the 170 square feet may
be measured separately from the dock width. Ifthe dock is configured as a "T" shape the dock square
footage is included in the 170 square feet. Due to the variety of configurations possible, there will be
cases where a judgment call is needed. Please note, there is no square footage limit on the dock itself.
Only dock platforms are affected by this general permit.
Q: Why was this General Permit issued?
A: DNR General Permit No. 2007-0586 was issued to meet a growing problem. In parts of the state
there has been an evolution of platforms at the end of docks. Over time the platforms have been
getting bigger. Even though there have been regulations on docks for. many years, many unauthorized
large platforms have been installed. In order to deal with this growing problem it was decided that
DNR would increase public information efforts and begin discussions with members of the dock
industry. The temporary GP resolves most platform violations so that enforcement efforts can focus on
the largest structures. It also gives the DNR time to gather input from a cross-section of our
stakeholders, including, lake users, lakeshore owners, dock owners, people in the dock industry,
natural resource professionals, and regulators to develop a reasonable course of action for the future.
Q: Should I go out and buy more dock sections this year to make a 170 square foot dock
platform?
A: This would be at your own risk. Work tmder the General Permit is only authorized until November
30,2007. A new general permit will be issued after review this year.
DNR General Permit No. 2007-0568, Dock Platform: Q & A
Page 2
Q: Do I still need to get local permits?
A: This permit does not release the permittee from any rules, regulations, requirements, or standards
of any applicable federal, state, or local agencies. Local permits may still be needed.
Q: I thought docks were only to be used for reaching navigable depths. Does this General
Permit grant additional riparian rights to owners of shoreland?
A: This permit, as all DNR Public Waters permits, does not grant any additional property rights or
interests.
Q: What does permit Condition No. 12 mean when it says that dock platforms shall be sized
consistent with the length of shoreline owned? Does that mean that the owner of 500 feet of
shoreline is allowed a larger dock than the owner of 100 feet of shoreline?
A: Condition No. 12 is a reminder that not alllakeshore is suitable for all structures. The shoreline
owner is still prohibited from obstructing navigation or creating a water safety hazard. If the lots are
narrow, on a narrow channel, or the curve of the lakeshore is such that docks and platforms would
obstruct navigation or cause a safety hazard, then a dock or platform may not be feasible and possibly
prohibited. The existing laws regarding obstruction and safety are still enforceable.
Q: What is the definition of "detrimental to significant fish and wildlife habitat" in condition No.
15?
A: There is no definition in Minnesota Rule or Statute. Condition No. 15 and several other
Conditions are restatements of items already in MN Rules, Part 6115.0210, subparts 3. and 4.
Significant fish and wildlife habitat will generally include native vegetation, including emergent
plants; often the first kind of vegetation to disappear from the near shore area. If a location is in
question, please consult your local DNR Fisheries or Wildlife manager.
Q: Condition No. 18 states that the "dock platforms shall be the minimum size necessary to meet
the water related needs of the permittee." What does that mean?
A: The intent of this condition is to discourage the use oflarger platforms for non-water related
activity, such as barbequing, screened enclosures and other activities that are better suited to the land.
Some shoreline owners have indicated a platform is needed for water-oriented activities such as
supervision of children when the shoreline is unusable due to steep slopes or if it has been restored to a
wide buffer of native vegetation.
Q: What are the effects of structures over public waters?
A: The research indicates that fragmentation of continuous areas of vegetation and shading of aquatic
plants are significant impacts of docks, potentially changing species composition. Another, possibly
more significant impact is the activity associated with the dock, such as vegetation control, disturbance
of sediment, and the occupation of public waters by watercraft, lifts, and canopies. The more
watercraft moored and disturbance of the sediments and aquatic vegetation, the greater the negative
impact to the near-shore habitat and ecology. Larger structures, especially when close together, also
effectively reduce the amount of lake surface available for public use, essentially privatizing part of a
public resource.
May 10, 2007
@
State of Minnesota
Department of Natural Resources
Waters
April 26, 2007
RE: General Permit No. 2007-0586, Temporary Authorization of Dock Platforms
To Whom It May Concern:
Attached is General Permit No. 2007-0586, which authorizes the installation of a single,
temporary platform at the lake end of a dock. The dock shall not exceed 8 feet wide. The
platform shall not exceed 10.5 feet by 16 feet, or 170 square feet, and shall be consistent
with all conditions of the permit.
After discussion about the growing number of dock platforms on Minnesota lakes, we have
decided to issue this General Permit to temporarily authorize most of these platforms.
This temporary, General Permit will expire November 30, 2007 and will then be
reevaluated. It is our intention to reissue a general permit in 2008 for a period of 5 years.
The reissued permit will reflect our findings and input from stakeholders in this matter.
Please be sure to read all provisions and limitations that are part of General Permit No.
2007-0586. If you have any questions, please contact your Area Hydrologist or Tom
Hovey of this office at 651.259.5654 or bye-mail attom.hovey({i!dm.state.nm.us.
Sincerely,
DNR Waters
4~~~-<--
Kent Lokkesmoe, Director
~
IIB'AR1BI'IF
IIAMAL AESCUlCES
PUBLIC WATERS
WORK
GENERAL PERMIT
GENERAL
Permit Number
2007 -0586
Pursuant to Minnesota Statutes, Chapter 103G, and on the basis of statements and information contained in the
pennit application, letters, maps, and plans submitted by the applicant and other supporting data, all of which are made a part
hereof by reference, PERMISSION IS HEREBY GRANTED to the applicant to perform the work as authorized below:
Public Water County
All Public Waters All
Name of Pennittee Telephone Number (Include Area Code)
Governmental Subdivisions and the General Public N.A.
Address (No. & Street, RFD, Box No., City, State, Zip Code)
- Various -
Authorized Work:
Install a single, temporary platform at the lake end of a dock. The dock shall not exceed 8 feet wide.
The platform shall not exceed 10.5 feet by 16 feet, or 170 square feet; and shall be subject to all the
conditions and requirements of this permit.
Note: This authorization expires on November 30, 2007 and will be evaluated for re-issuance by
February 15, 2008.
Purpose of Pennit: Expiration Date Of Pennit
Temporary authorization of dock platforms November 30, 2007
'roperty Described As:
I Various. The permittee must own, control, or have permission to access the land on which the dock
platform is located.
This permit is granted subject to the fOllowing CONDI110NS:
1. The pennittee is not released from any ruies, regulations, requirements, or standards of any applicable federal, state, Of
local agencies; including, but not limited to, the U.S. Anny Corps of Engineers, Board of Water and Soil Resources, MN
Pollution Control Agency, watershed districts, water management organizations, county, city and township zoning. This
permit does not release the pennittee of any pennit requirement of the st. Paul district, U.S. Army Corps of Engineers, Anny
Corps of Engineers Centre, 190 Fifth Street East, St. Paul, MN 55101-1638.
2. This pennit is not assignable by the pennittee except with the written consent of the Coo'Imissioner of Natural Resources.
3. The permittee shall notify the Area Hydrotogist at least five days in advance of the commencement of the work authorized
hereunder and notify him/her of its completion within fIVe days. The Notice of Permit issued by the Commissioner shall be
kept securely posted in a conspicuous place at the site of operations.
4. The pennittee shall make no changes, without written permission previously obtained from the Commissioner of Natural
Resources, in the dimensions, capacity or location of any items of work authorized hereunder.
5. The permittee shall grant access to the site at all reasonable times during and after construction to authorized
representatives of the Commissioner of Natural Resources for inspection of the work authorized hereunder.
6. This pennit may be terminated by the Commissioner of Natural Resources at any time deemed necessary for the
conservation of water resources of the state, or in the interest of pubtic health and welfare. or for vlotation of any of the
conditions or applicable laws of this permit, untess otr.efWise provided in the conditioos.
7. Construction work authorized under this pennit shall be completed on or before the date specified above. The permittee
may request an extension of the time to complete the project, stating the reason thereof. upon written request to the
Commissioosr of Natural Resources.
,.
In all cases where the permittee by performing the work authorized by this permit shall involve the taking, using, or
damaging of any property rights or interests of any other person or persons, or of any publicly owned lands or improvements
thereon or interests therein, the permittee, before proceeding, shall obtain the written consent of all persons, agencies, or
authorities concerned, and shall acquire all property, tights, and interests needed for the work.
9.
This pennit is permissive only. No liability shall be imposed by the State of Minnesota or any of its officers, agents or
employees, officiaUy or personally, on account of the granting hereof or on account of any damage to any person or property
resulting from any act or omission of the permittee or any of its agents, employees, or contractors. This permit shall not be
construed as estopping or Iimiling any legal claims or tight of action of any person other than the state against the permittee,
its agents, employees, or contractors, for any damage or injury resulting from any such act or omission, or as estopping or
limiting any legal claim or right of action of the state against the permittee, its agents, employees, or contractors for violation
of or failure to comply with the pennit or applicable conditions.
10. Any extension of the surface of public waters from work authorized by this permit shall become public waters and left open
and unobstructed for use by the public.
11. Where the work authorized by this permit involves the draining or filling of wetlands not subject to DNR regulations, the
pennittee shall not initiate any work under this permit until the permittee has obtained official approval from the responsible
local government unit as required by the Minnesota WetJand COO5efVaOOn Ad.
12. The dock platform authorized by this permit shall be sized consistent with the length of shoreline owned. The structure shoold
be set back from the underwater extension of the lot lines enough to allow reasonable navigation, unless property owners
share a common dock.
13. The structure shall not be constructed with materiafs that would have a detrimental impact on aquatic organisms or water
quality .
14. The structure shall not obstruct navigation or create a water safety hazard.
,oJ. The structure shall not be detrimental to significant fish and wildlife habitat or be located in a posted fish spawning area.
16. The structure shall not have walls, a roof, or sewage facilities, or be used for human habitation or as a boat storage structure.
17. The structure will allow the free flow of water befleath it
18. Dock platforms shaii be the minimum size necessary to meet the water related needs of the permittee.
Authorized Signature Title Date
/I-~I
.~:'"v\/ (/"\~/~.....",,,,<--_ I)P{2/L 2t, "2007
Kent Lokkesmoe Director, DNR Waters
Version 09/29/04
This information is available in an alternative format upon request
~.: ~.
Cl..lr;..... I..
"1 0"1- '-
~R
t!~';~1"I
Questions and Answers about Minnesota Water Laws
~~
Basic Water Laws
Who owns the bed of a lake, marsh, or watercourse?
When a waterbasin or watercourse is navigable under the federal test, the State of Minnesota owns the bed below the
natural ordinary low water level [see Minnesota Statute 84-032; Lamprey v. State, 52 Minn. 1981,53 N.W. 1139 (1983)
and United States v. Holt State Bank, 270 U.S. 49 (1926)]. The federal test used for navigability is "when they are used,
or are susceptible of being used, in their natural and ordinary condition, as highways for commerce, over which trade or
travel are or may be conducted." [See State v. Longyear Holding Co., 224 Minn. 451, 29 N.W. 2d 657 (1947).] Ifa court
has found that a lake is non-navigable and meandered, the shore land owners own the bed ofthe lake in severalty. [See
Schmidt v. Marschel, 211 Minn. 543, 2d 121 (1942).] If a stream is non-navigable but has been meandered, the shore land
owners own to the thread (centerline) of the stream. If a lake or stream is non-navigable and not meandered, ownership
of the bed is as indicated on individual property deeds.
What is the ordinary high water level?
The ordinary high water level is an elevation that marks the boundary of
the lake, marsh, or stream bed. It is the highest level at which the water
has remained long enough to leave its mark upon the landscape. [See
Lake Minnetonka Improvement, 56 Minn. 513, 58 N.W. 295 (1894), and
Minnesota Statutes, Section 103G.005, subd. 14.] Generally, it is the
point where the natural vegetation changes from predominantly aquatic
to predominantly terrestrial.
~
...
\ __!.t__n__~1tiIllIblM~_
11_*_
_1Ot~ ,\PlI
___ A_ _ Lio<HI
\_~ ...-..:::... -------
--...,-v..- ~
What are riparian rights?
Riparian rights are property rights arising from owning shore land. They
include the right to wharf out to a navigable depth; to take water for domestic and agricultural purposes; to use land
added by accretion or exposed by reliction; to take ice; to fish, boat, hunt, swim; and to such other uses as water bodies
are normally put [see Sanborn v. People's Ice Co., 82 Minn. 43, 84 N.W. 641 (1900) and Lamprey v. State, 52 Minn. 181,
53 N.W. 1139 (1883)]. The riparian owner has the right to use the lake over its entire surface [see Johnson v. Seifert, 257
Minn. 159, 100 N.W. 2d 689 (1960)].
What are riparian duties?
It is the duty of the riparian owners to exercise their rights reasonably, so as not to unreasonably interfere with the
riparian rights of others [see Petraborg v. Zontelli, 217 Minn. 536, 15 N.W. 2d 174 (1944)]. They cannot dike off and
drain, or fence off, their part of the waterbody [see Johnson v. Seifert, 257 Minn. 159, 100 N.W. 2d 689 (1960)]. It is a
public nuisance and a misdemeanor to "interfere with, obstruct, or render dangerous for passage waters used by the
public" [see Public Nuisance Law, Minnesota Statutes 609.74].
What are public rights?
Where the public is a riparian landowner, such as a public road abutting the water or at a public access, the public has
riparian rights. [See Flynn v. Beisel, 257 Minn. 531, 102 N.W. 2d 284 (1960).]
What is considered trespassing when the public seeks access to a water body?
The belief that the state owns a strip of land around all Minnesota lakes for public use is false. Riparian property
(property abutting a lake, river, or wetland) is either privately or publicly owned. The general public can access water
bodies or watercourses via public property, but not through private property. Individuals entering private property
without permission from the landowner are trespassing and may be prosecuted under the state trespass laws. It is illegal
to trespass on private property in order to gain access to a water body or watercourse without first obtaining the verbal or
written permission from a landowner. A person who has legally gained access to a water body may use its entire surface
for recreation, such as boating, swimming, or fishing. Using the underlying bed of the lake or river, if access was gained
legally, is called "incidental use"; the use of the bed or bottom is incidental to the water body's primary use. Examples
include poling or anchoring a boat, wading on the bed to swim or fish, and anchoring decoys or traps.
3-2006
Page I of 4
Water Laws in Minnesota
Regulation and Water Use
What are waters of the state?
Waters of the state are any surface waters or underground waters, except those surface waters that are not confined but
are spread and diffused over the land [see Minnesota Statutes, Section 1030.005. subd. 17]. This includes all lakes,
ponds, marshes, rivers, streams, ditches, springs, and waters from underground aquifers regardless of their size or
location.
What priorities are set for water use?
If there is not enough water for everyone, Minnesota law sets general
priorities for which users can appropriate waters of the state. [See Minnesota
Statutes, Section 1030.261.] These priorities, from highest priority to lowest
priority, are as follows:
1. Domestic water supplies and power production with contingency water use plans
2. Uses of water consuming less than 10,000 gallons per day
3. Agricultural irrigation and processing of agricultural products
4. Power production without contingency water use plans
5. Uses, other than agricultural irrigation, processing of agricultural products, and power production
6. Nonessential uses of water
When is a DNR permit needed to appropriate or use water?
A water appropriation permit from the Minnesota Department of Natural
Resources (DNR) is needed to appropriate or use waters of the state for any
domestic use serving more than 25 persons and for any other use that exceeds
10,000 gallons in anyone day or 1,000,000 gallons in a year. [See Minnesota
Statutes, Section 1 03A.20 1 and Section 1030.271, subd. 1, and Minnesota
Rules, Part 6115.0600.]
What are the limitations on irrigation from ground water?
Except in areas where ground-water availability is already known, the permit applicant must run a pumping test at his or
her own expense. The permit will be issued if the test shows there is enough water both for the applicant and for existing
wells in the vicinity. If the pumping draws down water below the reach of nearby domestic wells, the applicant must
develop a solution with those affected well owners before a permit will be issued. [See Minnesota Statutes, Section
1030.295.]
What are the limitations on irrigation from surface water?
Minnesota law sets water use limits for waterbasins and watercourses and discourages taking water from waterbasins of
less than 500 acres. [See Minnesota Statutes, Section 1030.285 and 1030.261.] On any waterbasin, the total of all
withdrawals cannot be more than one-half acre- foot per acre per year (6 inches of water taken off the surface of the
waterbasin). The DNR can also establish minimum protection elevations for waterbasins and protected flows for
watercourses. [See Minnesota Statutes, Section 1030.285, subds. 2 and 3.]
Regulation of Public Waters and Public Waters Wetlands
What are public waters and public waters wetlands?
Public waters are all waterbasins and watercourses that meet the criteria set forth in Minnesota Statutes, Section
1030.005, subd. 15, and are designated on the DNR's public waters inventory maps. Public waters wetlands include all
type 3, 4, and 5 wetlands (as defined in U.S. Fish and Wildlife Service Circular No. 39, 1971 ed.) that are 10 or more
acres in rural areas and 2Yz or more acres within cities and are designated on the DNR's public waters inventory. [See
Minnesota Statutes, Section 1030.005, subd. 18.]
3-2006
Page 2 of 4
Water Laws in Minnesota
When is a DNR permit needed?
A DNR public waters work permit is needed to do any work that will change or diminish the course, current, or cross
section of any lake, wetland, or watercourse that is designated as public waters or public waters wetland on the DNR's
public waters inventory maps. Any work done below the ordinary high water level of public waters or public waters
wetlands requires a permit. Examples of such work include draining; filling; dredging; channelizing; constructing dams,
harbors, or permanent offshore structures; and placement of bridges and culverts. [See Minnesota Statutes, Section
103G.245, subd. I, and Minnesota Rules, Part 6115.0150.]
What is the public waters inventory?
This is a map and list prepared by the DNR showing all public waters and public waters wetlands. [See Minnesota
Statutes, Section 103G.201.] These maps can be viewed at all DNR offices, local soil and water conservation district
offices, local watershed district offices, and many county offices, as well as on the DNR web site (www.dnr.state.mn.us/
waters/watermgmt_ section/pwi/maps.html). Copies may also be obtained from the Minnesota Bookstore located at 660
Olive Street, St. Paul, MN 55155, telephone 651-297-3000 (metro area) or 1-800-657-3757 (statewide).
Is the state's regulation of public waters and public waters wetlands constitutional?
The Minnesota Supreme Court has held that DNR's inventory of public waters and public waters wetlands, and the
DNR's regulation of work that changes the course, current, or cross section of public waters and public water wetlands
are clearly constitutional. [See State v. Kuluvar, 266 Minn. 408, 418,123 N.W. 2d 699,706-707 (1963); State v. Olsen,
275 N.W. 2d 585 (Minn. 1979); and Minnesota Supreme Court file number C5-86-332, decided on December 24, 1987.]
Regulation of Lands Adjoining Public Waters and Public Waters Wetlands
What are the DNR's land use programs?
The DNR oversees four programs regulating the use of the shores of water basins and watercourses: the Shoreland
Management program, the Floodplain Management program, the state Wild and Scenic Rivers program, and the
Mississippi River Critical Area. Under each program (except Mississippi River Critical Area), the DNR establishes
minimum land use standards, which local units of government must adopt and enforce through their zoning ordinances.
Minimum standards for the Mississippi River Critical Area were established through executive order. Administration of
these ordinances, which must be approved by the DNR, is locally controlled, except for DNR certification approval of
planned cluster developments, inconsistent plats, and variances along wild and scenic rivers. Always check with local
zoning officials to learn what ordinance provisions apply to your property.
How does shoreland management apply to local zoning?
Shoreland zoning incorporates ordinances that apply to all land within 1,000 feet of the ordinary high water level of a
public water, lake, pond or flowage (or sometimes a public waters wetland designated by a local unit of government), and
within 300 feet of a public waters watercourse or to the landward extent of a designated floodplain on a public waters
watercourse (where the floodplain is wider than 300 feet). The DNR classifies each waterbody as either natural
environment, recreational development, or general development. The DNR also classifies river reaches as either remote,
forested, transition, agriculture, urban, or tributary. The allowable use(s) ofland, lot sizes, lot widths, structure setbacks,
and sanitary system setbacks are different for each class. The state's minimum shoreland development standards received
a major update, effective in 1989, that focused on additional
issues, such as stormwater management, wetland alterations, best
management practices for forestry and agriculture, upgrading of
nonconforming sewage systems, and protection of (nearshore)
shore impact zones. Eighty-five Minnesota counties and about
160 cities have a shoreland zoning ordinance. [See Minnesota
Statutes, Section 103F.201-103F.221, and Minnesota Rules, Parts
6120.2500-6120.3900.] In 2005, as part of Governor Pawlenty's
Clean Water Initiative, the North-Central Lakes Pilot Project
developed voluntary alternative shore land development standards
3-2006
Page 3 of 4
Water Laws in Minnesota
to address emerging trends and issues. See the following web site for information on the process and standards:
www.dnr.state.mn.us/waters/watermgmt_ section/shoreland/shoreland _rules _ update.html
What is floodplain zoning?
Land within the floodplain is divided into zones, and local
ordinances specify the uses permitted in each zone. Floodplain
zoning ordinances apply to lakes, as well as streams, and cover all
land inundated by the lOO-year flood (the flood having a I-percent
chance of being equaled or exceeded in any single year). The
jloodway is that part of the floodplain required to pass 100-year
flood waters without increasing the water surface more than a
designated height. Only minimal encroachments and very limited
construction are allowed in the floodway. The area of the floodplain
outside the floodway is called the jlood fringe. Development
conforming to the community's floodplain zoning and building standards is generally allowed in the flood fringe, but it
must be placed on fill or floodproofed high enough to keep it dry during a 100-year flood. The emphasis of the program
is to minimize flood damage by promoting nonstructural remedies instead of construction of costly levees, dikes, or
dams. [See Minnesota Statutes, Section 103F.lOl-l03F.155, and Minnesota Rules, Parts 6120.5000-6120.6200.]
What is Wild and Scenic Rivers zoning?
Wild and Scenic River zoning is the ordinances that apply to those rivers and adjacent lands that have been designated
under the Minnesota Wild and Scenic Rivers Act or the Lower St. Croix Wild and Scenic River Act. These are the St.
Croix River from the Taylors Falls dam to the Mississippi River, the Kettle River in Pine County, the Mississippi River
from the city of St. Cloud to the cities of Ramsey and Dayton, the North Fork of the Crow River in Meeker County, the
Minnesota River from the Lac qui Parle dam to the city of Franklin, the Rum River from Ogechie Lake to the city of
Anoka, and the Cannon River from the city of Faribault to the Mississippi River. The district boundary established at the
designation hearing could not include more than 320 acres of land per river mile on both sides of the river. The boundary
generally follows a government land survey line or road and includes areas that are visible from the river or are
environmentally sensitive. River segments are classified as wild, scenic, or recreational (urban or rural for the Lower St.
Croix) and have associated dimensional standards, land uses, and alteration standards. [See Minnesota Statutes, Sections
103F.30l-103F.35l, and Minnesota Rules, Chapter 6105.]
What is Mississippi River Critical Area zoning?
The Mississippi River Critical Area zoning is the ordinances for a 72-mile section of the Mississippi River, including an
adjacent corridor of land, extending from the cities of Dayton and Ramsey downstream to the confluence with the St.
Croix River. The Mississippi River Critical Area was established through executive order and was permanently
designated in Minnesota Statues 1160. The Mississippi River Critical Area boundary coincides with the boundary of the
Mississippi National River and Recreation Area, a unit of the National Park Service. All communities along the corridor
were required to adopt plans and ordinances to meet the minimum standards and guidelines contained in Executive Order
79-19. The DNR must approve any Critical Area plan or ordinance amendments. [See Minnesota Statutes l16G,
Minnesota Rules parts 4410.8100 to 4410.9910, and Executive Order 79-19, available on the DNR's web site].
DNR Contact Information
DNR Information Center
DNR Waters in St. Paul:
500 Lafayette Road
St. Paul, MN 55155-4032
(651) 259-5700
Twin Cities: (651) 296-6157
Minnesota toll free: 1-888-646-6367
Telecommunication device for the deaf (TDD): (651) 296-5484
TDD toll free: 1-800-657-3929
DNR Waters website lists Area Hydrologists:
www.dnr.state.mn.us/waters
CIPNmIBT ",
'lA'Il.NI. RESCUQS .
This information is available in an alternative format on request.
Equal opportunity to participate in and benefit from programs of the Minne-
sota Department of Natural Resources is available regardless of race, color,
national origin, sex, sexual orientation, marital status, status with regard to
public assistance, age, or disability. Discrimination inquiries should be sent
to Minnesota DNR, 500 Lafayette Road, St. Paul, MN 55155-4049; or the
Equal Opportunity Office, Department of the Interior, Washington, DC 20240.
3-2006
Page 4 of 4