Plain Language Rule Analysis
Background
Since August 1, 1966, when the Wisconsin Legislature passed the Water Resources Act (as created by
Chapter 614, Laws of 1965), the purpose and direction for shoreland ordinances has been: “To aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience, and general welfare."
Now codified at s.
281.31, Stats., Wisconsin's Water Resources Act utilized a novel approach toward comprehensive pollution control by supplementing state-level regulation of direct polluters (industries and municipal treatment plants) with county-administered shoreland ordinances, sanitary codes, and subdivision regulations to control indirect pollution sources. The law required the state to establish practical minimum standards and workable regulations in an area where there had been little experience. The act's requirement to enact shoreland ordinances is part of the state's active public trust duty, which requires the state to protect navigable waters not only for navigation, but also to protect and preserve those waters for fishing, recreation and scenic beauty.
Chapter
NR 115 of the Wisconsin Administrative Code contains minimum shoreland zoning standards for ordinances adopted under s.
59.692, Stats., for the purposes specified in s.
281.31 (1), Stats.
Authority
The proposed amendments to ch.
NR 115 are intended to ease the administrative burden of a county to implement the current rule and to give a county more flexibility in how they regulate land use in shorelands. The proposed amendments will also give shoreland property owners more land use options, while still protecting the public interest in navigable waters and adjacent shorelands. Section
281.31 (6), Stats., provides: “Within the purposes of sub. (1), the department shall prepare and provide to municipalities general recommended standards and criteria for navigable water protection studies and planning and for navigable water protection regulations and their administration." Section
59.692 (1m), Stats., provides that each county shall zone by ordinance all shorelands in its unincorporated area. Section
59.692 (1) (c), Stats., defines “shoreland zoning standard" to mean “a standard for ordinances enacted under this section that is promulgated as a rule by the department." Section
227.11 (2) (a), Stats., gives the department the authority to promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purposes of the statute.
Revision Rationale
Chapter
NR 115 was created to protect water quality, fish and wildlife habitat and scenic beauty along navigable lakes and rivers by establishing statewide minimum standards including lot sizes, building setbacks from the water's edge, and limits on tree removal. Controlling the density of development along the waters and creating a buffer around them was the best management practice at the time the rule was adopted in 1970. In response to concerns raised by the counties regarding the implementation and administration of the state's current shoreland zoning standards in ch.
NR 115, the department agreed to revise the regulations to address key concerns relating to the impervious surface standards and nonconforming structure standards and to clarify a vegetative management and reporting standard. The proposed revisions to ch.
NR 115 are necessary to address the shoreland areas of the state that were developed prior to the revisions in ch.
NR 115 went into effect on February 1, 2010. Many of these areas already exceed the impervious surface standard and/or the maximum impervious surface standard. Any proposed development on these properties would result in an administrative and implementation burden on counties, which would have to require the property owners to either conduct mitigation for any future expansions or receive a variance. In addition, the proposed changes allow for a one time lateral expansion in the setback, providing more flexibility for property owners with nonconforming structures that are structurally unable to expand vertically and are unable to expand beyond the setback. Additional changes are minor clarifications of the vegetative management and reporting requirements of the shoreland zoning standards in ch.
NR 115.
Revision Process
The revision package is based on concepts developed, negotiated and compromised during numerous meetings with the Wisconsin County Code Administrators, who represent the county planning and zoning staff, and the department. The department also met with the other partners to the shoreland zoning program including representatives from the Wisconsin Realtors Association, Wisconsin Builders Association, River Alliance and Wisconsin Lakes to obtain their input. The dedication and determination of these individuals proves how important our water resources and adjacent shorelands are in the state.
Major provisions and new requirements
While most of the provisions are minor, the major provisions of the proposal include changes to the impervious surface limits to provide more flexibility for properties that are current developed and already exceed the current maximum impervious surface limit of 30%. The rule revisions also provide more flexibility for property owners by allowing for some lateral expansion of nonconforming structures within the setback. Other minor changes to the rule include clarification of the vegetation management standards and reporting standards.
Federal regulatory analysis
There is no specific existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule.
State Regulatory Analysis
Wisconsin's Shoreland Management Program is a partnership between state and local governments that requires development near navigable lakes and streams to meet statewide minimum standards. Each Wisconsin county has shoreland ordinance provisions that protect water resource values, water quality, recreation and navigation, fish and wildlife habitat, and natural scenic beauty. Other than the nonconforming structure and substandard lot standards, county ordinances must meet or exceed the minimum state standards contained in ch.
NR 115, Wisconsin Administrative Code. The shoreland provisions include:
•
setbacks for structures from waterways
• minimum lot sizes
• controls on removing shoreland vegetation
• standards for land disturbance activities
• protection of wetlands
• restrictions on improvements to nonconforming structures
Current development trends continue to pose major challenges to the shoreland program. As new development occurs, long continuous sections of natural shorelines are broken into small fragmented patches. This reduces the availability and quality of habitat needed by shoreline-dependent species, such as loons, eagles, osprey, and many amphibian species, particularly in northern Wisconsin. Along highly developed shorelines, preserving even small amounts of near-shore and fringe wetland habitat becomes critical for maintaining natural reproduction of fish populations. As smaller seasonal cabins are replaced with larger four-season homes, concerns over the size of lots and carrying capacity of the land arise. In addition, development in areas typically considered undevelopable, and second and third tier development, are now problems that the shoreland program did not predict nearly 40 years ago.
Much has changed in the way we develop waterfront property and the demands we place upon our developed areas. Changes in this program will equip the county with the tools and techniques needed to protect these valuable resource areas while allowing reasonable development to continue for the foreseeable future.
State comparison
Minnesota
The State of Minnesota has a shoreland program that is also being revised. The Minnesota DNR's website states that an increase in development pressure around lakes and rivers has raised concerns about water quality and impacts on lake use, therefore resulting in the need to review current shoreland minimum standards in the state. Minnesota bases their shoreland program on statewide classification of all surface waters based on size and shape, amount and type of existing development, road and service accessibility, existing natural character of the water and other parameters. Waterbodies are classified as natural environment lakes, recreational development lakes, general development lakes, remote river segments and forested rivers. Each class has specific standards associated with the shoreland ordinance including building setbacks, lot sizes and widths, bluff impact zones, slope requirements, impervious surface limits and others. The state has a somewhat similar standards in treatment of nonconforming structures and limits impervious surfaces to 20%, which is a lower limit than Wisconsin's current rule and would be significantly less than the proposed highly developed shoreline standard in the proposed rule.
Michigan
The State of Michigan has a wild and scenic rivers protection program to provide special protection to designated rivers. This program is managed similarly to other wild and scenic river protection programs nationwide. The protection standards are outlined in Natural River Zoning Rule 281 which outlines standards for river setbacks, minimum lot widths, special vegetation management standards, and nonconforming structure improvements. Additional activities that may have potential impacts to the public trust or riparian rights, or that may impair or destroy the waters or other natural resources of the state, including inland lakes and streams, the Great Lakes, wetlands, and groundwater, are regulated by the Department of Environmental Quality.
Illinois
The State of Illinois regulates inland waters through an administrative code detailing conservation measures for public waters. The purpose of the program is to protect the public's interests, rights, safety and welfare in the State's public bodies of water. More specifically, construction is regulated to prevent obstruction to, or interference with, the navigability of any public body of water; encroachment on any public body of water; and impairment of the rights, interests or uses of the public in any public body of water or in the natural resources thereof.
Indiana
The State of Indiana regulates lake-side construction activities and provides standards for the activities along and within public freshwater lakes. The state also has standards for nonconforming uses and nuisances including the removal of a lawful nonconforming use if the structure or facility affects public safety, natural resources, natural scenic beauty or the water level of a public freshwater lake.
Iowa
The state of Iowa has an integrated watershed management and surface water regulation program which includes motor regulations and slow-no-wake areas to reduce shore erosion, and an invasive species program to help safeguard the biological integrity of the lakes and river systems in Iowa. Iowa does not have a specific program for shoreland management or shoreland ordinance requirements. Most of Iowa's environmental programs are directly mandated by the federal government and required components of Environmental Protection or Federal Emergency Management Agency programs.
Summary of factual data
This rule revision was the result of a number of meetings with county zoning officials to discuss their concerns with implementing and administering the current standards in ch.
NR 115. The department has also met with its other stakeholders to discuss proposed changes and garner their input on the rulemaking process. The meetings with county zoning staff evaluated the new shoreland zoning standards that went into effect on February 1, 2010, and how those regulations would be applied and administered by the local governments. Some key problem areas were identified. The proposed changes to ch.
NR 115 are intended to address those key problem areas, clarify the standards and reduce the administrative burden on counties.
A 1997 department study “Effectiveness of Shoreland Zoning Standards to Meet Statutory Objectives: A Literature Review with Policy Implications" showed that existing shoreland standards were not adequately achieving the statutory objectives of the program to protect critical fish and wildlife habitat, natural scenic beauty, and water quality of lakes and streams. Scientific studies during the 1990's found that fish and insect populations and water quality decline dramatically when watershed impervious surfaces reach 8-12%. A northern Wisconsin study found significant declines in populations of green frogs and key bird species on developed shorelines. When purchasing waterfront property, people inherently value clean water, plentiful wildlife and scenic vistas. A study in Maine found that waterfront property values would decline by 5% with a three-foot decline in lake water clarity. More details on these and other supporting studies are provided in the Environmental Assessment for this rule revision.
Anticipated costs incurred by the private sector
Submission of an application for a permit under the local ordinances will result in costs to the applicant to provide the needed background information. The application costs will vary by individual permit application depending on the type of project undertaken and the level of detailed information needed to provide local authorities sufficient background information to make a determination.
Effect on Small Business
Small businesses are not expected to be significantly impacted by the proposed rule changes. Lot size and setback requirements have been imposed on businesses within the shoreland zone since the inception of the program back in the late 1960s. Commercial development has never been, and is not in this proposal, singled out as a different use. The standards apply to small business just like any other development. Standards contained in this rule will allow current facilities to be maintained, and in some cases expand, depending upon the location of the facility. The rule requires local units of government to adopt shoreland ordinances based on these rules. The local units of government will enforce the local ordinances.
Pursuant to ss.
227.114 and
227.137, Wis. Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses. The Department conducted an economic impact analysis in consultation with businesses, business associations, local governmental units, and individuals. The Department determined that this rule would not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state.
Environmental Impact
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Agency Contact Person
Heidi Kennedy
Department of Natural Resources
P.O. Box 7921
Madison, WI 53707-7921
Telephone: (608) 261-6430
Email:
heidi.kennedy@wisconsin.gov.
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DOA-2049 (R03/2012)
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Division of Executive Budget and Finance
101 East Wilson Street, 10th Floor
P.O. Box 7864
Madison, WI 53707-7864
FAX: (608) 267-0372
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ADMINISTRATIVE RULES
Fiscal Estimate & Economic Impact Analysis
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1. Type of Estimate and Analysis
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X Original
⍽ Updated
⍽ Corrected
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2. Administrative Rule Chapter, Title and Number
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Ch. NR 115, Wisconsin's Shoreland Protection Program
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3. Subject
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Modify the rule relating to the impervious surface limits, nonconforming structure provisions, vegetation standards and administrative procedures to reduce the administrative burden on counties.
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4. Fund Sources Affected
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5. Chapter 20, Stats. Appropriations Affected
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X GPR ⍽
FED ⍽ PRO ⍽ PRS
⍽ SEG ⍽ SEG-S
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6. Fiscal Effect of Implementing the Rule
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X No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
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⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Cost
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7. The Rule Will Impact the Following (Check All That Apply)
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⍽ State's Economy
X Local Government Units
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X Specific Businesses/Sectors
⍽ Public Utility Rate Payers
⍽ Small Businesses (if checked, complete Attachment A)
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8. Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes
X No
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9. Policy Problem Addressed by the Rule
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The modifications to Wisconsin's minimum shoreland zoning standards (NR 115) in 2009, generated some concerns for counties that certain provisions are difficult to implement or are administratively burdensome. The current proposal is to clarify and modify certain sections of the code to reduce the implementation concerns and administrative burden on counties. See Attachment Part I for a more detailed explanation.
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10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
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Groups likely to be impacted or interested in the proposed rule include local governments, businesses located along the waterfront, builders, contractors, landscapers, building centers, nurseries, and garden centers and particular property owners within the shoreland zone. Recreational users of lakes and rivers may experience some negative impacts from the proposed rule if there is a decline in water quality, fish and wildlife habitat or natural scenic beauty due to increased impervious surface limits for highly developed shorelines and lateral expansion of nonconforming structures.
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11. Identify the local governmental units that participated in the development of this EIA.
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No local governments have participated in the development of this draft EIA. However, the department will solicit comments from local governments on this draft EIA and will send a notice to the Wisconsin County Code Administrators, Wisconsin Counties Association, Wisconsin Towns Association and the League of Municipalities.
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12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
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See Attachment Part II.
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13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
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The primary benefit of these proposed rule revisions is to ease the administrative burden on counties and provide more flexibility for properties that are either highly developed and/or have nonconforming principal structures. The proposed rule revisions will also establish clear and consistent regulatory requirements associated with vegetative management standards and reporting requirements. The proposed rules establish more flexibility and clarify the minimum requirements.
An alternative to promulgation of these proposed rule revisions is to retain the current rule language, but this would not address the concerns that have been raised and would not alleviate concerns about the number of variance applications counties will receive from property owners wishing to expand above the maximum impervious surface limit or those who wish to expand their nonconforming structure within the setback. While the current rule attempted to reduce the administrative burden on counties and reduce the number of variances that property owners would need to expand nonconforming structures, the proposed rule would provide more flexibility for counties. The Department does not believe that there is an alternative method to achieve the rule intent, yet address the concerns that have been expressed.
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14. Long Range Implications of Implementing the Rule
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See Attachment- Part III.
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15. Compare With Approaches Being Used by Federal Government
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There are no specific existing or proposed federal regulation that are intended to address the activities regulated by the shoreland zoning program or the proposed rule modifications.
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16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
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See Attachment- Part IV.
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17. Contact Name
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18. Contact Phone Number
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Russ Rasmussen
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608-267-7651
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This document can be made available in alternate formats to individuals with disabilities upon request.
ATTACHMENT TO ADMINISTRATIVE RULES
FISCAL ESTIMATE AND
DRAFT ECONOMIC IMPACT ANALYSIS
Revision of Rules on
Ch.
NR 115, Wisconsin's Shoreland Protection Program
PART I
Policy Problem Addressed by the Rule
Section
281.31 (6), Stats. requires the department prepare and adopt general recommended standards and criteria for municipalities to protect navigable waters giving “particular attention to safe and healthful conditions for the enjoyment of aquatic recreation
…the capability of the water resources
…building setbacks from the water; preservation of shore growth and cover; shoreland layout for residential and commercial development; suggested regulations and suggestions for the effective administration and enforcement of such regulations." Section
59.692 (1m), Stats. requires counties to adopt zoning and subdivision regulations for the protection of shoreland areas to effect the purposes of section 281.31 and to promote public health, safety, and general welfare.
The State's shoreland management program under Chapter
NR 115 provides that shoreland zoning regulations shall: “further the maintenance of safe and healthful conditions: prevent and control water pollution: protect spawning grounds, fish and aquatic life: control building sites, placement of structures and land uses, and reserve shore cover and natural beauty." NR 115, Wis. Adm. Code, contains the statewide minimum standards for shoreland zoning in unincorporated areas. Although the rule was recently revised in 2009 and went into effect on February 1, 2010, some counties have expressed concerns about implementation and enforcement of the minimum standards regulating impervious surfaces and nonconforming structures. The proposed revisions would address concerns associated with administering and implementing the impervious surface standards and the nonconforming structure standards in the rule. Further, minor changes to the vegetative management and administrative reporting standards will clarify the requirements under the rule and ease reporting requirements.
Impervious Surface standards
Current standards under ch.
NR 115.05 (1) (e), Wis. Adm. Code, specify that the impervious surface standards be applied to land within 300 feet of the ordinary high water mark. Shoreland mitigation is required if a property expands the impervious surfaces on the property above 15% and limits the amount of impervious surfaces on a property to a maximum of 30%. The proposed rule revisions would ease the application of the impervious surface standards by: 1) limiting application of the impervious surface standards to only riparian lots or non-riparian lots that are entirely within 300 feet of the ordinary high water mark; 2) allowing properties to exceed the maximum impervious surface standards if the property owner can show that the runoff from the impervious surfaces is not draining towards a lake or river or is being treated by an engineered system; 3) allowing counties to develop higher impervious surface limits in certain areas of the county that are already highly developed.
The current rule provides that counties shall regulate any impervious surface that is located within 300 feet of ordinary high water mark. Some counties have indicated that measuring 300 feet from the ordinary high water mark is administratively burdensome and result in properties where the impervious surface standards are only applied to a portion of a property and will thus; require variances or complex calculations of the impervious surface standards. The proposed modifications to the rule would limit application of impervious surface standards to only riparian lots or non-riparian lots that are located entirely within 300 feet of the ordinary high water mark.
Further, the impervious surface regulations currently provide that shoreland property may contain impervious surfaces up to 15%, without a permit. Once a property exceeds 15% impervious surfaces, then the property owner must receive a permit from the county and conduct shoreland mitigation to offset the impacts to the shoreland zone and adjacent waterway. Expanding the impervious surfaces above 30% would require a variance. Some counties and property owners have suggested that impervious surfaces that do not drain toward the waterbody or those that receive some kind of stormwater treatment have less of an impact on water quality than impervious surfaces that drain directly to the waterbody. The proposed rule language would allow property owners to develop or expand the impervious surfaces on their property, above the maximum impervious surface limit, if the property owner can show that the runoff from the impervious surface is not draining directly to the lake or river or that the impervious surface is being treated by an engineered stormwater system.
As described above, the current rule requires that property owners obtain a variance from the county, if the property owner wishes to expand the impervious surfaces on their lot above 30%. In some developed areas, the current maximum impervious surface standards already exceed the maximum impervious surface limit. Any further addition of impervious surfaces on these lots, even minor additions, would require a variance, representing an increased workload for counties.
The proposed rule language allows counties to adopt an ordinance that allows a higher percentage of impervious surfaces for areas of already highly developed shorelines. A highly developed shoreline areas, in the proposed rule language, are areas that were identified as an urbanized area or urban cluster in the 2010 US Census, areas that have a commercial, industrial or business land use classification, or any additional areas that meet the specifications in the proposed rule. Property owners in areas of highly developed shorelines would be allowed to expand the impervious surfaces on their lots, up to 30% for residential and 40% for commercial, industrial or business land uses, without a shoreland zoning permit. To expand the impervious surfaces above this limit, the property owner will have to receive a permit and provide shoreland mitigation. Finally, to expand the impervious surfaces on the property above 40% for residential and 60% for commercial, industrial or business land uses, the property owner would either have to obtain a variance or show that the additional impervious surface does not drain directly to the lake or river, or that the additional impervious surface is treated by an engineered system.
Nonconforming Structure standards
The nonconforming structure standards in ch.
NR 115.05 (1) (g), Wis. Adm. Code, allow property owners, whose principal structures are greater than 35 feet from the waterbody, to expand vertically within the required setback and relocate or reconstruct the principal structure if the property owner completes a shoreland mitigation project. If the property owner chooses to relocate or reconstruct the principal structure, the county must also determine whether there is any other compliant building location on the property and must require that all other nonconforming accessory structures be removed or relocated beyond the required setback. Further, property owners may expand principal structures vertically or horizontally beyond the required setback. All property owners are allowed unlimited maintenance and repair of their nonconforming structures, and the scope of these repairs is defined by the county ordinance.
The proposed rule language on shoreland standards would allow a one-time horizontal expansion within the setback with shoreland mitigation. This revision is to address concerns that some nonconforming principal structures, which are located within the shoreland setback, are either structurally inadequate to allow for the addition of a second story or it is more desirable to build a minor first floor addition to accommodate the needs of the property owner. In addition, the proposed standards would eliminate the requirement that property owners must remove all other nonconforming accessory structures to relocate or reconstruct their nonconforming principal structure. Removal of nonconforming accessory structures is often a key component of shoreland mitigation and if it is a requirement, the counties are not allowed to give credit for the removal of these structures, despite the benefits to the shoreland zone. Further, the counties identified that property owners tend to view the removal of accessory structures more favorably if removal of these structures is optional rather than a requirement.
Finally, two other minor changes to the nonconforming structure standards will clarify the statutory language and requirements associated with nonconforming uses and wet boathouses. Under s.
59.69 (10) (am), Wis. Stats., if a nonconforming use ceases operation for more than 12 months, counties may require the use of the property to come into compliance with the county ordinances. The proposed changes to the rule would clarify the rule language to reflect this statutory language. The other minor change in the proposed rule seeks to eliminate the reference to the maintenance and repair of nonconforming wet boathouses, which are regulated by the department under s.
30.121, Wis. Stats. This reference in NR 115.05 (1) (g) 7. to wet boathouses and compliance with s.
30.121, Wis. Stats. has caused some confusion because counties do not regulate boathouses based upon s.
30.121, Wis Stats.
Vegetative Management Standards
The current rule provides standards for when counties may allow vegetation to be removed from the vegetative buffer zone, which is the area within 35 feet of the ordinary high water mark. One of the standards provides that counties may allow a property owner to remove vegetation within the buffer zone if they are managing for exotic, invasive, damaged or diseased vegetation or vegetation that poses an imminent safety hazard if the area is replanted. However, the standard is unclear whether or not a county must require a permit for the removal of this type of vegetation. Therefore, the proposed rule revision would clarify that the county is not required to issue a permit for such activities.
Reporting Standards
Under NR 115.05 (4), Wis. Adm. Code, counties are required to adopt an ordinance that contains a number of administrative and reporting requirements. One of those requirements is to submit any permit the county issues for a nonconforming structure, if requested by the department. The proposed rule would eliminate this requirement because of the administrative burden and cost to the counties and department.
PART II
Summary of Rule's Economic and Fiscal Impact on Businesses and Local Government
Wisconsin's shoreland protection standards, under NR 115, Wis. Adm. Code, do not distinguish or contain different standards for businesses within the shoreland zone. Therefore, businesses or business sectors are either not directly impacted by the proposed rule, or businesses located within the shoreland zone must meet the same requirements as any other property owner in the shoreland zone. If a business is located in the shoreland zone and the structure is nonconforming or the property exceeds the impervious surface limits, the business may keep what they have and repair or maintain those structures. Specific businesses and business sectors may be indirectly impacted by the proposed rule, depending upon the type of business and location of the business. Given that a primary purpose of the proposed revisions is to ease the administrative burden on counties, some businesses including builders, contractors, building centers, landscapers, nurseries and garden centers may experience some positive economic impacts. The proposed rule language will provide shoreland property owners with increased flexibility for use of their property.
Local county governments will be the primary party affected by the proposed changes in this rule. However, the level of that impact will vary county by county, and it will also vary over time. The initial fiscal impacts will result from ordinance adoption or revision and the costs will depend upon whether or not a county merely adopts the minimum standards, if the county adopts an ordinance that is more restrictive than the minimum standards, or if a county chooses to adopt an ordinance that allows higher impervious surface standards for highly developed shorelines. A 2006 survey asked counties to predict the average cost for initial adoption and implementation of NR 115, Wis. Adm. Code. 38% of the counties responded to the survey, identifying an average cost of $17,841, with a standard deviation of $33,059.
It is likely that the costs to adopt a shoreland ordinance including the proposed rule language, may be similar to the projected costs above, but may also be higher if a county chooses to adopt an ordinance that provides higher impervious surface standards for highly developed shorelines. Potential increase in costs for adoption of an ordinance, which provides higher impervious surface limits for highly developed shorelines, will be limited to approximately 15 counties with highly developed shorelines if those counties choose to adopt the higher impervious surface standards into a shoreland ordinance. To help counties defray the cost of ordinance amendments, the proposed rule language would allow counties at least one year to bring their ordinance into compliance. Counties may also be able apply for and obtain Lakes Planning grants and River Planning grants from the department to help further defray amendment costs. Currently there are 12 counties that have adopted the standards in the current NR 115, Wis. Adm. Code. It is unclear whether or to what extent these 12 counties would further revise their shoreland zoning ordinance as a result of the proposed rule language.
Once the county adopts an ordinance, initial implementation of the ordinance will have short-term costs associated with county staff time explaining the new ordinance language to landowners and businesses. However these costs will decrease over time as county staff, landowners and businesses become more familiar with the new requirements. Additionally, each county will realize cost savings from the proposed rule language due to the reduced number of variances needed if the impervious surface and nonconforming structure standards are adopted.
An example of the potential costs and savings compared to the current rule was provided by the Waukesha County Division of Planning and Zoning. Waukesha County issues approximately 281 permits per year for activities that involve either increasing or modifying the existing impervious surfaces within the shoreland zone. (Table 1) The county does not currently require permits for driveways or walkways, which under the current and proposed NR 115, Wis. Adm. Code, may require a permit. Therefore, utilizing 281 permits per year for comparative analysis is a conservative estimate of the potential workload and costs savings for the county. A random sample by Waukesha County of 41 shoreland properties revealed that none of the properties were below the existing impervious surface standard of 15%, approximately half of the properties were above 15% but below the current maximum impervious standard of 30% and the remaining half of the properties exceeded the maximum impervious surface standards. (Table 2) Extrapolating that data across the entire county suggests that any increases in impervious surfaces within the shoreland zone of Waukesha County will likely require permits and shoreland mitigation, or a variance.
The proposed rule would ease the administrative workload and costs for the county because most of the lakes and some of the rivers within Waukesha County would be considered highly developed shorelines. Thus the proposed changes to the impervious surface standards would reduce the number of administrative permits required with mitigation by 49%, because properties within highly developed shorelines that have less than 30% impervious surface on their lot would not be required to obtain a permit from the county or implement a shoreland mitigation plan. Further, the number of variances required for properties to exceed the maximum impervious surface standards would decrease at least 36% but could also decrease more if those properties could show that the impervious surfaces are draining away from the waterbody or are being treated by an engineered stormwater system.
Table 1. Waukesha County Shoreland
Permitting
Average number of annual permits 2006-2011
Activity
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Average # Permits
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New Homes
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48
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Remodel/Additions
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120
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Accessory Buildings
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46
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Decks/Patios
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67
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Total
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281
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*Note- Permits are not currently issued for driveways/walkways
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Table 1. Waukesha County Average Percentage of
Impervious Surface for Riparian Lots
% Impervious
Surface
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# of Example Sites
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% of Example Sites
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0-15%
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0 of 41
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0%
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>15-30%
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20 of 41
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49%
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>30-40%
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15 of 41
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36%
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>40-60%
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6 of 41
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15%
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PART III
Long Range Implications of Implementing the Rule
Water Quality, Natural Scenic Beauty and Fish & Wildlife Habitat
