Under international treaty and Federal law, migratory game bird seasons are closed unless opened annually via the U.S. Fish and Wildlife Service (USFWS) regulations process. As part of the Federal rule process, the USFWS proposes a duck harvest-management objective that balances hunting opportunities with the desire to achieve waterfowl population goals identified in the North American Waterfowl Management Plan (NAWMP). Under this harvest-management objective, the relative importance of hunting opportunity increases as duck populations approach the goals in the NAWMP. Thus, hunting opportunity would be maximized when the population is at or above goals.
Wisconsin Canada goose harvest is supported by two different Canada goose populations; the local giant Canada geese which are part of the Temperate Breeding Population (TBP) of the Mississippi Flyway provide about 40% of our fall harvest while the Mississippi Valley Population (MVP) that breeds in northern Ontario provide about 60% of the fall harvest. These two populations are managed under cooperative management plans developed by several states and provinces. The TBP population has steadily grown and management goals are to provide additional harvest opportunity and control population growth. In contrast, the MVP population has been on a slow decline so management objectives are to maintain a lower rate of harvest and have a stable or increasing population. These contrasting goals create a challenge in the development of hunting regulations. In order to improve our harvest management, the Mississippi Flyway Council tested the use of a standard season framework for 5 years while monitoring population size and harvest rates for the MVP and TBP. From 2007 - 2011, season lengths and bag limits for each MVP harvest state were unchanged. Each state retained the flexibility to schedule the timing of their Canada goose season. In addition, if the MVP spring population numbers dropped to a predetermined low level during the 5-year period, the stable season framework could be adjusted. At the winter 2012 flyway meeting, analysis of the impacts of these 5 years of stable regulation were reviewed and the results were mixed with regard to the management objectives. It was decided among the member states that a cautious and slow approach should be taken toward continued liberalization of Canada goose hunting seasons.
The proposed modifications included in this rule order are consistent with these parameters and guidelines which are annually established by the USFWS in
50 CFR 20.
Comparison with rules in adjacent states
Since migratory bird species are managed under international treaty, each region of the country is organized in a specific geographic flyway which represents an individual migratory population of migratory game birds. Wisconsin along with Minnesota, Michigan, Illinois and Iowa are members of the Mississippi Flyway. Each year the states included in the flyways meet to discuss regulations and guidelines offered to the flyways by the USFWS. The USFWS regulations and guidelines apply to all states within the Flyway and therefore the regulations in the adjoining states closely resemble the rules established in this rule order, and only differ slightly based on hunter desires, habitat, and population management goals. However, these variations fall within guidelines and sideboards established by the USFWS.
Summary of factual data and analytical methodologies
In the past, the department has annually promulgated emergency and permanent rules establishing the same year's migratory bird hunting regulations. The emergency rule is necessary because migratory game bird hunting is regulated by the United States Fish & Wildlife Service which offers a final season framework to Wisconsin on approximately August 1 each year. This timeframe does not allow for promulgation of a permanent rule prior to the hunting season. The department has promulgated permanent rules in the past so that information related to zones, tagging requirements for geese, and other regulations remain relatively current. However, season dates and bag limits established in the administrative code reflect the prior season frameworks and are not useful, current information. Through this rulemaking process, the department is evaluating ways to establish more general descriptions of the migratory bird hunting season in administrative code. For example, new rule language starts the northern duck season on the “Saturday nearest September 24" instead of a specific date. Emergency rulemaking will still be required of the department as the federal frameworks are established each year, but the result would be less rulemaking overall.
For the regular duck season, a data based process called Adaptive Harvest Management is used annually by the USFWS and the Flyways to determine which of 3 framework alternatives best matches the current year's data on populations and habitat. The option of a closed season is also possible if survey conditions indicated that this is necessary for the management of duck populations. The determination of which alternative is selected is based in part on the spring wetland conditions on the breeding grounds and the Mid-Continent Mallard population. These data come from the May Pond and Breeding Waterfowl Population Surveys conducted by the USFWS and Canadian Wildlife Service on traditional survey areas as well as surveys from select states, including Wisconsin.
In 2011 the USFWS gave our state the option of reconfiguring duck hunting zones and after an 11 month public input process Wisconsin implemented changes for a 5 year period. Waterfowl hunters have been supportive of the new zone configuration and this proposal contains the same zone configuration that was in effect for the 2011 season. The department's position has been that the configuration of duck zones is an issue of hunter opportunity and satisfaction which does not have significant impact on duck populations.
The parameters of Wisconsin's regular goose seasons are guided by the Mississippi Flyway management plans for the MVP and TBP Canada goose populations and approved by the Mississippi Flyway Council and the USFWS. The health of these populations is measured with spring breeding population surveys, survival data and harvest rates obtained from banding and production studies. The surveys and studies are conducted annually and are supported by the State of Wisconsin as part of the MFC. The primary elements of Wisconsin's waterfowl regulatory process include conducting spring waterfowl surveys, participation in MFC meetings, commenting on federal proposals, and soliciting input from the public. The state process begins with Flyway meetings in February and March each year where staff provide input to the development of federal framework alternatives and requests related to the early seasons. In spring and summer, breeding waterfowl surveys and banding are conducted in support of the regulatory process.
In early July, staff conduct a public meeting to solicit input from interest groups, including representatives of the Conservation Congress Migratory Committee. At this meeting, staff provide the attendees with breeding status information and ask for any items that they wish the department to pursue at the MFC meeting in mid July. Department staff then attend the MFC Technical and Council meetings. At these meetings, staff are provided status information and the proposed framework alternative from the USFWS. Department staff work with the other states in our Flyway to discuss and develop proposals and recommendations that are voted upon by the MFC. Proposals that passed at the MFC meeting are forwarded to the USFWS for consideration by the Service Regulations Committee (SRC) at their meeting. The USFWS announces its final waterfowl season framework recommendation at the end of July. Department staff then summarize waterfowl status and regulation information for Wisconsin citizens and present this information to the Migratory Committee of the Conservation Congress and at a public meeting (Post-Flyway Meeting) of interest groups and individuals on August 3. Staff gather public input and citizen suggestions at those meetings for the development of Wisconsin's waterfowl regulations, given the federal framework. Public hearings will be held from August 5-8 around the state to solicit additional input on the proposed annual waterfowl rule.
Wisconsin has a long tradition of restricting waterfowl hunting to the near shore and marsh areas of lakes and flowages. This provides safe open water resting areas for migrating waterfowl and helps keep ducks on water bodies for a longer period during the hunting season. However, “open water" hunting is allowed on some large lakes and the Great Lakes where it is believed that open water hunting does not eliminate safe resting areas. This type of hunting may involve specialized boats and other equipment and primarily targets diving species of ducks. All open water blinds must be removed at the close of hunting hours each day. Following a citizen request to increase hunting opportunities by expanding the number of lakes available for open water duck hunting, an ad hoc committee of citizens conducted a statewide review of 130 of the state's largest lakes, held local meetings, and made recommendations for additional open water hunting lakes. Adding the lakes in this proposal will increase areas available to waterfowl hunters and provide more opportunities for a unique type of waterfowl hunting.
This rule will expand opportunity for waterfowl hunters with disabilities. Open water waterfowl hunting is currently prohibited on all but a handful of lakes in WI. A hunter who is “concealed" in emergent vegetation under current rules is not considered to be in open water. The concern is that those with disabilities may physically not be able to get into a smaller boat, skiff, or blind and that it may be difficult or impossible to place an accessible boat or blind near vegetation capable of meeting the concealment requirements. This proposal will make it possible for disabled permit holders, and their companions, to hunt from a craft such as a pontoon boat, which may be impossible to conceal in emergent vegetation.
This proposal would simplify Canada goose hunting regulations in the Horicon Zone by providing the department the option of not requiring carcass tags and eliminating the permit application deadline when those measures are not necessary to restrict the harvest of Canada geese. In recent years the department has been able to provide more carcass tags to each applicant than most hunters were able to use. With improved harvest reporting methods, reduced Horicon Zone hunter numbers and efforts to reduce management costs, it is possible to eliminate the use of a carcass tag. Hunters will continue to be restricted to a specific number of Canada geese harvested in the Horicon Zone each season but this will be controlled through a punch card and telephone reporting system rather than issuance of a carcass tag.
In an effort to provide additional hunting opportunity and simplify regulations, while still protecting Ontario nesting Canada geese from overharvest, this proposal would shrink the size of the Horicon Zone. Areas removed from the Horicon Zone would become part of the Exterior Zone. During regular Canada goose seasons in the Horicon and Exterior Zones, Wisconsin harvests geese from 2 nesting populations; geese that nest locally and geese that nest in wilderness areas of northern Ontario. Harvest of the Ontario population is shared among several states and is managed to avoid overharvest. The Horicon Zone is an area where the Ontario nesting geese concentrate during migration and regulations are designed to avoid overharvest. Maintaining the Horicon Zone regulations is important because nearly 20% of the statewide regular season harvest occurs in the counties near Horicon Marsh.
However, Canada goose hunting regulations are regularly reviewed and can adapt to changes in hunting pressure and goose distribution. In recent years, greater than 80% of the Canada goose harvest within the Horicon Zone has occurred in Dodge and Fond du Lac counties. The band recoveries from Canada geese that nest in northern Ontario are highest on the eastern counties of the Horicon Zone within about 20 miles of the Horicon Marsh. Western and northern areas of the Horicon Zone experience very low Canada goose harvest. Based on these data and suggestions offered during meetings in 2012, the Department proposes shrinking the Horicon Canada goose hunting zone by establishing the western boundary at Highway 73 and the northern boundary at Highway 23.
Closing migratory bird hunting hours early on managed public hunting areas in some states has been shown to provide good hunting across an entire property rather than just near refuges, hold ducks in an area for a longer period of time, and provide better hunting opportunities throughout the season. An experimental early closure has been applied at the Mead Wildlife Area in Marathon and Wood counties and at Zeloski Marsh, Lake Mills Wildlife Area in Jefferson. The regulation has been in place only during the early part of the season when hunting pressure is heaviest. The regulation has sunset after a three year trial period. There continues to be support for the special regulations and reauthorization by rule is needed for them to remain in effect.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report
These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector or small businesses. Additionally, no significant costs are associated with compliance to these rules.
Effects on Small Businesses
These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small businesses, and no design or operational standards are contained in the rule. Because this rule does not add any regulatory requirements for small businesses, the proposed rules will not have an economic impact on a substantial number of small businesses under s.
227.24 (3m), Stats.
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at
SmallBusiness@dnr.state.wi.us or by calling (608) 266-1959.
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 rulemaking. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Contact Person
Scott Loomans, Wildlife Regulation Policy Specialist, 608-267-2452.
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DOA 2049 (R 07/2011)
ADMINISTRATIVE RULES
FISCAL ESTIMATE AND
ECONOMIC IMPACT ANALYSIS
|
Type of Estimate and Analysis
|
X Original
⍽ Updated ⍽ Corrected
|
Administrative Rule Chapter, Title and Number
|
Ch. NR 10, Game and Hunting. Board Order WM-06-13
|
Subject
|
Establishing the 2013 migratory game bird seasons, waterfowl hunting zones, and regulations.
|
Fund Sources Affected
|
Chapter 20 , Stats. Appropriations Affected
|
⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS X SEG ⍽ SEG-S
|
None
|
Fiscal Effect of Implementing the Rule
|
⍽ No Fiscal Effect
⍽ Indeterminate
|
⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
|
⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
X Decrease Costs
|
The Rule Will Impact the Following (Check All That Apply)
|
⍽ State's Economy
⍽ Local Government Units
|
⍽ Specific Businesses/Sectors
⍽ Public Utility Rate Payers
|
Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes X No
|
Policy Problem Addressed by the Rule
|
This proposal will establish a general framework of season dates, bag limits, and conditions for taking migratory game birds by hunting or falconry. Primary objectives of the rule will be to reduce the amount of migratory bird-related emergency rule making that is needed each year, to simplify regulations, codify provisions already in effect by emergency rule, and repeal a sunset provision.
|
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)
|
This rule will have no or minimal economic impact locally or statewide.
Economic Impact
Because the hunting season frameworks proposed in this rule will be comparable or identical to those in place during previous seasons, no economic impacts are anticipated. These rules are applicable to individual hunters and impose no compliance or reporting requirements for small business, nor are any design or operational standards contained in the rule.
Fiscal Impact
This rule will have a minor fiscal impact on the department in the first year. In future years, the department anticipates an annual saving of $6,000 to nearly $9,000 because of simplifications to Canada goose hunting regulations. These savings will result from no longer having to print and mail carcass tags to goose hunters. This is presented as a range of potential savings because actual costs have varied in the previous 3 years based on the price of print stock, printing, mailing, and the number of hunters. Instead of carcass tags, Horicon Zone goose hunters will need to report their harvest on a punch card and to the department by telephone, but this infrastructure is already in place for Exterior zone goose hunters and will result in minimal costs to edit the call in program. The department anticipates a cost savings of only $2,000 in the first year of implementation because savings will be offset by $4,750 in expenditures for our automated license system vendor to make program updates.
Other regulations modified by this proposal will not require significant changes to past practices or procedures and will have no fiscal impact but may result in more efficient use of department staff time if the need for annual rule making is reduced.
|
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
|
Changes to the Canada goose regulations and harvest reporting will result in simpler, more understandable rules and simpler hunting practices.
Through this rulemaking process, the department will establish more general descriptions of the migratory bird hunting season in Wis. Admin. Code. For example, new rule language might start the duck season on the “last Saturday in September" instead of a specific date. Emergency rulemaking will still be required of the department as the federal frameworks are established each year, but a result would be less rulemaking overall. It is difficult to estimate a precise amount of costs and other benefits as a result of reduced rule making needs. The amount of reductions will depend on the consistency of the federal framework for migratory bird hunting regulations. The federal framework does change a certain amount every year and the amount of change varies by year. The resulting benefit will primarily be improved use of department staff time.
An alternative is to not implement a rule and continue establishing migratory bird hunting regulations entirely by emergency rule each year. The disadvantage of this alternative is that it is absolutely certain that a complete emergency rules package would need to be promulgated each year. Another disadvantage is that the permanent rules contained in NR Ch. 10 will never reflect the regulations that are actually in place. This can be a disadvantage for law enforcement officers and anyone who seeks migratory bird hunting regulation information from that source.
|
Long Range Implications of Implementing the Rule
|
Implementing these rules may help reduce the amount of time invested in the rulemaking process by department staff. Implementing these rules will have little impact on the public except that they will continue to have good waterfowl hunting opportunities into the future. A subset of Canada goose hunters in the Horicon Zone will benefit from simplified goose hunting regulations and no need to worry about missing the permit application deadline and not being able to hunt in that zone.
|
Compare With Approaches Being Used by Federal Government
|
Annually the department establishes migratory game bird hunting seasons based on a federal framework that is presented to Wisconsin by the US Fish & Wildlife Service. This proposal takes advantage of nearly all of the opportunities offered under the federal framework. One difference is that Wisconsin allows one hen mallard in the daily bag limit even though the state could allow two. This is done at the request of waterfowl hunters who want to be conservative in regulating the harvest of breeding female mallards.
|
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
|
The department establishes migratory game bird hunting seasons based on a federal framework that is presented to Wisconsin by the US Fish & Wildlife Service. Because of the federal guidelines, Wisconsin's regulations are similar to those in neighboring states.
|
Name and Phone Number of Contact Person
|
Scott Loomans, Wildlife Regulation Policy Specialist, 608-267-2452.
|
Notice of Hearing
Natural Resources
Environmental Protection — General, Chs. 100—
(DNR # WT-06-12)
NOTICE IS HEREBY GIVEN that pursuant to ss.
1.11 and
227.11, Wis. Stats., the Department of Natural Resources will hold public hearings on revisions to Chapter
NR 115, Wis. Adm. Code, relating to the shoreland zoning standards under Wisconsin's Shoreland Protection Program. The proposed rule revisions would clarify and modify certain sections of the code to address concerns, expressed by some counties, current standards are unclear or burdensome to implement.
Hearing Information
Date: Wednesday, August 7, 2013
Time: 2:00 p.m. to 6:00 p.m.
Location: Town of Greenville
W6860 Parkview Drive
Greenville, WI 54942
Date: Thursday, August 8, 2013
Time: 2:00 p.m. to 6:00 p.m.
Location: City of Delafield
Council Chambers
500 Genesee Street
Delafield, WI 53018
Date: Wednesday, August 14, 2013
Time: 2:00 p.m. to 6:00 p.m.
Location: Best Western Tomah Hotel
1017 E McCoy Boulevard
Tomah, WI 54660-3264
Date: Thursday, August 15, 2013
Time: 2:00 p.m. to 6:00 p.m.
Location: Spooner High School
801 County A
Spooner, WI 54801
Date: Thursday, August 22, 2013
Time: 2:00 p.m. to 6:00 p.m.
Location: Rodeway Inn & Suites
1738 Comfort Drive,
Tomahawk, WI, 54487
The Department will provide a short presentation at the beginning of the hearings and then open the hearings to the public for submittal of comments on the proposed rule.
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Heidi Kennedy at (608) 261-6430 with specific information on your request at least 10 days before the date of the scheduled hearing.
Availability of Rules and Submitting Comments
The proposed rule supporting documents may be reviewed and comments electronically submitted at the following internet site:
http://adminrules.wisconsin.gov. A copy of the proposed rules and supporting documents may also be obtained from Heidi Kennedy, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707 or
DNRNR115COMMENTS@wisconsin.gov.
Written comments on the proposed rule may be submitted via U.S. mail or email to Heidi Kennedy at the addresses noted above. Written comments, whether submitted electronically or by U.S. mail, will have the same weight and effect as oral statements presented at the public hearings. Comments may be submitted until September 5, 2013.
Analysis Prepared by the Department of Natural Resources
Summary of proposed rule
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." Chapter
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 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 and 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.
The proposed rule language will also allow 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. 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 of 200 square feet, within the setback, with shoreland mitigation. In addition, the proposed standards would eliminate the requirement that property owners must remove all other nonconforming accessory structures to relocate or replace their nonconforming principal structure. Finally, two other minor changes will clarify the statutory language and requirements associated discontinuance of nonconforming uses and wet boathouses.
Vegetative Management Standards
The proposed rule revision would clarify that the county is not required to issue a permit for the removal of 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 such activities.
Reporting Standards
Under s.
NR 115.05 (4), Wis. Adm. Code, counties are required to adopt an ordinance that contains a number of administrative and reporting requirements. The proposed rule would eliminate a requirement that a county submit copies of any permit issued for a nonconforming structure, if requested by the department.
Statutory authority
Statutes interpreted
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
