Neenah's private pier issue is clear as mud

Appleton Post Crescent

...Since the 1920s, residents on the west side of Lakeshore Avenue have installed private piers, docks and boat lifts along the picturesque shoreline. City officials periodically have wrestled with the private use of public land, but they never have taken a stand against the practice.

...Godlewski said it is unclear whether the pier owners have legal rights to maintain their piers because of historical use.

Attorney Phillip Munroe, who represents several pier owners, said his clients might have prescriptive easement rights or ownership rights under adverse possession.

Adverse possession, Munroe said, means that if a party acts as the owner of someone else's land, and the other side doesn't take steps to stop it, that party can claim ownership of the land.

You Heard It Here First

This season was the first year I paid a service to trailer, store, and return our pontoon to our pier. In past springs, I parked the boat in the driveway for weekend cleaning, maintenance, and renewing my registration as needed.

This year, the boat was already in the water and she was supposedly, good to go.

My bad.

Sunday afternoon, May 28th, I politely waved at the DNR as they passed us heading the opposite direction. Our little guys were sleeping as we headed home from Maple Beach and the grandparents had enough sun for the day.

When the DNR pulled-up along side me, I knew, right then, I never checked the registration. My sticker had expired March 31st -- wrong color sticker.

The DNR wardens were very nice, very understanding of my forgetfulness, but nonetheless, handed me my $186 blue ticket.

It was an expensive lesson, but I share it with you because when I returned home, I renewed my registration on the DNR website for $28.00.

If you have not looked at your boat registration recently, or have recently moved, consider yourself forewarned.

I want to grade, fill, remove or disturb soil in a low area or wetland. Do I need to obtain a permit and/or pay a fee?

Answer from DNR Website

Man-Made Islands Create Habitat

From MN Public Radio...
paraphrased

...Luring wildlife back into the area is the goal of the island-building project. The islands are the place birds and other wildlife go for shelter, nesting, and food. There were thousands and thousands of canvasbacks that would flock up out there and eat that wild celery. In fact, at night you could hear 'em flush off of there - you could hear the roar, there was that many canvasbacks there.

...At the same time, the river bottom has become flat and shallow. To build the islands, the corps dredged 23-foot channels and created piles with the resulting spoils, hopefully solving both dilemmas. Often such large scale environmental manipulation attracts controversy. But many conservation groups praise the islands for boosting habitat for a relatively low cost. For the more than $2 million spent, officials can count another 33 acres of island land.

...When we first moved to town - we've lived in the area for 32 years - there was lots of ice fishing going on. But as the islands disappeared, so did the ice fishing. You'll see ducks out here. There'll be turtle nests here. I just think it's a beautiful thing for our area.

Floating safety on Wisconsin's lakes and rivers

Janesville Gazette Editorial

Wisconsin's boating season started Saturday with the game fishing opener. When the annual parade of pleasure boats and personal watercraft heads for our lakes and rivers Memorial Day weekend, the boating season will be in full swing.

Each year, our waters get more congested. Registered boats in Wisconsin number about 636,000, up about 100,000 from a decade earlier.

Last year, 22 people died in Wisconsin boating accidents. That followed a record 24 deaths a year earlier.

So it makes sense to ensure that operators know the law and basic safety. The Legislature did so by passing a bill requiring that anyone born after Jan. 1, 1989, take a boating safety course to operate a motorboat or personal watercraft. The state already required those between ages 12 and 16 to take such a course before operating boats. The new legislation doesn't change that.

Gov. Jim Doyle signed the bill last month. The new law likely will take effect early this summer.

Why include Jet Skis and other personal watercraft in the measure? Two local accidents offer vivid reasons. Lack of control of such machines was blamed in the 2003 death of Brodhead tavern owner Christopher L. Goecks on Lake Koshkonong and the 2001 death of 9-year-old Amanda Backes on Milton's Clear Lake.

"We require education to drive a car to ensure everyone knows the rules of the road," Doyle said. "This bill will do the same for our lakes and rivers."

Erik Samuelsen, co-owner of Rock River Marina in Edgerton, saw the value of such courses when he took one with his 12-year-old son last year. He learned a "tremendous amount," Samuelsen told Gazette reporter Gina Duwe last week.

"I would just highly recommend a boater's safety course, whether they be a seasoned veteran or especially the newcomers," Samuelsen said. "You'll certainly bring something away from it and be safer in the process."

Courses stress the value of always wearing a personal flotation device. That is especially important this time of year, when water remains cold and hypothermia can quickly overcome anyone who takes a spill.

Critics feared the bill could hamper tourism, especially rental businesses. So the Legislature amended the bill and will have the Department of Natural Resources write rules covering state residents and nonresidents who rent boats.

While pinching tourism can be a concern, it shouldn't trump safety. After all, if basic safety knowledge is good enough for boat owners, it should be good enough for all those joining us on our waters.

DNR and Thiebeau Dam/Dyke Correspondence

A follow-up from this post:

Tom;
This is an excellent question to pose to the DNR. I think the easy answer is that you are not trespassing if your feet are wet -- that assumes though, that you can cross the dyke without setting foot on dry land.

The controversial part is if the dyke is truly owned by the hunt club, or if the dyke sits on the lakebed -- if on the lakebed, I believe the dyke would then belong to the public and you could portage across the structure. If the dyke is owned by the hunt club, they have an illegal structure not permitted by the DNR.

The RKLD believes this is a significant issue that demonstrates the DNR's preconceived conclusions they brought with them to the Contested Case Hearing.

Dear DNR;
I was wondering if I can legally cross (portage with a small boat or canoe) the illegal dam and hunt in the Thibeau marsh in the fall or fish in the spring and summer?
Tom

DNR RESPONSE
Mr. Lipke -

I only have part of the answer to your question.

You can certainly go into that area when or if the water in Lake Koshkonong is high enough to overtop the structure.

It's a harder question when the water in Lake Koshkonong is below the top of the structure. A big issue is whether the 'waterway' that is being impounded was navigable prior to being impounded. We don't know if the 'waterway' was navigable and our initial research was conflicting. "Navigable" means suitable for navigation...In WI, a navigable body of water is capable of floating the lightest of boat or skiff used for recreation or any other purpose on a regularly recurring basis.

Like I said in the earlier email to Mr. Hausler, a number of years ago, department staff took concerns over this structure to our Secretary and our legal counsel. There was conflicting available information, as well as some concerns over our legal jurisdiction. Additionally, based on the our assessment then, the dike/culverts didn't cause significant impacts on other properties or parties. At that time, our staff spoke with our conservation wardens in the area to determine how much public contact we had with people seeking access to this area or complaining about the structures and water levels and the response was that there was very little public concerns expressed. We made an enforcement decision at that time that it wasn't something we were going to pursue.

In your previous email, you stated that the structure is flooding your land. You can take legal action against the structure owner and the court can decide if the structure must be changed or removed.

Sorry I don't have more information.

DNR

Note from a Camper

I feel that I am a part time Wisconsinite. I have a place at Lakeland Campground and have been there for 13 years. I have owned a pontoon boat now for 12 years. My folks live in Edgerton. I have kept my boat at Whispering Pines Boat Slips since it was new. I would always find out about the lake from Jack Combs when I would see him on weekends but since his passing I haven't heard to much and also was not aware of the meetings this past March. I just now got on your list to be informed of events.

The Lake is such a large and nice lake My family and I have had a lot of good times out there over the years and would like that to continue. The lake seems to be getting lower earlier each year and I find that I am not comfortable and safe out there anymore because of the shallow level. Boating is not fun when you have to walk your boat out to a depth where it won't hit bottom.

Thank you for all you and the association is doing.

Thomas Strossner

DNR Has Little Juridiction on Dams in Cities

Janesville Gazette

Council OKs dam repair

...The dam, located off Center Avenue near Monterey Park, was constructed in 1855 to power a cotton mill, Mike Hayek, city engineer, told council members Monday.

The cotton mill is gone, but the gate helps the city control water levels upstream.

Pier Rules

Janesville Gazette

Governor issues order on pier sizes

...Under the order, the DNR cannot order the removal or modification of any pier in place before Feb. 6, 2004, if:

-The pier is smaller than 8 feet in width.

-The pier is smaller than 200 square feet at the waterward end. If the waterward end is bigger than 300 feet, it would still escape new regulation as long as it is no more than 10 feet wide.

-The structure doesn't interfere with other waterfront property owners' rights.

Under the order, a pier put in place after Feb. 6, 2004, could not be ordered removed or modified if it is less than 6 feet wide and its waterward end is less than 8 feet wide. The owner also must observe limits on how many boat slips can be placed off of a waterfront property.

Boater Safety Now Required

Janesville Gazette

Boaters cruise down the Rock River near Newville on Sunday. Gov. Jim Doyle signed a bill into law last week that requires future boaters to pass a state-sponsored safety course.
Al Hoch/Gazette Staff


Veteran boater Erik Samuelsen, 39, would have seemed like a fish out of water if he'd joined his 12-year-old son last year at a boater's safety course.

But in taking it with friends his own age, Samuelsen learned a "tremendous amount."

"I would just highly recommend a boater's safety course, whether they be a seasoned veteran or especially the newcomers," said Samuelsen, co-owner of the Rock River Marina in Edgerton.

"You'll certainly bring something away from it and be safer in the process."

Samuelsen said it's an excellent idea that future boaters in Wisconsin must pass a state-sponsored safety course or face fines under a bill signed into law by Gov. Jim Doyle last week.

Janesville Gazette: Thumbs Down

To watered-down pier rules. Go measure your living room. If you live in a nice home, perhaps it's 20 feet long and nearly 15 feet wide. Now imagine a boat pier that size, a shade less than 300 square feet.

Think it's excessive? We do. But Assembly Speaker John Gard, R-Peshtigo, doesn't.

In March, lawmakers, environmental and business groups and the governor's office reached a compromise for regulating boat docks. The deal would have exempted all piers less than 200 square feet and up to 300 square feet for structures no wider than 10 feet. But Gard's proposal erased the width specification to allow any pier less than 300 square feet. His plan, accepted by the Senate, also erases funding set aside for the Department of Natural Resources to enforce the rules. Spokesman Dan Leistikow says Gov. Jim Doyle will veto the legislation. That's good.

The public trust doctrine guarantees that our waterways belong to all people, not just those wealthy enough to own property on lakes and rivers. Reasonable piers are OK. Party platforms that infringe on your right to use the water are not.

I interpret that bolded comment as a ringing endorsement for the RKLD and our dispute with the DNR over water levels. Indeed, major portions of the Public Trust Doctrine were simply ignored by DNR during our Contested Case Hearing.

The waterways do indeed belong to all people, not just those few, very few, wealthy wetland owners & duck hunting club members.

Selective Enforcement

Brian
Isn’t it amazing that the DNR allowed someone to install a dyke/bulkhead damming system without proper permits yet at the same time used/threatened to use legal force against other property owners who tried to install bank riprap to protect their properties?
Jim

More on Thiebeau: This burns my bacon

This from a RKLD constituent:

Hi Sue (DNR), I was interested in the steps that are being taken to remove the illegal dyke/dam on the Buck Sweeney/Thiebeau Hunt Club property at Lake Koshkonong. Thank You, Bob

This Response from DNR:

A number of years ago, department staff took concerns over the structure that you describe below to our Secretary and our legal counsel. There was conflicting available information, as well as some concerns over our legal jurisdiction.

Additionally, based on the our assessment then, the dike/culverts didn't cause significant impacts on other properties or parties. Staff spoke with our conservation wardens in the area to determine how much public contact we had with people seeking access to this area or complaining about the structures and water levels and the response was that there was very little public concerns expressed. We made an enforcement decision at that time that it wasn't something we were going to pursue.

UPDATE:
So, DNR supervisors spoke with conservation wardens at the time to determine if the public was seeking access to a public area behind an unpermitted structure -- a structure that until the Contested Case Hearing exposed its existence, very few people knew about?

My response is to encourage every taxpayer on Lake Koshkonong and the Rock River to paddle their canoes and row their boats into Thiebeau and enjoy the beauty behind the illegal structure.

The WI Constitution protects our rights to enjoy and recreate navigable water.

2006 Annual Meeting Set

Saturday, July 22nd
9am - noon
Fort Atkinson High School Auditorium

Newsletters and official notices will be mailed in June.

When Will We Get A Decision?

Brian
I was told by DNR that a decision will not be released from the hearing judge until November 1st.
Jeff

Jeff;
At the post-hearing hearing attended by all parties, Judge Coleman indicated that he would issue his ruling before the end of summer. The last deadline for summary briefs is August 9th.

So, as summer begins with the solstice on June 21, and summer ends with the equinox on September 21, one would assume the judge would issue his decision in September sometime.

Labor Day weekend marks the last holiday of summer -- I am guessing Judge Coleman will issue his ruling leading up to the long holiday weekend, so that he has this hearing off his desk and off his mind and he can then turn his attention to much deserved R & R.

More on Wetlands/Hydrology

Our tech experts suggest that there is indeed a localized runoff component to the inundation at Carcajou due to water being held back by natural levee or riprap on the lake edge -- that when water is retarded from drainage out of the marsh, it could have a negative impact on the marsh if it happens often, or if water is retained for a significant period of time.

Response on Wetlands/Hydrology

Judy;

Good point.

During testimony, your question was sorta addressed in the discussion of the impact on those wild orchids and the relation of the illegal dam/dyke at Thiebeau.

The DNR, by pulling their testimony re: the endangered species/orchids threat back from Judge Coleman, conceded that RKLD has demonstrated that the orchid area is really subject to local upland inflow, impeded by the illegal dyke/dam located on the downslope. The orchids were not affected by the water levels on Lake Koshkonong.

The impacts of locally generated runoff from upland areas or streams likely exists at many other locations around the lake too.

Comment on Wetlands/Hydrology

Brian;
Was there any mention during the testimony of wetland degradation being caused by the creeks waters entering into them?

Koshkonong/Busseyville Creek originates near Sun Prairie, which they use along with Cambridge for their treated waste water discharge that amounts to literally millions of extra gallons of water daily in what was once a small stream.

Given that, add a sudden rainfall of 2 inches and that stream now becomes a flooded raging river, once those waters reach the Carcajou wetlands & forests those lands are entirely inundated with floodwaters even though the lake level is normal.

This same scenario takes place in all of the wetlands surrounding the lake, they flood long before the lake elevations are anywhere near what the RKLD's proposed orders are.

The once small open water areas the Wetland Owners describe become degraded and enlarged from floodwaters entering them from the backside, which has nothing to do with the proposed or current operating orders.

Judy

Pelican Sightings

And I also noticed that the pelicans were swimming close to shore this past weekend for all to enjoy because there was enough water that they could get their food.

Bet the wetland owners forgot to mention that.

Thanks again for all your efforts.

Steve

DNR Summer Water Level Orders in Effect

Summer vs. Winter orders

At midnight last night, our water level target increased from the winter order of 775.39 to the summer order of 776.20 -- an overnight increase of 9.72 inches.

Today's water level is 776.80 -- or 7.2 inches above our summer target.

Keep in mind that today's water level, where the water is splashing against your shore, your pier, your riprap, is approx where the RKLD has requested the year-round water level (777.0), to be in our CCH.

Because of the DNR, the gates will remain wide open at Indianford.

Post Hearing - What's Next

June 2nd -- DNR Summary Briefs Due to Judge Coleman

June 16th -- Parties Supporting DNR (LKWA) Summary Briefs Due

July 21st -- Parties and Petitioners (RKLD)Opposing DNR Summary Briefs Due

August 9th -- DNR and Parties who filed a summary brief in support of DNR may file a brief reply to RKLD and Parties.

Royce Dallman Landing

Rehab work at Dallman Landing began last week Monday, April 24th and will continue thru most of May.

Rock County has closed the park and boat ramp during the week (M-F), reopening on weekends. Work is scheduled to be completed by June 1.

New restrooms, a picnic shelter, dual paved boat ramps and new lighting will be added.

The boat ramp may reopen during weekdays beginning the week of May 14th.

UPDATE:
Koshkonong water levels and the accessibility of the public boat ramp at Dallman was a hot topic at the recently concluded Contested Case Hearing against the DNR's artificial low water levels.

Many public users testified that the ramp/water levels do not provide enough water depth to float boats off their trailers.

If you use the Dallman ramp will any amount of regularity, please email me with your comments after the new ramps are installed and the water levels return to 776.2.

From any angle, fishing boosts state businesses

Green Bay Press Gazette

...Wisconsin ranks second in the nation behind Florida in the number of days nonresidents spend fishing in the state, said Mike Staggs, state Department of Natural Resources director of the bureau of fisheries management.

...Larsen said fishing is a major component of the tourism economy in Wisconsin, and he accepts the DNR's estimate that the fishing industry generates $2.3 billion statewide. The figure comes from a report that also claims that fishing generates $1.2 billion in retail sales and 26,000 jobs statewide.

...Troy Peterson, captain of Mr. Bluegill Guide Service in Oshkosh, said he is concerned about low water from lack of rain and snow, and from the low water table in central Wisconsin.

"It's just destroying fishing for a lot of people," he said.

DNR officials say they have concentrated efforts on stocking fish, improving the fishery and preventing habitat degradation so that fishing remains strong.

Doyle will veto bill to regulate piers

Maybe the DNR will not interpret your pier illegal, or maybe they will --

The Janesville Gazette

...A veto would throw the state's regulations of piers into uncertainty as water enthusiasts start to use them this spring to boat and fish, a favorite pastime in a state with 15,000 lakes.

...Todd Ambs, a DNR water administrator, called those changes "fatal flaws" because they allow structures wide enough to block sunlight from getting to water, killing plants and shrinking fish populations, while giving the agency no money for enforcement. He said the DNR would urge a veto.

...Ambs said a veto would leave regulations for piers unclear this summer. He said those with existing piers less than six feet wide have nothing to worry about. Those with larger structures probably would not be regulated this summer without clearer rules in place, he said.

For people thinking of building piers, Ambs said: "Put something out there that's no more than six feet wide and does not have a loading platform on the end and you'll be fine."