Dec. 1, 2015

http://www.jsonline.com/news/statepolitics/gop-bills-would-limit-government-regulation-of-private-property-b99626017z1-359556381.html

Dry lake beds could see more development and drainage ditches less state oversight, under two GOP proposals that would broadly expand property rights and shrink environmental rules and the powers of local governments.

The draft measures by Sen. Frank Lasee (R-De Pere) and Rep. Adam Jarchow (R-Balsam Lake) could aid future lakefront developments like Milwaukee’s planned Couture high-rise, lessen the regulation of man-made waterways, and make it easier for businesses or homeowners to get notifications from local governments about official actions that could affect their lands and buildings.

The bills touch on a range of complex and often controversial issues like the rights of property owners, care for the environment and the powers of local elected officials. They have the support of influential groups, such as the business lobbies for Realtors and builders in the state, but passing the measures with just a few months left in the legislative session could prove challenging.

GOP leaders didn’t immediately commit to the legislation, with an aide to Assembly Speaker Robin Vos (R-Rochester) praising the bills in principle and spokeswomen for Senate Majority Leader Scott Fitzgerald (R-Juneau) and Gov. Scott Walker saying their bosses still needed to review the bills.

“In general the speaker is supportive of efforts to strike a balance between private property rights and protecting the environment. While it looks like this package does that, he would like to take a closer look and have a caucus discussion on the bills before moving forward on them,” Vos spokeswoman Kit Beyer said.

One of the two draft measures, which are being distributed around the Legislature for co-sponsors, would make wide-ranging changes in regulations in and around waterways. The other bill deals with local government restrictions on property owners.

The waterway bill is the latest measure by GOP legislators to scale back environmental rules in favor of more leeway for businesses and property owners. In this case, the changes would affect lake beds, wetlands, piers, boathouses and beaches — an often stormy nexus between water and private property.

“In Wisconsin, we have seen an increasing number of homeowners and job creators mired in court battles over permit and regulatory disputes because Wisconsin statutes are unclear and our regulatory environment remains uncertain,” the legislators said in a memo to fellow lawmakers. “Wisconsin can and should do better.”

Groups critical

Environment groups immediately criticized the legislation.

Helen Sarakinos, policy and advocacy director for the River Alliance of Wisconsin, described the changes and those before it as “death by thousands of paper cuts in clean water protection.”

“This has been a full-out attack on water protection,” she said.

The draft water measure also would reduce government oversight over the operation of engineered waterways, such as ditches, and require state authorities to be more selective in setting aside top-quality water bodies for special protections.

The proposal also would clarify that certain man-made ditches are not navigable water bodies designated for stricter state regulation. State law gives regulators more oversight over construction activity near navigable bodies of water.

The sponsors said they also want to give more clarity for the rights of property owners of former lake beds or similar land that has been dry for 40 years or more.

Couture development

While lake beds are protected by the state constitution as a public resource, dry land is not. But dry land can sometimes still be considered a lake bed for legal purposes, and that, in turn, has led to conflict, most notably for the $122 million Couture apartment high-rise planned for Milwaukee’s downtown lakefront.

Rick Barrett plans to develop the 44-story Couture on the site of the Downtown Transit Center, 909 E. Michigan St., which Milwaukee County has agreed to sell to his firm, Barrett Lo Visionary Development LLC.

 

The firm plans to complete that purchase this month and begin demolishing the underused transit center in early 2016. The Couture will feature 302 apartments, retail space and a transit plaza that will include a streetcar stop.

Preserve Our Parks opposed developing the Couture on most of the site, with the park advocacy group claiming it was once part of Lake Michigan when Wisconsin became a state.

However, Milwaukee County Circuit Judge Christopher Foley in June upheld a 2014 state law that established a Lake Michigan lake bed boundary east of the transit center. Preserve Our Parks didn’t appeal Foley’s ruling, which clears the way for the property’s sale.

Lake levels dispute

Also, the draft bill on waterways would codify a 2013 state Supreme Court decision that limited the Department of Natural Resource’s authority to set water levels on Lake Koshkonong.

The case stems from a longstanding dispute over water levels on the lake in Jefferson, Dane and Rock counties.

A dam on the lake was repaired in 2002 and the water level was set at a low level sought by the DNR. Leaders of the local lake district sought a higher water level. Lower courts upheld the decision of the DNR until it reached the Supreme Court.

In a 4-3 decision, the high court ruled that state’s public trust doctrine doesn’t apply to non-navigable waters above the ordinary high water mark of a water body. The doctrine holds that Wisconsin lakes, river and streams are to be protected for the benefit of the general public.

Writing for the minority, the late Justice Patrick Crooks said the majority opinion weakened the state’s duty to protect water resources.

The legislation is the latest by Republican lawmakers in the water arena.

GOP legislators also fashioned an iron-mining law in 2013 that rolled back some water protections in the operation of an iron mine. No such mine is currently in operation, but a project had been proposed and could resurface in Ashland and Iron counties where there are proven ore deposits.

Legislators this year also weakened the powers of some communities to enact stricter zoning laws near shore land. Also, this fall GOP legislators proposed new groundwater protection legislation that is supported by the agriculture community and opposed by environmentalists.

Amber Meyer Smith, a lobbyist for Clean Wisconsin, said the latest draft bills appeared to call for “pretty sweeping changes in how we protect our waterways in a way that is going to be detrimental for water quality.

“It will mean more filling on wetlands, less protection of special waterways, less protection of lake beds,” she said.

Tom Larson, a lobbyist for the Wisconsin Realtors Association, said that some parts of these latest draft bills would draw spirited debate. But he said that others represented either codifications of prior court decisions or needed clarifications of the law.

“There are a number of provisions that would fall into that category,” Larson said.

For example, he said the second local government bill seeks to codify a past court decision by stating that in cases where an ordinance is challenged and found to be unclear, the court ruling should favor the rights of the property owner.

The second bill also would lock into place local permit rules for a development proposal once a permit application has been filed at either the state or local level. In effect, that would prohibit local governments from rewriting their rules to affect the outcome of a given project, even if it was only being considered by state officials and not yet formally before the local officials.