Wisconsin Natural Resources magazine

Wisconsin Natural Resources magazine

Photo of waterfront property © DNR Bureau of Watershed Management

Natural cover can greatly incrase the mix of birds, mammals and fish you can attract that add value to your property.
© DNR Bureau of Watershed Management

April 2010

A delicate balance where land meets water

Guidelines on building and renovating waterfront property have been updated for the first time in 40 years.

Kathi Kramasz and Gregg Breese

Whether your home turf is still thawing out, you're getting ready to put out your pier or you are looking forward to spring melt waters that bring great paddling and fishing, you know we are at the front end of another sweet season along Wisconsin's waters. More than 40 years ago, the State Legislature recognized the need to adequately protect the shores that so many lake property owners enjoy. It was an era of relative prosperity when many people had the means to convert simple family cabins and summer cottages along the lakeshore for year-round use. Old lakeside resorts were going out of business and parceling off their summer rental properties to individuals. Shoreland property was still a reasonable buy, and lots of new homes, remodeled cottages, and cabin expansions were under construction at the water's edge.

The construction boom was noticeable on the water and in local economies. Wisconsin needed a way to balance the rights of shoreland property owners with the public rights for those who also enjoyed fishing, boating and swimming on local lakes. Legislators took steps to minimize consequences of shoreland construction by giving local zoning offices the means to apply more consistent guidelines on how properties could be developed. Local shoreland zoning ordinances were enacted to protect fish and wildlife habitat, water quality, and natural scenic beauty of shorelines along lakes and rivers.

Starting in 1965, state statutes were updated requiring counties to adopt ordinances on shoreland zoning that included limits on how close structures could be placed to the water's edge, minimum lot sizes on new subdivisions within the shoreland zone, and the first requirements to minimize clear-cutting of trees in the nearshore area. Additional zoning guidelines were added on a county-by-county basis to address the kinds of developments, improvements and modifications those communities were seeing at the waterfront.

When shoreland codes were originally written in the late sixties and early seventies, there was a dichotomy of development patterns between northern and southern Wisconsin. Many of the lake lots in the southern part of the state had already been developed with smaller seasonal cottages. The more undeveloped lakeshores in the north were seeing new construction of weekend cabins on wooded lots on lakes and rivers. Lawmakers did not foresee that these patterns of development would change significantly. During the last 40 years, many small seasonal family cottages have been greatly expanded into three-season or year-round homes. Now it is not uncommon to see shorelines dominated by palatial homes and condominiums in the pines.

"The shoreland rules never anticipated the amount or the scale of waterfront development that we have all experienced over the years," says Lori Grant of the River Alliance.

Development pressures have expanded in four directions.

  • Toward the water, property owners have wanted to upgrade boathouses, extend larger piers, expand private boat ramps, anchor big docks and swim platforms, install sea walls, augment sand beaches and replace natural shorelines with grassed lawns.
  • Along the shoreline, in many areas the prime lakeside lots are already developed and property owners have tried to engineer more marginal lands including wetlands, lowlands and bluffs to form a stable base for homes and additions.
  • Landward of the shoreline, rows of homes two and three parcels deep farther up hillsides and deeper into the woods create pressure to provide access to boat launches, piers and the water from those who do not actually own waterfront property.
  • From the cabin foundation up, owners want to expand the height and width of their original buildings on the lot.

Under the past regulations, if the existing dwelling was closer than 75 feet to the water's edge, a variance was needed to expand, tear down and rebuild, or to do a major renovation on these structures. Hundreds of variances were being granted to allow extensive modifications of existing structures. For zoning administrators and the boards that oversee them, the pressure to grant a lot of variances was a red flag that the zoning standards needed to be revised, particularly as neighboring communities and neighboring counties adopted very different requirements.

At the same time, study after study was documenting that zoning codes and changing development practices on Wisconsin waterfronts were failing to meet the goals the Legislature and Congress had agreed to in the 1960s. Habitat had been degraded, water quality was getting worse and the rules were not accomplishing the stated purpose of:

  • maintaining safe and healthy conditions
  • preventing and controlling water pollution
  • protecting spawning grounds for fish and aquatic life
  • controlling where building sites, structure placement and land uses would be allowed to preserve shore cover and sustain natural beauty

One compelling study of lake development showed that between the 1940s and the 1990s the amount of polluted runoff entering lakes had more than tripled due to increases in the amount of paved surfaces draining into lakes. The additional rain water and nearshore development caused a fivefold increase in sediment entering the lakes. Along with sediment during and after construction, the phosphorus load entering the lakes during this period was 10 times greater in 1990 than in 1940.

The picture was no better nationwide. An Environmental Protection Agency assessment of lake conditions across the country that was released last December shows that only 56 percent of the nation's lakes support healthy biological communities, another 21 percent of lakes are in fair condition, and 22 percent are in poor biological condition. Lakeshore habitat is rated as "poor" in 36 percent of the nation's lakes.

Lots of ideas and lots of review

Knowing it was likely to be controversial, in 2001 the DNR committed to a rule revision process to bring the shoreland zoning code into the 21st century. The revisions took seven years. The advisory committee identified areas that needed to be considered. Listening sessions around the state gave waterfront property owners, lake users, communities, developers and builders time to review the recommendations. There was widespread support for the advisory committee's priorities. Next, a draft rule was written and a series of public hearings held throughout the state. More than 20,000 oral and written comments were submitted and more revisions were incorporated in a second rule draft. Another series of public hearings brought thousands more public comments and additional revisions following legislative review. The recently adopted shoreland rules reflect public concerns at every step and fill in some gaps in the older 1960s version.

"This proposal achieves a solid balance between the public interest in protecting Wisconsin's beautiful lakes, rivers and streams and the rights of shoreland owners to enjoy their property," DNR Secretary Matt Frank said. "Modernizing these rules ensures that as Wisconsin grows and develops, we are protecting outmost precious natural resources so fundamental to our economy, recreation and our quality of life."

Frank's comments were echoed by others who had participated in shoreland rule revisions, including builders and realtors.

Mike Mulleady, board chairman of the Wisconsin Realtors Association, called the revisions to shoreland zoning laws "both reasonable and necessary."

"As realtors who work every day with buyers and sellers of waterfront property, we know firsthand the important role shoreland zoning regulations play in protecting water quality, the scenic beauty of our waterways and the ability of waterfront property owners to use and enjoy their property," Mulleady said.

Key revisions change the way that existing homes previously constructed within 75 feet of the shore (the setback distance) are treated. Once the new rules are adopted, a property owner with an existing cottage that is closer to the waterway will be allowed to do uner limited maintenance and repairs on that structure, in some cases add a second story, and in other cases completely tear down and rebuild the house, as long as it remains within the same foundation footprint. If the existing dwelling straddles the setback line (part is closer than 75 feet and part is not) the homeowner will even be allowed to expand the structure, as long as the expansion is back, away from the shoreline.

To help offset some of the consequences of allowing these "non-conforming" structures to remain so close to the shore, the new code follows a successful pattern some counties already require to compensate for some of the potential runoff, sedimentation or habitat loss. These "mitigation standards" will be set on a county-by-county basis depending on local conditions like the land slope, local soil types and shoreland plant communities. In addition, counties can use a computer program developed for DNR to estimate such runoff.

Accounting for sediment and pavement

Sediment flowing into a lake system doesn't move downstream, it settles to the bottom and covers fish spawning, rearing and feeding areas, and other aquatic plant life. Healthy plants are critical parts of any lake system because they produce oxygen, stabilize the lake bottom and protect the sediment from re-suspension. Some fish and wildlife eat plants and others feed on the invertebrates that eat the plants. Sediment also carries nutrients that increase nitrogen and phosphorus in a waterbody and can cause dangerous algal blooms in the summer – just at the time of year when these lakes and shores have the highest use. And sediment running into a clean body of water is visually disturbing – muddying up the water.

Stormwater runoff © DNR Bureau of Watershed Management
Stormwater runoff rushes off roads and other impervious surfaces in subdivisions built right along the water. Look at the plume of soil and sediment that washed into the water following a storm.
© DNR Bureau of Watershed Management

The amount of stormwater running into waters can be quantified. And runoff rates are much higher where rain and snow melt quickly reach the water by flowing over paved areas, scouring silt, soil and nutrients rather than filtering and slowly seeping through grasses, brush and wetlands. That's why the new code sets numerical limits on the amount of impervious surface adjoining the shoreline. In the past, paved driveways, sidewalks and patios, and piers weren't considered in the code when built at grade. On large lots with small cottages, runoff might not cause a problem. But, as cottages became year-round residences and multiple family condos, the average size of the lakeside homes and businesses increased greatly. Add a driveway, parking area for a few cars, and a patio, and you quickly find that some lakeshore lots have 50 percent or more paved area. A lot of fast, hard rainfall is channeled right into the water and is not percolating into the ground where it can be cleaned before it reaches a lake or river.

Research shows that runoff problems are less severe where less than 10 percent of the shoreland is covered with a layer of asphalt, concrete, brick or another impervious surface. However, given current housing designs and existing development, meeting that 10 percent level is not achievable. So, for new development, the rule sets a limit that owners can include up to 15 percent impervious surfaces on building sites or up to 30 percent if the owner lessens the impact by installing rain gardens, infiltration basins, grassed parking areas, or other measures like restoring shoreland plantings.

When adding to, remodeling, tearing down or reconstructing an existing cottage, the shoreland rules allow property owners to "keep what they have," says Russ Rasmussen, director of DNR's Bureau of Watershed Management. On current structures within the setback area, property owners can perform unlimited maintenance and repair. Likewise impervious areas within the setback area can be replaced with like surfaces. For instance, an existing patio can be replaced with a new patio, but a patio area could not be converted to a building with walls.

If the developed area is farther back from the shore than 75 feet, then the structure can be modified or moved to a different location without having to go through the variance process.

A clearer understanding of clear-cutting

Commenters also let DNR know that the old code language on clear-cutting trees did not provide adequate guidelines.

The land immediately adjoining the shore provides the most important cover and protection for wildlife, just as the very shallow waters at the shore are the most used spawning areas for fish. This zone also defines the scenic beauty that attracts us to the shore. Development and manmade "improvements" often destroy this natural value and studies show that developed lakeshores have at least 30 percent fewer trees than undeveloped sites. Less than half the varieties of shrubs and understory plants are found at developed sites than at undeveloped sites. Replacing this natural mix of trees, shrubs, grasses and sedges with manicured lawns, boathouses and docks provides far less habitat for wildlife, far less filtering capacity to retard pollutants, far less beneficial spawning ground for fish in the shallow waters and attracts far less birdlife. Bird counts for species like warblers, thrushes, vireos and ovenbirds along undeveloped shorelines are more than twice as high as counts of more common birds. In developed waterfront areas, not only do the numbers of these uncommon birds significantly drop, but the counts of more common species like grackles, catbirds, chickadees, blue jays and goldfinches more than double.

Clear-cutting standards set in the 1960s code intended to limit vegetation removal right at the shoreline where plants provide this critical buffer between water and land. The buffer stems erosion, filters pollution, holds back nutrients, provides food and offers cover for wildlife, and serves as screening between shoreline buildings and boaters. The code's vague language was too hard to interpret and, consequently, the goals of maintaining shoreline plant cover were not met. Language in the revised code discusses maintaining vegetation and limits plant removal within 35 feet of the shoreline with a few exceptions. It allows for a clear path from homes to docks and it permits up to a 30-footwide swath of cleared space to provide a clear view of the water from lakeside homes and businesses.

The shoreland rules also allow routine maintenance of established properties, Rasmussen explains. If a parcel has a grassy lawn, it can stay as lawn. If there are shrubs along the shoreline, they can be maintained. If the shoreline is currently wooded, it canít be changed except to allow that 30-foot-wide viewing and access corridor. The code provides a permit process to encourage landscaping changes that remove invasive species, provide better habitat, or improve plant health. Many counties will also provide incentives to convert mowed grass areas and restore a mix of native low grasses, shrubs and trees.

There are a few other changes. Owners wonít need a variance to construct a building on a smaller lot, as long as setback and impervious surface standards are met. There are exemptions from setback limits for utility poles and structures like boathouses that need to be located closer to the shoreline to be useful.

Incentives to shore up the shoreline

For those willing to restore more natural shorelines, local agencies will be eligible to provide grants to property owners for demonstration projects, shoreland buffers and work to contain stormwater. There's plenty of work to be done and continuing interest in shoreland development that looks good and preserves natural habitat.

A study of 235 Wisconsin lakes documented that the number of dwellings along lakeshores had more than doubled from the 1960s to 1995. The shoreland is still prized and the rules aim to preserve both its economic and natural values. The revised standards should help waterfront property owners maintain that value while preserving the public's rights to clean water, natural shorelines, and swimmable and fishable lakes and rivers.

Kathi Kramasz and Gregg Breese are specialists with DNR's Water Regulation and Zoning program.