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					A Review of Private Dock Management Regimes:
                      Regulations and Practices

                                           FINAL REPORT



                                                Prepared for:
               Division of Coastal and Ocean Management
                           Department of Natural Resources




                                                      2010
A Review of Private Dock Management Regimes:
                      Regulations and Practices

                                           FINAL REPORT



                                                Prepared for:
               Division of Coastal and Ocean Management
                           Department of Natural Resources




                                                PREPARED BY:




                                       Juneau  Anchorage




                                                      2010
                                                                                               Table of Contents

Summary of Findings ................................................................................................................ 1
Introduction .............................................................................................................................. 7
  Scope of Work.......................................................................................................................... 7
  Methodology ........................................................................................................................... 7
Comparison of Dock Restrictions and Requirements ............................................................. 9
  Size .......................................................................................................................................... 9
    Surface Area ....................................................................................................................................... 9
    Width ............................................................................................................................................... 10
    Length.............................................................................................................................................. 10
  Design.................................................................................................................................... 13
    Materials .......................................................................................................................................... 13
    Other Design Restrictions ................................................................................................................. 13
 Location, Access, and Navigation ........................................................................................... 15
 Allowed Uses .......................................................................................................................... 17
 Fees ........................................................................................................................................ 18
Comparison of Dock Management Regimes ........................................................................ 19
 Basis of Management Regimes ............................................................................................... 19
    British Columbia ............................................................................................................................... 19
    Michigan .......................................................................................................................................... 19
    Minnesota ........................................................................................................................................ 20
    Oregon ............................................................................................................................................ 20
    Washington ...................................................................................................................................... 21
    Wisconsin ......................................................................................................................................... 22
  Permitting Processes .............................................................................................................. 22
    British Columbia ............................................................................................................................... 22
    Michigan .......................................................................................................................................... 23
    Minnesota ........................................................................................................................................ 23
    Oregon ............................................................................................................................................ 23
    Washington ...................................................................................................................................... 24
    Wisconsin ......................................................................................................................................... 25
  Innovative and Best Management Practices ........................................................................... 25
    Innovative Practices .......................................................................................................................... 25
    Best Management Practices .............................................................................................................. 26
  Management Strengths and Successes ................................................................................... 26
    British Columbia ............................................................................................................................... 27
    Michigan .......................................................................................................................................... 27
    Minnesota ........................................................................................................................................ 27
    Oregon ............................................................................................................................................ 27
    Washington ...................................................................................................................................... 28
    Wisconsin ......................................................................................................................................... 28
  Management Problems and Failures....................................................................................... 28
    British Columbia ............................................................................................................................... 28
    Michigan .......................................................................................................................................... 29
    Minnesota ........................................................................................................................................ 29
    Oregon ............................................................................................................................................ 29
    Washington ...................................................................................................................................... 30
    Wisconsin ......................................................................................................................................... 30
  Enforcement........................................................................................................................... 30
    British Columbia ............................................................................................................................... 30
    Michigan .......................................................................................................................................... 30
    Minnesota ........................................................................................................................................ 31
    Oregon ............................................................................................................................................ 31
    Washington ...................................................................................................................................... 31
    Wisconsin ......................................................................................................................................... 31
Interagency Permitting Procedures ....................................................................................... 32
  Division of Authority and Responsibilities ............................................................................... 32
    British Columbia ............................................................................................................................... 32
    Michigan .......................................................................................................................................... 32
    Minnesota ........................................................................................................................................ 32
    Oregon ............................................................................................................................................ 33
    Washington ...................................................................................................................................... 33
    Wisconsin ......................................................................................................................................... 33
  Coordination Between Agencies............................................................................................. 34
    British Columbia ............................................................................................................................... 34
    Michigan .......................................................................................................................................... 34
    Minnesota ........................................................................................................................................ 34
    Oregon ............................................................................................................................................ 35
    Washington ...................................................................................................................................... 35
    Wisconsin ......................................................................................................................................... 35
Effects of Docks....................................................................................................................... 36
 Environmental Effects ............................................................................................................. 36
    Effects on Shoreline and Sediments................................................................................................... 36
    Effects on Vegetation ........................................................................................................................ 38
    Effects on Aquatic Animals ................................................................................................................ 41
    Cumulative Effects ............................................................................................................................ 44
 Other Effects .......................................................................................................................... 47
Applying Science to Dock Regulation .................................................................................... 50
    Burdick and Short Guidelines for Dock Design .................................................................................. 50
    Army Corps Recommendations for Pile Driving ................................................................................. 51
    NOAA’s Best Management Practices for Docks.................................................................................. 51
    Northern Florida Panhandle Guidelines for Dock Design ................................................................... 52
Supporting and Defending Management Decisions............................................................ 54
    Case Study: Stutchin v. Town of Huntington .................................................................................... 54
    Case Study: Samson v. City of Bainbridge Island and State of Washington Department of Ecology ... 55
Phase Two: Cumulative and Secondary Impacts of Private Freshwater Docks in Alaska .... 57
 Introduction ........................................................................................................................... 57
 Summary of Literature Review ................................................................................................ 57
 Summary of Interviews ........................................................................................................... 58
 What the Literature Review and Interviews Offer on Specific Issues ........................................ 60
    Definitions of Freshwater Cumulative and Secondary Impacts ........................................................... 60
    Procedures for Measuring and Tracking Cumulative and Secondary Impacts ..................................... 61
    Current and Proposed Management Techniques .............................................................................. 61
    Suggested Improvements to Alaska’s Interagency Permitting Procedures .......................................... 61
    Alaska Successes/Failures and Lessons Learned .................................................................................. 63
Bibliography............................................................................................................................ 65
Appendix 1: Source Documents ............................................................................................. 70
    British Columbia ............................................................................................................................... 70
    Michigan .......................................................................................................................................... 70
    Minnesota ........................................................................................................................................ 71
    Oregon ............................................................................................................................................ 71
    Washington ...................................................................................................................................... 72
    Wisconsin ......................................................................................................................................... 73
    NOAA............................................................................................................................................... 73
Appendix 2: Agency Contacts ................................................................................................ 75
    British Columbia ............................................................................................................................... 75
    Michigan .......................................................................................................................................... 75
    Minnesota ........................................................................................................................................ 75
    Oregon ............................................................................................................................................ 75
    Washington ...................................................................................................................................... 75
    Wisconsin ......................................................................................................................................... 75
Appendix 3: Phase Two Interview Questions ........................................................................ 76
 Agency Personnel ................................................................................................................... 76
 Non-Profit Advocacy Groups .................................................................................................. 77
 Dock Construction Companies ............................................................................................... 78
                                                                   Summary of Findings

The Alaska Department of Natural Resources, Division of Coastal and Ocean Management, contracted
McDowell Group to conduct a study of how resource managers in other states and British Columbia have
managed the location, size, design, use, and impacts of private docks. The purpose of the research is to
inform resource managers as they consider how best to manage dock permitting in Alaska. A summary of key
findings is provided below.

BROAD THEMES

A comparison of dock regulations and management regimes in a coastal Canadian province (British
Columbia), two coastal U.S. states (Washington and Oregon), and three Midwestern states (Michigan,
Minnesota, and Wisconsin) reveals a few broad themes.

    •   There is a general acknowledgement by government of the rights of waterfront property owners to
        access public waters from their land. Obtaining permission to construct small docks for mooring a
        few boats or other watercraft was not particularly complicated in most of the jurisdictions, absent
        special circumstances (a heightened concern for habitat on a specific lake or river, for example).

    •   However, private property owners’ rights to access and use public waters have definite limits in all of
        the jurisdictions. The states and province generally issue clear statements that actual ownership of
        submerged and submersible land remains public. Constructing habitable structures on public waters
        is generally not allowed, for instance, and significant restrictions are placed on the size and design of
        docks and the materials with which they can be constructed. A useful distinction to keep in mind,
        then, is that the public has ownership rights and private property owners have access and use rights.

    •   British Columbia, Washington, and Oregon have more extensive and localized regulation of docks,
        due in part to the special navigation, environmental, and habitat concerns of coastal waters. Coastal
        regions that have become progressively more developed and populated also are covered by more
        regulations than small lakes and rivers where human populations are still sparse.

    •   The Midwestern states’ permitting requirements are generally more streamlined or the states allow
        exemptions that cover a large share of private, noncommercial docks. The Great Lakes are treated
        differently, however, with more restrictions and safeguards, somewhat like the coastal areas of B.C.,
        Washington, and Oregon. The Great Lakes and coastal areas are also more of a concern for the U.S.
        Army Corps of Engineers, which has jurisdiction over navigable waters by virtue of the Rivers and
        Harbors Act of 1899 and the Clean Water Act. The five U.S. states have a range of different
        agreements and practices for coordinating their jurisdictional concerns with those of the Corps of
        Engineers.




A Review of Private Dock Management Regimes: Regulations and Practices                McDowell Group Inc. • Page 1
GENERAL APPROACHES OF INDIVIDUAL JURISDICTIONS

To briefly summarize the individual jurisdictions’ approaches to dock regulations:

     •   British Columbia focuses on minimizing the effects of dock building generally while providing
         sufficient flexibility to address specific concerns and conditions where necessary. B.C. grants general
         permission to riparian landowners to build docks with specific size limits on rivers and lakes. Specific
         permission is required for all coastal docks.

     •   Michigan is permissive in its approach to docks classified as “minor projects,” which, in general, are
         those of the same size as others in the vicinity. Seasonal docks are not regulated at all and
         Michigan’s regulations and policies are geared toward a process that is simple for both property
         owners and the state itself.

     •   Minnesota also strives to keep its dock regulation simple to encourage compliance and keep
         standards enforceable. The State grants general permission for riparian landowners to construct
         docks of a certain size on lakes that are classified for general or recreational development. Minnesota
         is one of several states in the process of updating its dock-building rules or regulations.

     •   Oregon’s approach is quite different conceptually than the other five jurisdictions. Rather than
         requiring individual permits or issuing general permission to build docks, Oregon requires all docks
         to be registered every five years. At the state level, the size and materials limitations on docks are
         minimal, but state approval is conditioned on first obtaining approval from local governments,
         where more rigid rules are often in place. Oregon’s approach at the state level is more to gather
         information on the number and types of docks on public waters than to actively regulate them. Like
         Minnesota, Oregon has proposed new rules, which are making their way through the public process.
         The basic approach won’t change, however, and the most controversial element of the proposed
         rules is the doubling of the basic fee that landowners must pay every five years.

     •   Like Oregon, much of Washington’s regulation of dock building is done at the local level. State law
         requires local jurisdictions to have Shoreline Management Plans and a special office of regulatory
         assistance was created to help the public navigate the complex system of state and local permitting.
         Local rules and requirements are in a degree of flux as a result of a 2003 state legislative directive
         that Shoreline Management Plans be updated, a process that is scheduled to be completed in the
         next few years.

     •   Wisconsin’s dock regulations are guided by a cooperative approach that steers as many prospective
         dock builders as possible towards a size and design that is exempt from any permitting
         requirements. Like the other Midwestern states, Wisconsin allows local jurisdictions to enact more
         stringent restrictions on dock building, but few have done so because of the burden and expense.




A Review of Private Dock Management Regimes: Regulations and Practices                 McDowell Group Inc. • Page 2
COMMON APPROACHES

Enforcement of restrictions and regulations for docks is not aggressive in any of the states or B.C. Resources
to actively investigate violations are limited, both in money and staff time, and for the most part, the six
jurisdictions rely on public complaints to bring problems to their attention. Once notified of a dock that
violates one or more of the restrictions, the jurisdictions generally seek voluntary compliance first before
initiating the process of imposing fines or other penalties.

As a whole, the six jurisdictions take a generally permissive approach to docks that are relatively small and
designed primarily for accessing public waters adjacent to private land, absent special local concerns. Those
special concerns are extensive in some jurisdictions and on certain specific bodies of water, however. The
experience of a dock builder on one body of water in terms of the permitting process can be very different
than the experience of a dock builder on a different, more protected body of water, even if the docks
themselves are similar.

ENVIRONMENTAL EFFECTS OF DOCKS

Expanding the scope beyond the six jurisdictions whose dock management regimes were examined in detail,
the project team reviewed studies from throughout the continent on the effects of docks. The two areas of
dock-related research that have garnered the most attention from the scientific community are the effects of
dock shading on vegetation and aquatic animals, and the effects of contaminants from treated wood used in
piers.

Effects of Dock Shading

Shading of vegetation is the most widely documented consequence of docks in scientific literature to date.
Conclusions from studies on the effects of shading are as follows:

    •    Shading can lead to as much as a 10-fold decrease in light under docks.

    •    Reduced light under docks decreases stem density of vegetation growing under piers. Studies have
         documented reductions in seagrass stem density ranging from 40 to 71 percent. The reduction of
         stem density also corresponds with reduced biomass under docks.

    •    Research is mixed on whether docks oriented north-south allow more light to reach vegetation than
         those oriented east-west. Some research indicates greater height of the dock above water level can
         offset negative effects of orientation, and geographic orientation may play a greater role in northern
         latitudes than in southern ones.

    •    Several studies have indicated that adjusting the dock surface with grating or plank spacing to allow
         in more light has limited value, but conclusions in that area also are somewhat mixed.

    •    One study found that the production of phytoplankton in the total water column under overwater
         structures is lower than that in open water.

    •    Several studies have found declines in aquatic organisms under piers. One study, for instance, found
         a median of 23 macroinvertebrates, such as snails and scuds, under piers, compared to 61 in the

A Review of Private Dock Management Regimes: Regulations and Practices              McDowell Group Inc. • Page 3
        control areas. Fish were caught at a rate of 11.2 per night under piers, compared to 38.7 per night in
        the control sites.

    •   One research team noted that a problem resulting from lost or reduced seagrass beds due to dock
        shading is fragmentation of habitat. The concern is that if habitat becomes highly fragmented, it can
        pose difficulties for fish and wildlife trying to move between areas of usable habitat.

Effects of Contaminants from Treated Wood

Studies on dock-related contaminants have largely focused on chromated copper arsenate (CCA), a common
preservative that has been used in treated wood for decades. Since 2004, CCA is no longer used in residential
freshwater docks due to U.S. Environmental Protection Agency restrictions, but it continues to be used in
wood used in marine waters. Studies on CCA have documented the following:

    •   Most leaching of CCA occurs in the first 90 days after the immersed structure is built.

    •   Factors that affect leaching are:

             •   Fineness of the surrounding sediment, with leachates moving more easily and farther into silt
                 and clay than sand.

             •   Low pH, which increases leaching rates.

             •   High salinity, which also increases leaching rates.

             •   Size of a water body and its flushing capacity. The greater each of these are, the lower the
                 effect of leachates on the ecosystem.

    •   Toxicity tests in South Carolina showed that sediments in tidal creeks with docks were not more toxic
        than sediments in creeks without docks.

    •   Reduced diversity, fewer species, slower growth rates, and lower biomass have been documented
        among organisms living on treated wood. Similarly, fewer species lived in sediments in which metals
        from treated wood had accumulated.

    •   Accumulations of copper and arsenic from treated wood have been found in lower levels of the food
        chain, but not in its higher levels.

    •   Contaminants from treated wood have not been found at acutely toxic levels in organisms living in
        close proximity to the wood. These studies have included testing of oysters, amphipods (a type of
        crustacean), mummichogs, mud snails, white shrimp, red drum, and other fish.

Other Dock-Related Effects

    •   Construction — The technique of high-pressure jetting to install pilings has been found to leave bare
        areas up to 6 and 7 feet in diameter around pilings for as long as 10 years. Low-pressure jetting
        resulted in much faster regrowth of grasses.



A Review of Private Dock Management Regimes: Regulations and Practices                McDowell Group Inc. • Page 4
    •   Rock-Crib Structures — Several studies have found increased numbers of fish in some cases around
        rock-crib structures (timber frames filled with rocks). (Note: Rock-crib docks can cause problems
        when they do not allow a free flow of water, an issue not addressed in this study.)

    •   Floating Docks — One study found that floating docks that rest on the bottom at low tide result in
        significant changes in algal production and macrofauna, mostly polychaete worms, underneath
        docks. The number of meiofauna, minute animals living in sediment, did not change significantly
        under these floating docks.

    •   Simplification of Habitat — One consequence of docks is they simplify the shoreline and reduce the
        amount of complex habitat — such as root wads, tree branches, and woody debris — which provides
        refuge for prey species. Studies have documented that simplified aquatic habitat assists predatory fish
        and hurts prey species because of reducing their opportunities for cover.

CUMULATIVE AND SECONDARY IMPACTS OF DOCKS

Researchers generally agree that more research is needed on the cumulative environmental impacts of docks
and frequently note the difficulty in separating the impacts docks have on the environment from the broader
impacts of increased development. Although it is difficult to quantify cumulative impacts with great precision,
dock managers from other jurisdictions said that a general understanding of how docks can have a negative
environmental effect at some threshold level was sufficient to support regulations.

Increased boat traffic is a natural consequence of increased dock building in an area, which can also impact
plant and animal life. Boating-related concerns include contamination from fuel discharges, erosion of
shorelines, and disturbances to wildlife.

EFFECTS ON NAVIGATION AND SOCIOECONOMIC FACTORS

Although docks are recognized as a potential interference to navigation, federal and state laws are clear that
the rights of the public to safely navigate on public waters take precedence over private rights to build docks.
Docks can enhance property values and stimulate economic activity tied to recreational boating. Beyond
some level, however (often a subjective determination), dock proliferation can negatively affect tourism and
local recreational use of public waters for fishing and other types of recreation.

APPLYING SCIENCE TO DOCK REGULATION

Among those who have developed guidelines for dock construction based on available science are
researchers David Burdick and Frederick Short, both of the University of New Hampshire in Durham; the U.S.
Army Corps of Engineers; the National Oceanic and Atmospheric Administration’s National Centers for
Coastal Ocean Science and the Office of Ocean and Coastal Resource Management; and an interagency team
in the northern Florida panhandle. Below are some of their key recommendations for docks.

    •   Dock size — Minimize as much as possible. Burdick and Short recommend a width of no more than
        6.6 feet, while NOAA advises a width of three to four feet; the north Florida panhandle team
        recommends a maximum width of four feet. Limit the length to the minimum needed to reach water
        navigable at mean low water (NOAA).

A Review of Private Dock Management Regimes: Regulations and Practices                McDowell Group Inc. • Page 5
    •   Dock height — Burdick and Short recommend at least 10 feet above the bottom; NOAA suggests
        one foot of elevation above mean high water for each foot of dock width for docks over tidelands or
        a minimum of five feet above mean high water; the north Florida team calls for at least five feet
        above mean high water, measured from the dock’s surface.

    •   Orientation — Orient dock as close to north-south as possible.

    •   Pile driving — Avoid high-pressure jetting. Space pilings over seagrasses 10 to 20 feet apart,
        according to the Corps of Engineers; the north Florida team recommends pilings be spaced at least
        10 feet apart.

    •   CCA-treated wood — Limit use to only marine waters, and minimize that when possible. If CCA-
        treated wood is used, soak it in saline waters for 90 days to allow leaching.

    •   Plank spacing — Space at least one-half inch apart (north Florida team) or use alternative materials
        that increase light transmission (NOAA).

SUPPORTING AND DEFENDING MANAGEMENT DECISIONS

Dock management rules and regulations, and the decisions of government officials charged with regulating
docks, are sometimes challenged by property owners, but courts and other decision-making bodies give
considerable deference to government. A key point is that landowners have no absolute right to build docks;
they are generally entitled to access public waters from their property, but that access can come in a variety
of forms. The water, including submerged and submersible lands on the shore, is owned by the public. With
public ownership comes a management responsibility and if decisions are well-documented and broadly
rational, they are usually protected from challenge.

PHASE TWO: CUMULATIVE AND SECONDARY IMPACTS OF PRIVATE FRESHWATER DOCKS IN ALASKA

A follow-up second phase of this study determined that the primary concern of Alaska experts in terms of the
cumulative and secondary impacts private freshwater docks were having in Alaska was with dock proliferation
(both in size and number) on Mat-Su Borough lakes. The closest thing to a consensus in terms of
recommended action was conducting an inventory of these types of docks, many of which are apparently
unauthorized. There was also general agreement that landowners should be encouraged generally to build
smaller and simpler docks to prevent and minimize cumulative and secondary impacts. This encouragement
should come in the form of public education efforts and in streamlined regulations that make it very easy to
build these types of docks. This approach would also have the benefit of conserving agency resources for the
larger, more complex docks that create more specific site-specific concerns and more concerns for their
contribution to cumulative and secondary impacts.




A Review of Private Dock Management Regimes: Regulations and Practices                  McDowell Group Inc. • Page 6
                                                                                  Introduction

The Alaska Department of Natural Resources, Division of Coastal and Ocean Management, contracted
McDowell Group to conduct a study of how other states and British Columbia have managed private docks.
Alaska has recently experienced an increase in construction of private docks on state waterways, as well as a
growing call from the public to loosen the State’s size restrictions on private moorage. A similar proliferation
of docks has occurred in other states in recent decades, and DNR asked McDowell Group to examine how
regulatory agencies in other locations have dealt with this growth.


Scope of Work
Some Alaska agencies are considering whether to update their requirements for private docks, as well as
reviewing their policies and procedures related to dock oversight. In an effort to base any changes on
reasonable, enforceable standards and the most current scientific research, DNR officials requested that
McDowell Group investigate how British Columbia, Michigan, Minnesota, Oregon, Washington, and
Wisconsin have managed the size, location, design, and use of private docks. DNR requested a review of
permitting processes, scope of agency jurisdiction, and interaction between local, state, and federal
regulators responsible for dock permitting in the five states and one province selected for the study.
Management successes and failures were to be examined so Alaska could learn from the experience of
regulatory bodies in other parts of the country and in Canada. In addition, the project team was charged
with conducting a comprehensive examination of research on the effects of docks, particularly when
concentrated in an area, with particular attention to effects on resident and anadromous fish populations,
habitat, competing uses, and cumulative and secondary impacts.

After the initial research was conducted, the study team prepared a draft report and presented its findings to
officials from a variety of state and federal agencies connected in some way to dock regulation. Subsequent
to the distribution of the report and the presentation of findings, DNR requested a second phase to the
project consisting of: 1) a review of the most relevant Alaska-specific literature on cumulative and secondary
impacts; and 2) interviews of approximately 15 state and federal agency officials and others with specific
knowledge about how private freshwater docks are regulated in Alaska. The focus on this second phase was
on determining whether Alaska’s dock management approach could be improved to minimize or prevent
cumulative and secondary impacts.


Methodology
The McDowell Group study team first conducted a broad literature search related to dock management
across the country and in British Columbia, examining academic, government, and news reports, as well as
web sites and other sources of information related to shoreline regulations. In addition, McDowell Group
researchers contacted agency officials involved in dock management in Alaska to hear their concerns and
perspectives on issues related to dock construction and regulation.



A Review of Private Dock Management Regimes: Regulations and Practices               McDowell Group Inc. • Page 7
The McDowell Group team then gathered as much information as possible on each of the six jurisdictions
selected as the core places of study. Researchers interviewed one to three officials from each state or
province, asking about the efficacy of the existing policies, innovative or Best Management Practices,
management successes and failures, and the scientific and legal underpinnings of the regulations. In addition,
the McDowell Group team researched specific topics related to potential dock effects and examined
regulations, scientific research, and legal cases involving environmental, socioeconomic, cumulative, and
secondary effects, as well as access, navigation, and competing uses.

For the second phase of the project, DNR officials provided the study team with a list of articles and reports to
review and the names of people to interview. The study team also supplemented the list of interviewees and
literature review where appropriate from what they had learned during the initial phase of the project.




A Review of Private Dock Management Regimes: Regulations and Practices                McDowell Group Inc. • Page 8
                                                        Comparison of Dock
                                             Restrictions and Requirements

Size
Surface Area

Size restrictions for docks are handled in a wide range of ways in the six jurisdictions examined for this study.
British Columbia, Michigan, Minnesota, and Wisconsin have instituted programs that allow docks to be built
without an individual permit as long as they meet certain requirements. In British Columbia, a river or lake
dock does not require a specific permission if the surface area is no greater than 20 square meters (215
square feet). All marine docks in B.C. require an individual permit.

In Minnesota, the maximum surface area for a private dock without a permit is 120 square feet, if measured
separately from the access dock, or 170 square feet, including the access dock. With an individual permit,
platforms, generally any part of the dock more than 8 feet wide, can be no more than 300 square feet. Under
Minnesota’s existing rules, no platform is allowed without a permit. A proposed rules change would allow
dock platforms without a permit if they are no more than one per lot; no more than 120 square feet, or 170
square feet if the access dock is included; or if they are a public structure no greater than 320 square feet. The
proposed size reflects the sizes used on a general permit since 2007, and most existing platforms would not
need to be permitted with this revision.

In Wisconsin, docks below a certain size are completely exempted from state permitting requirements
although Corps of Engineers and local permits may be required. Wisconsin has length and width restrictions
to qualify for the exemption, as described below, but no specific limits on surface area.

Michigan aims to keep docks in line with others in the vicinity. Individual permits are granted for “minor
projects,” which in terms of size restrictions simply means the dock must not be longer or of greater size than
similar structures in the area or on the same watercourse. Docks granted permits under this minor project
category also must not be so large as to “unreasonably interfere” with navigability or “boatability” of the
water involved. The State has length and width requirements as discussed below, but no specific limitation on
surface area.

Michigan also has a two-year temporary general permit in place (set to expire in July 2010) that covers both
state permitting requirements and Corps of Engineers permit requirements. The size limitations are similar to
the minor project exemption (not greater than the length or size of similar structures in the vicinity and not
so big as to interfere with navigability).

The majority of dock regulation in Oregon occurs locally. At the state level, Oregon requires only that docks
less than 2,500 square feet be registered (the registration includes an affidavit from the local planning official
saying either that the project isn’t of the type regulated or that the project is consistent with local plans and
zoning).



A Review of Private Dock Management Regimes: Regulations and Practices                McDowell Group Inc. • Page 9
Washington also defers most dock management to the local level where Shoreline Master Programs (SMPs)
are required. Property owners have general permission from the State to build recreational docks on state-
owned waters as long as no more than four pleasure craft can be moored at the dock, and, more
importantly, as long as it conforms to local laws and whatever Shoreline Master Program applies.

Width

In the four jurisdictions with width restrictions at the state or provincial level for docks without a permit, these
limits range from 4 to 8 feet.

In British Columbia, no permit is required if the dock is no more than 1.5 meters wide (about 5 feet) for
access ramps or walkways and no more than 3 meters (almost 10 feet) for any other part of the dock.
Similarly, in Minnesota, a dock up to 8 feet wide can be built without a permit. Docks that exceed these limits
in B.C. and Minnesota require individual permits.

Under a proposed rules revision, Minnesota would reduce the width limitation for docks that don’t require a
permit to 6 feet. The rationale for the change is that few docks exceed 6 feet anyway and a permit can be
issued when a wider one is requested. The revision also would allow for an exception for docks in the Army
Corps of Engineers 9-foot navigation channels on the St. Croix and the Mississippi rivers. These 9-foot
channels are maintained so vessels can safely navigate these waters. Docks in these areas could be up to 10
feet wide, which the State deemed reasonable because of the flotation systems employed and the fluctuating
water levels in these areas.

Michigan offers guidance in interpreting its general requirement that docks not be bigger than other
structures in the vicinity to qualify as minor projects by saying that widths of 4 feet or less are acceptable.
Wisconsin exempts docks up to 6 feet wide from all permitting requirements and allows a platform at the end
of the dock that is up to 8 feet wide.

Oregon and Washington have only very general restrictions on size at the state level (and no restrictions on
width) because most regulation of docks is done at the local level.

Length

Restrictions on length are relatively minimal in the five states studied. Of the six jurisdictions researched,
British Columbia has the most precise length limit: 30 meters (about 98 feet) for docks allowed under general
permission. Longer docks require specific permission.

Michigan requires dock lengths to be similar to others in the immediate area. Oregon and Washington have
no specific limits on length at the state level, but most dock regulation occurs at the local level through
comprehensive plans.

Minnesota and Wisconsin tie length to use and navigability. Under its general permit, Minnesota allows docks
to be no longer than needed for their intended use and for reaching navigable water. Similarly, Wisconsin
limits length to reaching a depth of three feet or what is needed to moor a boat, or use a boat lift or hoist.




A Review of Private Dock Management Regimes: Regulations and Practices                 McDowell Group Inc. • Page 10
Minnesota state officials do not want to regulate the length of docks, largely because it hasn’t been an issue,
according to one agency representative. “It hasn’t been a problem with people going out too far in the
water. People are just going out to a navigable depth,” she said. When people have built docks that extend
beyond that, local sheriffs deal with the property owner.

Minnesota is, however, proposing a new length limit for shoreline structures that do not require a permit.
Under the revision, each lot would be allowed no more than 40 feet of structure parallel to the shoreline.
Most property owners would not be affected by this proposed change, because they typically use about 20 to
22 feet of shoreline, according the Minnesota Department of Natural Resources. The purpose of this proposal
is to encourage the compact design of shoreline structures to protect the environment.




A Review of Private Dock Management Regimes: Regulations and Practices             McDowell Group Inc. • Page 11
                                                                            Size Restrictions for Docks
                                              Surface Area                                              Width                                                 Length
                          General permission is granted for lake and river
                                                                                  For general permission, the dock cannot
                          docks up to 20 square meters (215 square feet).                                                              For general permission, the dock cannot extend
                                                                                  exceed 1.5 meters (about 5 feet) for access
    British Columbia      Lake and river docks larger than 20 square                                                                   more than 30 meters (about 98 feet) from the
                                                                                  ramps or walkways and 3 meters (almost 10
                          meters and all coastal docks require specific                                                                present natural boundary of the upland parcel.
                                                                                  feet) for any other portion of the dock.
                          permissions.
                          No specific limitation on surface area. “Minor
                          projects” permitted on both inland lakes and
                          streams and Great Lakes submerged lands if
                                                                                                                                       Similar to other structures in the immediate
    Michigan              length or size is not greater than the length or        No more than 4 feet.
                                                                                                                                       vicinity.
                          size of similar structures in the vicinity and dock
                          will not unreasonably interfere with navigability
                          or boatability of the water.
                          No permit required if the dock is no more than
                          120 square feet, measured separately from the
                                                                                                                                 No permit required if the dock is no longer than
                          access dock, or 170 square feet, including the          No permit required if the dock is no more than
    Minnesota 1                                                                                                                  needed to achieve its intended use, including
                          access dock, which must be no more than 5 feet          8 feet wide.
                                                                                                                                 reaching navigable water depth.
                          wide. Platforms approved under a permit can be
                          no more than 300 square feet.
                          No permit required, but registration is if dock is
                          2,500 square feet or less (need planning
    Oregon                department affidavit on the city/county level,          None                                                 None
                          where most regulation occurs). Leases are
                          required for docks more than 2,500 square feet.
                          General permission granted by statute for
                          owners to install on state waters private
                          recreational docks big enough to moor up to
    Washington                                                                    None                                                 None
                          four pleasure boats typical to the body of water;
                          most of the more specific regulation occurs at
                          federal and local levels.
                                                                            Exempt from permitting requirements if not
                          No specific limits on surface area to qualify for                                                            Exempt from permitting requirements as long as
                                                                            wider than six feet, but may have a loading
                          general exemption from state permitting                                                                      dock is not longer than necessary to reach
    Wisconsin                                                               platform at waterward end with maximum
                          requirement; size limits are for width and length                                                            3-foot water depth or adequate depth for
                                                                            dimensions of 8x8 feet if dock is not located in
                          only.                                                                                                        mooring a boat or using a boat lift or boat hoist.
                                                                            an Area of Special Natural Resource Interest.


1The Minnesota general permit that allows some docks to be built without a permit can only be used in lakes with a General Development or Recreational Development classification.
Recreational Development Lakes usually have 60 to 225 acres of water per mile of shoreline, between 3 and 25 dwellings per mile of shoreline, and are more than 15 feet deep. General
Development Lakes usually have more than 225 acres of water per mile of shoreline and 25 dwellings per mile of shoreline, and are more than 15 feet deep.



A Review of Private Dock Management Regimes: Regulations and Practices                                                                               McDowell Group Inc. • Page 12
Design
Materials

British Columbia has the most precise restrictions on materials of the six jurisdictions studied. In all private
docks in British Columbia, crib foundations or solid core structures made of cement or steel sheeting are
prohibited. Such structures block the free flow of water and can trigger erosion and damage habitat,
according to the province. In general-permission docks (those which do not require an individual permit), no
pressure-treated wood is allowed. Dock owners are required to use unpainted and unstained woods to avoid
contaminating the water. Preferred types of wood are red cedar, redwood, cypress, or eastern white cedar.
Plastic decking and floats also are allowed.

Wisconsin requires polystyrene floats to be coated so as to resist gas, oil, or abrasion. Likewise, metal and
plastic drums used in docks need to be corrosion-resistant and free of any product residue.

Michigan and Minnesota both have restrictions on materials that could damage the environment, but no
specifics on what that means. While “clean, nonpolluting” materials are required in Michigan, this issue is not
focused on by state officials and few means of enforcement exist to ensure this. In Minnesota, docks cannot
be built from materials that “could hurt aquatic organism or water quality,” but what that means is not
clearly defined. Under a proposed rules revision, Minnesota would prohibit any use of exposed foam because
of its tendency to deteriorate and break up, littering surrounding waters. In Minnesota, rock cribs are allowed
without a permit when the lakebed is largely bedrock.

In Oregon and Washington, local ordinances and comprehensive plans, rather than state rules or regulations,
dictate restrictions on materials. In King County, Washington, for example, the Shoreline Master Plan requires
piling to be steel and prohibits the use of pentachlorophenol, creosote, CCA, or any comparably toxic
compounds. King County’s plan also cites the Best Management Practices of the Western Wood Preservers as
a required guide when using certain kinds of piling (ACZA).

Other Design Restrictions

Several jurisdictions have design restrictions to prevent a dock from being turned into a building. In British
Columbia, for instance, docks may not have roofed or covered structures, unless allowed at the local level.
Likewise, in Michigan, docks cannot have roofs, covers, or walls, and in Minnesota, they cannot have roofs,
walls, or sewage facilities.

Other design constraints address water flow and environmental concerns. In Michigan, for instance, a dock
must allow a free flow of water and drift. Minnesota has proposed under its requirements for docks without a
permit that at least one third of a rock crib dock must be open to allow the free flow of water to prevent
negative effects from the rock crib. In Wisconsin, solid piers on fill and piers on rock-filled timber cribs or
similar foundations require a state permit and are allowed only in certain waterways under limited
circumstances. Wisconsin also prohibits docks with a screen or similar structure that could trap plants and
debris. In British Columbia, docks must be constructed so that they are never grounded at low tide. They
must be on pilings, suspended or floating at all times.


A Review of Private Dock Management Regimes: Regulations and Practices              McDowell Group Inc. • Page 13
                                                                  Materials and Design Restrictions
Location                                                   Materials                                                                 Design
                        No crib foundations or solid core structures made of cement or steel
                                                                                                  Must ensure that dock structures are not grounded at low water/low tide.
                        sheeting. For general permission docks, no pressure-treated wood. To
                                                                                                  All docks must be on pilings/suspended or floating at all times. May not
British Columbia        avoid water contamination, use unpainted and unstained preferred dock
                                                                                                  use roofed or covered structures on or adjacent to the dock unless
                        woods, such as red cedar, redwood, cypress, eastern white cedar, or
                                                                                                  permitted by local bylaw.
                        plastic decking and floats.
                        Made of clean, nonpolluting materials (no written guidance and
                                                                                                  Must allow free flow of water and drift. No roofs, covers, or walls above
Michigan                Michigan contact says it’s not something they worry about at the state
                                                                                                  or below the water level.
                        level where there’s very little enforcement).
                        Under general permit, no materials that could hurt aquatic organisms or
Minnesota               water quality are allowed. Docks may be placed on rock cribs without a    Can’t include walls, a roof, or sewage facilities.
                        permit where lakebed is predominantly bedrock.
                        Materials and design restrictions covered by local comprehensive plans
Oregon                                                                                            NA
                        and zoning ordinances. No restrictions as part of registration process.
                        Materials and design restrictions are left to Shoreline Master Programs
Washington              (administered by state’s 29 counties and more than 200 cities with        NA
                        “shorelines of the state”).
                                                                                                  May not be constructed with a screen or similar structure that would trap
                        Polystyrene floats must be coated or contained to resist gas, oil, and    or accumulate aquatic plants or other debris. Must be floating or placed
Wisconsin               abrasion. Metal and plastic drums must be free of any product residue     on piles or posts. Solid piers on fill and piers on rock-filled timber cribs or
                        and corrosion resistant.                                                  similar foundations require a DNR permit, and are only authorized in
                                                                                                  specific waterways under limited circumstances.




            A Review of Private Dock Management Regimes: Regulations and Practices                                             McDowell Group Inc. • Page 14
Location, Access, and Navigation
British Columbia requires docks to be 5 meters (or about 16.5 feet) from the side property line or six
meters (about 20 feet) if the adjacent property is a park or public beach access, and at least 10 meters
(about 33 feet) from any existing dock or structure. This is a federal requirement under Transport
Canada’s Navigable Waters Protection Act and intended to minimize a dock’s effects on neighboring
properties. It is enforced at the time of permit application. If only one spot on the property is suitable for
a dock and it does not meet these requirements, the issue is discussed with the neighboring property
owner and a variance may be required.

The other jurisdictions don’t have specific setback requirements at the state level, but Oregon requires
that owners of property within 200 feet of the dock be identified in the dock registration and given an
opportunity to object to the dock, based on location or other reasons. Several states specifically noted
that location restrictions are more likely to occur at the local level.

British Columbia and Oregon require that docks not interfere with the public’s use of submerged or
submersible land (defined as the area between high water and low water marks). The other states did not
address access specifically, although local jurisdictions in those states likely do (especially Oregon and
Washington).

Navigation is a commonly protected public right that dock owners are not allowed to impede. British
Columbia has specific requirements for how far docks must be away from navigation channels, and
Wisconsin prohibits docks from totally enclosing any portion of navigable waterways. Other states have
general restrictions on docks related to protecting navigation.




A Review of Private Dock Management Regimes: Regulations and Practices           McDowell Group Inc. • Page 15
                                        Restrictions Related to Location, Access, and Navigation
                                        Restrictions on Location                             Access                           Navigation
                                Must be five meters (about 16 feet) from
                                                                              Can’t block access along a beach
                                the side property line or six meters
                                                                              or foreshore area between high          Must not interfere with
                                (about 20 feet) if adjacent to dedicated
                                                                              water and low water mark unless         navigation. Offshore end of
                                public beach access or park and at least
           British Columbia                                                   reasonable alternative means of         structure should be at least
                                10 meters (about 33 feet) from any
                                                                              passage are available to enable         30 meters (100 feet) from
                                existing dock or structure. All docks
                                                                              going around or across the              navigation channels.
                                should be oriented at right angles to the
                                                                              structure (e.g., stairs over a dock).
                                general trend of the shoreline.
                                                                              Can’t unreasonably interfere with
                                None, other than that the structure be                                                Can’t unreasonably
           Michigan                                                           the “boatability” of the water
                                “appurtenant to the applicant’s upland.”                                              interfere with navigability.
                                                                              involved.
                                                                                                                      Can’t obstruct or be a
           Minnesota            None                                          None
                                                                                                                      hazard to navigation.
                                                                              Must allow public to use the
                                No specific restrictions, but neighboring
                                                                              waterway and state-owned                Can’t unreasonably
                                landowners (within 200 feet of proposed
           Oregon                                                             submerged and submersible land          interfere with the public’s
                                dock) are given opportunity to object
                                                                              for fishing, navigation, commerce,      right to navigate waterway.
                                based on location, among other things.
                                                                              and recreation.
                                Person proposing to build a dock must
                                own the property “physically adjacent to
           Washington                                                         None at state level.                    None at state level.
                                aquatic lands. Other restrictions likely in
                                local Shoreline Master Programs.
                                Location can’t interfere with the rights of
                                                                                                                      Docks may not totally
                                other riparian owners. Many
           Wisconsin                                                          None                                    enclose any portion of a
                                municipalities have other restrictions
                                                                                                                      navigable waterway.
                                including side setbacks.




A Review of Private Dock Management Regimes: Regulations and Practices                                                   McDowell Group Inc. • Page 16
Allowed Uses
The six jurisdictions generally limit dock usage to mooring boats or other watercraft, and generally restrict
docks being used for habitation. Several also explicitly prohibit the docks being used as boathouses or even as
covered moorage, while Wisconsin allows seasonal boat shelters, hoists, and lifts. British Columbia and
Washington are the strictest about docks being for the exclusive purpose of basic moorage.

                                                   Allowed Uses

                                      Nonmoorage uses are prohibited. These uses include beach houses,
                                      storage sheds, patios, sun decks, retaining walls and hot tubs. In
       British Columbia
                                      exceptional circumstances, some nonmoorage uses may be considered for
                                      tenure under the residential policy on a case-by-case basis only.
                                      To be eligible for minor permit or temporary general permit docks must be
       Michigan                       for boating access and not designed to include boat houses, residences,
                                      covered recreational platforms, or similar structures.
                                      A dock may provide access to moored watercraft or deeper water for
       Minnesota                      swimming, fishing and other recreation. Docks may not be used for human
                                      habitation or as a boat storage structure.
                                      Use isn’t regulated other than that “floating recreational cabins” (a moored
       Oregon
                                      structure used as a dwelling) have different square footage limitations.
                                      Basic moorage only (no additional uses such as mooring buoys, boat
                                      ramps, or watercraft lifts). Covered moorages and boat houses are
       Washington
                                      prohibited as are live-aboard uses. Project must also conform to any use
                                      limitations in local Shoreline Master Program.
       Wisconsin                      Dock may have an associated seasonal boat shelter, boat hoist, or boat lift.




A Review of Private Dock Management Regimes: Regulations and Practices                     McDowell Group Inc. • Page 17
Fees
Fees vary from $50 in Michigan for a minor permit to as much as $1,000 for a large project in Minnesota.
British Columbia, Michigan, Minnesota, and Wisconsin all have situations in which no fee is required for some
private moorage structures either because small, noncommercial docks are exempted from permitting
requirements or because a general permit has been issued. Fees in Washington could be very high depending
on how many state agencies would be required to grant permission and the requirements of local
comprehensive plans.

Oregon’s fee structure is unique and a cause for controversy according to State officials. The basic fee for
registering most small docks is $125 (in proposed rules that amount would be raised to $250), but the fee
must be repaid every five years and there have been public complaints about the necessity for such a fee at
the state level, especially when the registration process is fairly simple and most meaningful dock regulation
occurs at the local level.

                                                         Fees

                                             $250 Canadian if a specific permission is required. No
                   British Columbia
                                             cost if it is not.
                                             $50 for a “minor permit”; no fee if project qualifies for
                   Michigan
                                             temporary general permit
                                             $150-$1,000 for a permit, depending on cost of the
                   Minnesota                 project. No cost if the project meets the standards of
                                             the general permit.
                                             From $125 for docks up to 1,000 square feet to $300
                                             for docks between 2,001 and 2,500 square feet.
                   Oregon                    Registrations must be renewed, including another fee
                                             payment, every 5 years. Proposed rules would double
                                             the lowest fee ($125 to $250) and raise all other fees.
                                             A wide variety depending on the project and local
                   Washington
                                             Shoreline Master Program requirements.
                                             No fee is dock qualifies as exempt, which most do.
                   Wisconsin                 Otherwise, a wide range of fees depending on the
                                             project.




A Review of Private Dock Management Regimes: Regulations and Practices                      McDowell Group Inc. • Page 18
                                                                 Comparison of Dock
                                                                Management Regimes

Basis of Management Regimes
The power to regulate private docks in public waters in the six jurisdictions studied comes from a variety of
combinations of statutory and regulatory authority, as well as public policy, in one case. In Oregon and
Washington, the state government has turned the majority of dock oversight to local communities, while in
the other four jurisdictions, the state or province takes the lead in regulating private moorage. Below is a
summary of the statutory or regulatory foundations for dock management regimes in each of these six places.

British Columbia

Management of private docks in British Columbia is guided primarily by the Crown Land Use Operational
Policy: Private Moorage, which references the Land Act (Ch. 245, Revised Statutes of British Columbia, 1996)
and the Ministry of Lands, Parks and Housing Act (Ch. 305, R.S.B.C., 1996). The policy addresses general
permissions, which allow river and lake docks to be constructed without a permit if they meet certain
standards; specific permissions, for river and lake docks that do not meet general permission requirements
and for all coastal docks; and leases, which are usually issued for 20 years when substantial improvements are
proposed, a significant financial investment is involved, or definite boundaries are required to avoid conflicts.
A lease, which is registerable at the land title office and mortgageable, grants exclusive rights to the
leaseholder and offers more long-term security than a specific permission, which does not convey any rights
to the land and which can be cancelled at any time.

The policy, implemented by the Ministry of Agriculture and Lands, outlines the Ministry’s principles and
goals, which are to reduce the effects of private docks; ensure policy and procedures complement
requirements of local, federal, and other provincial agencies; provide flexibility to allow regional and site-
specific conditions to be addressed; provide dock owners with Best Management Practices and requirements;
and provide for different forms of allocations, with a range of rights, interests, and obligations to meet a
variety of circumstances and needs.

Michigan

Michigan bases its management of docks on general statutory authority (Michigan Natural Resources and
Environmental Protection Act, 1994 PA 451). The statute requires permits for activities occurring within or
over inland lakes or streams, within wetlands, and below the ordinary high water mark of the Great Lakes and
adjacent waterways.

An administrative rule (R 281.816) allows “minor projects” to be permitted without the public hearings or
final inspections required under the statute for other larger projects. Minor projects are defined as
noncommercial docks whose length or size is not greater than others in the vicinity. Docks included under
this minor projects category also must not interfere with the navigability of the body of water they access.


A Review of Private Dock Management Regimes: Regulations and Practices              McDowell Group Inc. • Page 19
Michigan also joined the Corps of Engineers to implement a temporary general permit for two years, set to
expire in July 2010, for docks and other activities that are “similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will have only minimal cumulative adverse effect on
the environment” (Section 30105 of Inland Lakes and Streams Part and Section 30312 of the Wetlands
Protection Part).

Michigan officials said there has been little controversy over its authority to regulate docks in this general
way, although occasionally a dock builder challenges the State’s determination that a dock isn’t a minor
project. Decisions by the state hearing officers have generally been supported because it hasn’t been
particularly difficult to determine whether the size and length of the dock is greater than others in the
vicinity. The State’s basic approach is to make the process simple for property owners and for the State itself
in regulating the majority of docks built by property owners. Michigan does not require permits for seasonal
docks.

Minnesota

The basis for dock management in Minnesota is the State’s Administrative Rules, Chapter 6115, Public Water
Resources, which is based on Minnesota Statutes, Section 103G, Waters of the State. Section 6115.0210
specifically addresses Structures in Public Waters. The State is in the process of revising Chapter 6115 and
plans to hold public hearings on its proposed revision this year.

In addition, the State has issued General Permit 2008-0104, Authorization of Dock Platforms. This permit
allows riparian landowners to construct a single, temporary platform at the lake end of a dock without an
individual permit if the structure meets certain standards. This general permit applies only to docks in lakes
that have a General Development or Recreational Development shoreland lake classification. 2 This general
permit will expire Nov. 30, 2012, or, if the proposed rules are approved, when they take effect.

In discussions with Minnesota officials, several goals and principles behind the State’s oversight of waterfront
structures emerged: Keep regulations simple so compliance is easy; make standards legally enforceable; and
minimize cumulative effects. Also, while officials said the State respects property rights, it has a history of
court cases that established a strong basis of public rights over private interests.

Oregon

Oregon’s management is unusual in that state law specifically exempts from general state dock authorization
procedures docks smaller than 200 square feet that aren’t covered or enclosed (and docks smaller than 1,000
square feet if built prior to September 21, 2001), but requires that exempted docks “be registered with the
Department of State Lands.” (ORS 274.043(4).) Oregon administrative rules then spell out the details of what
it means to register a dock. (OAR 141-082-0140-200.)

Part of the requirements of registering a dock in Oregon is that the structure be in compliance with local
comprehensive planning requirements. Before submitting the registration application to the State, property


2Recreational Development Lakes usually have 60 to 225 acres of water per mile of shoreline, between 3 and 25 dwellings per mile of
shoreline, and are more than 15 feet deep. General Development Lakes usually have more than 225 acres of water per mile of shoreline
and 25 dwellings per mile of shoreline, and are more than 15 feet deep.

A Review of Private Dock Management Regimes: Regulations and Practices                              McDowell Group Inc. • Page 20
owners must present the application to the local planning agency, which might be the city or county, for
review and concurrence. Before the State will consider the registration application, the form must be signed
by a local planning official.

State officials confirmed that this means most of the detailed regulation of small dock building occurs at the
local level. In fact, there’s been some contention with the public about what they’re getting for their state
registration, which must be renewed every five years and for which there’s a minimum $125 fee
(proposed new administrative rules would raise the fee to $250). The State’s response is that, in addition to
compliance with state law, property owners get a document from the State that proves to insurers, other
government entities, and prospective purchasers that the structure is authorized to occupy state-owned land.
The State sends a copy of the registration to the county recorder for the property owners’ benefit and also to
help the local jurisdictions manage their lakes, rivers, and coastlines.

Oregon’s primary policy goal in regulating small noncommercial docks with a registration process at the state
level is to gather information about how state waters are being used. If necessary, the State would exert more
control, but most of the regulation is left to the local jurisdictions.

Washington

Washington has an extensive permitting system for docks created by a wide range of statutory and regulatory
provisions.     The   process   is   coordinated     by    the   Governor’s   Office   of   Regulatory   Assistance
(http://www.ora.wa.gov/documents/shoreline_permitting.pdf). One of the foundations of Washington’s
system is its Shoreline Management Act, whose goal is “to prevent the inherent harm in an uncoordinated
and piecemeal development of the State’s shorelines.” (RCW 90.58.030.) The act applies to all marine waters,
streams with a certain minimum annual flow, lakes 20 acres or larger, shorelands, wetlands, and floodplains.

Another key piece of legislation is Washington’s State Environmental Policy Act (RCW 43.21C), which requires
local shoreline master plans to include provisions for analyzing environmental impacts of proposed uses and
developments. The plans must also address the mitigation of any environmental impacts that can’t be
avoided. In addition to the Department of Ecology, the Washington Department of Fish and Wildlife and the
Department of Natural Resources have statutory and regulatory responsibilities for approving or denying dock
construction.

According to Washington officials, most of the management of docks is through the local shoreline
management plans, which are required under the Shoreline Management Act. The programs are based on
state laws but tailored to local needs. Most of the plans were originally written from 1974 to 1978 after
passage of the Shoreline Management Act. In 2003, the Washington Legislature directed more than 260
towns, cities, and counties to update their plans. Most of the updates will be completed by 2014.

Washington cites the police power provisions of the U.S. and state constitutions as broad, basic authority for
its relevant statutes and regulations. Washington also points to the common law public trust doctrine as a
basis for regulations intended to preserve public waters as a public resource for navigation, commerce,
fishing, recreation, and similar uses.




A Review of Private Dock Management Regimes: Regulations and Practices                 McDowell Group Inc. • Page 21
Wisconsin

Wisconsin officials said their public trust doctrine gave them “a very strong foundation to regulate” and
protect the public’s interest in using state waterways. Wisconsin enacted new legislation in 2008 concerning
the placement of “piers” (a broader definition than docks, but one that includes docks and is sometimes used
interchangeably with docks) (Wisconsin’s Pier Regulations, Everything you need to know for 2009, Wisconsin
Department of Natural Resources, March 2009). The State already had exempted small, noncommercial piers
from permit requirements, but there were questions and controversy about the size requirements, since what
qualified as “small” wasn’t specifically defined. One area of particular concern, for example, was how big a
platform at the end of a pier could be for the pier to be considered exempt.

Consequently, the 2008 legislation exempts from permitting, registration, and fee requirements piers of a
specific size and smaller. According to a Wisconsin Department of Natural Resources study, 85 percent of the
existing piers meet the exemption requirements. The basic size requirements are in the statute specifically
and then summarized in state guidance documents and checklists. Eventually, the administrative rules will be
updated because right now they are out of date. State officials say enacting new rules will be a controversial
process because people will see it as another chance to talk about exemption specifications (even though it is
not because the administrative rules cannot override the statutes).

As with several other jurisdictions, the State does not preclude municipalities or other local governments from
adopting and enforcing their own requirements, although state officials said that few local governments have
done so because enforcement would be a burden in time and money.


Permitting Processes
British Columbia and Washington have some of the most extensive permitting processes of the six
jurisdictions studied, whereas Wisconsin aims to work with the public so that as many as possible can be
exempt from an individual permit. British Columbia, Michigan, Minnesota, and Wisconsin all have programs
that allow a large portion of the private docks constructed to be built without specific permission.

British Columbia

Dock applicants in British Columbia are encouraged to contact FrontCounter BC, a provincial service to assist
with government permits, to find out if they need to complete an application package for private moorage. If
their project meets the standards under the general permission for private docks, no permit application is
necessary. If their project requires a specific permission, they must submit an application package
(www.agf.gov.bc.ca/clad/tenure_programs/programs/privatemoorage/index.html#reqs)             to   the   regional
office of FrontCounter BC. This package must include an application form, a site plan, a side profile drawing,
three photographs of the dock site, proof of adjoining upland ownership or leasehold tenancy, and a
management plan.

The application is reviewed for completeness and compliance with certain prerequisites. If complete, a
notification is sent to the applicant and the application is forwarded to the provincial Integrated Land
Management Bureau, the lead agency in the dock application process. The application then goes through a


A Review of Private Dock Management Regimes: Regulations and Practices              McDowell Group Inc. • Page 22
review by local, provincial, and federal agencies, as well as a consultation by all First Nations involved. Once
the referral process is complete, the adjudication process begins and if concerns are identified, further
information or discussion may be required. The application may then be approved, or, if rejected, the reasons
are documented and notification is sent to the applicant.

Michigan

Both under the specific permit for minor projects and the temporary general permit, which covers both
Michigan and Corps of Engineers requirements, property owners must fill out a permit application form
detailing the dock type, length and width, length and width of “adjacent structures,” and whether there’s a
seasonal support structure or a permanent roof.

The application also requires name and address information, a written summary of how the dock will be
constructed and used, contractor information, detailed information about the specific location, name and
address information for adjacent and impacted owners, and site-specific drawings of the project. The
applicant must certify that the information is correct and in compliance with the State Coastal Zone
Management Program and any local requirements. Signing the application also authorizes state and USACE
officials to inspect the project.

Processing the permit takes 45 to 90 days, after which field staff may inspect the project (state officials said
budget constraints have reduced the number of site visits and they usually just review the plans), and either
issue or deny the permit. If a hearing is required for any reason after the field staff inspection, the process
takes an additional 60 to 90 days. Even if a dock project qualifies as a minor project, public notice of 20 to 45
days is added to the processing procedure if the project is determined to be controversial. Processes also are
established for notifying applicants when their applications are incomplete, giving them time to complete or
correct them.

Minnesota

Minnesota property owners do not have to apply for a public water works permit if their dock meets the
requirements of the state rules for docks. If they are uncertain whether a permit is needed, they need to fill
out   an   application    form      (available   at   www.dnr.state.mn.us/waters/watermgmt_section/pwpermits/
applications.html) and send it to an area hydrologist, who reviews it and determines what permits, if any, are
needed. The hydrologist has 30 days to examine the application. If the proposal includes elements prohibited
by the State or aspects that could be improved upon, the hydrologist contacts the applicant to discuss them.
The local soil and water conservation district, Corps of Engineers, the local watershed district, the Department
of Natural Resources, the county, and the city or township also review the application. All agencies have 30
days to review the proposal, with the entire process usually taking 45 to 60 days, according to a state official.
If the applicant is dissatisfied with the decision, he or she may appeal it in a process that could eventually
result in a hearing presided over by an administrative law judge.

Oregon

Permits for docks are not required in Oregon, but the State’s “registration” process is not substantially
different than other states’ permit requirements. Property owners must notify the State 90 days before

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building a dock or changing its location by completing a registration form that shows the dock’s specific
location and the name, address, and telephone number of any landowners within 200 feet of the dock. The
property owner also must contact adjacent property owners to determine if they have concerns about the
proposed dock, either generally or as an interference to the public’s use of the water for fishing, commerce,
and navigation.

The Oregon Department of State Lands then must make a determination that the dock does not
unreasonably interfere with the public’s rights, and that it complies with applicable local, state, and federal
laws, including local comprehensive zoning requirements, and with the statutory size limitations.

The registration must be renewed after five years. The State mails a renewal form to registered dock owners
at least 90 days prior to the expiration date of their registrations, and property owners are required to notify
the State of significant changes, such as a change in the dock’s location or sale of the property.

If a registration is denied, the property owner can appeal to the Director of the Department of State Lands
within 30 days and a decision is made within 60 days. From there, the applicant may appeal to a
facilitator/mediator at the State’s expense, and then to a hearing officer.

Washington

Washington’s Governor’s Office of Regulatory Assistance helps prospective dock builders navigate the
possibly extensive permitting requirements (depending on the project), which begin with completing a State
Environmental     Policy    Act   Checklist    and    a   draft   Joint   Aquatic   Resources   Application    Form
(http://www.ecy.wa.gov/programs/sea/sea-reg.htm). Collecting the information specified on the checklist
and form helps applicants determine what permits they will need and what conditions must be met. The
Office of Regulatory Assistance provides regional contact information and technical staff in an information
center to help facilitate the process.

The Office of Regulatory Assistance notes generally that property owners may install recreational docks
without charge as long as they meet certain basic requirements (property is adjacent to water, dock does not
moor more than four pleasure craft and is not used for mooring boat houses, etc.) and conform to local
Shoreline Master Programs and local ordinances.

As an example of a Shoreline Master Program, the City of Sammamish’s program has provisions addressing
cumulative impacts, ecology, vegetation, and a comparison study of what different jurisdictions allow for
docks, including height, length, and overwater coverage (http://www.ci.sammamish.wa.us/departments/
communitydevelopment/smp/Default.aspx). To illustrate the complexity of the master programs, the City of
Sammamish’s cumulative impacts analysis section alone is over 50 pages long with sub-sections on potential
concerns related to cumulative use (including surface water flow, water quality, habitat, and “processes
affected by private and public recreational uses”), the general shoreline conditions of each body of water,
trends in permitting and foreseeable future development, and assessment of the existing program’s
effectiveness.




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Wisconsin

The majority of private, noncommercial docks do not require permits. Even if the dock does meet the size
requirements for the exemption, however, a permit may still be required if it interferes with public rights in
navigable waters or the rights of other waterfront property owners. A permit also may be required if the dock
does not allow free movement of water or causes formation of land on the bed of the waterway. State
officials said they do a lot of work with people who want to build a dock to help them qualify for the
exemption.

Property owners who are not sure whether their project qualifies for the exemption can request an
“Exemption Determination” from the State. If a permit is required, the application includes proof of property
ownership, photographs of the area, a location sketch and plan drawings, a narrative description of the
project, and site maps.


Innovative and Best Management Practices
Innovative Practices

Practices that stood out among the others addressed both the permitting process and problems that result
from docks.

In terms of efficiency in permitting, two states among the jurisdictions studied have worked with the Corps of
Engineers to minimize the number of needed permits and prevent duplication.

Michigan is one of only two states in the country, according to Michigan officials, where one form is used for
both the State permit and the Corps of Engineers permit for docks on inland waters. This works well for
citizens because the streamlined process generally takes less than 60 days.

Minnesota and the Corps of Engineers have created a general permit that states a separate Corps permit is
not necessary if the structure satisfies state standards. The Corps then issues a letter of permission to the
applicant. While the Corps does weigh in on some projects, this general permit works for the majority largely
because Minnesota standards are stricter than some federal ones, such as those in the Wetlands Conservation
Act, according to the Department of Natural Resources.

In Oregon, registration fees for docks are used to counter some of the consequences of shoreline structures.
Oregon officials said most of the registration fees go to fund the State’s removal and fill conservation
program that is operated in conjunction with the Corps of Engineers.

A couple of jurisdictions have come up with less commonly used methods to limit the negative consequences
of docks. British Columbia, for instance, is promoting group moorages or marinas in areas with sensitive
habitat. This is intended to minimize environmental effects of docks, but raises some complications with land
ownership and easements, provincial officials said. Where to locate the dock becomes an issue because
moorage facilities typically increase property values. In addition, easements must be established so that other
property owners can access the dock. That can become complicated when consent for access expires or
when property changes hands.


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Minnesota is proposing a numerical limit to the spread of a single dock along a shoreline to minimize the
sprawl of individual structures. Under its proposal, Minnesota would allow each riparian lot up to 40 feet of
structure along the shoreline without a permit. Structures exceeding 40 feet in length would require a permit.
Currently, docks can be no more than 8 feet wide, but they can have many fingers and an L piece can extend
indefinitely, basically blocking off a shoreline and creating a private area behind the dock. “In most of the
state, this is not a problem, but it only takes one or two on a lake to get a lot of residents riled up,” one
official said.

Best Management Practices

Only one of the six jurisdictions studied, British Columbia, uses Best Management Practices, while the five
states examined did not use such terminology at the state level.

In Minnesota, for instance, the Department of Natural Resources commissioner requested that the agency not
use the term “Best Management Practices” because of the difficulty in defining what is “best,” according to
DNR officials. Such standards would need to go through a public hearing process. “One way to keep out of
lawsuits is to avoid so-called ‘Best Management Practices.’ They were seen as too subjective,” a DNR manager
said.

Michigan does not use “Best Management Practices” as part of its dock management terminology. State
officials said they associate the label with environmental issues and that it may show up in local management
plans, but it’s a little too vague for what they see as their role in managing small, noncommercial docks.

Oregon also does not use the term, although state officials weren’t sure if the local jurisdictions did in their
regulation efforts that were more focused on specific waterways and environmental and biological concerns.

Because most of the meaningful regulation of docks in Washington is done through required Shoreline
Master Plans, Best Management Practices may be applied by local jurisdictions, but it’s not a term used at the
state level.

Wisconsin state officials also said guidance documents such as lists of Best Management Practices would be
more likely to be used at the local level. Their goal at the state level has been to be as clear as possible in the
statute and agency documents and anything in the form of guidance or suggestions for best practices may
conflict with that approach.

The only jurisdiction where the term was applied was British Columbia. In fact, the B.C. Ministry of
Agriculture and Lands does not distinguish between requirements and Best Management Practices, and refers
to them as one and the same in documents, such as Designing Your Dock or Boat Launch and the Crown
Land Use Operational Policy: Private Moorage. Local jurisdictions also sometimes have their own Best
Management Practices, as does the Ministry of Environment.


Management Strengths and Successes
Officials from several of the jurisdictions studied cited simplicity or efficiency as strengths of their dock
management programs. Other strengths noted included tailoring standards to the needs of specific locations,

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maintaining locally based staff who understand their specific areas well, and working with the public to
minimize conflicts. Below is a summary of program strengths and successes that emerged from interviews
with regulators in the six jurisdictions.

British Columbia

A major strength of general permissions for private docks in British Columbia is efficiency, according to
provincial officials, because the province receives a large number of dock applications and does not receive
rent for these. The general permission system is “very expedient,” one official said, because it allows a large
number of property owners to build minor structures without a lengthy permitting process.

Since 2008, permissions for private moorage have been issued in perpetuity, which eventually will reduce
work for officials administering them, according to Integrated Land Management Bureau staff. Previously,
those permissions expired after 10 years, contributing to the staff’s already sizeable workload.

Michigan

Michigan officials said the strength of their system is its simplicity. From the public’s perspective, the
existence of an exemption for seasonal docks also is a strength because most property owners just install
seasonal docks (although officials suspected that many of them weren’t removed in the off-season) and don’t
have any permit requirements at all. The relationship between state officials and agencies and the public is
good, and relatively little contention has developed over property owners’ rights and the State’s regulation of
docks to protect public use.

Minnesota

The greatest strength of the Minnesota dock management system, according to state officials, is that
regulations are consistent statewide and at the same time, the State has a regional system for staffing, with
hydrologists on the county level. “We have local contacts who are living in the area and know people and
know the mindset,” one Minnesota Department of Natural Resources official said.

Making the laws and rules clear and simple is another strength, officials said. “Our rules are just two pages
long. We try to keep rules as simple as possible, so people have a shot at understanding what they have to
do. We want them to be compliant, and we want it to be easy for them to be compliant,” one Minnesota
DNR official said.

A respect for property rights and due process keeps the State out of courts, dock permitting officials said.
Keeping the public involved in all changes has been key to avoiding lawsuits. For instance, last year the State
created an advisory group with “all the interested parties we could think of” to provide feedback on
proposed regulatory changes.

Oregon

According to Oregon officials, its system’s primary strength is that it gives them a good “nose count” of
what’s occupying state land and it gives landowners a bankable public document. Compared with its



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previous approach, which was simply to exempt small noncommercial docks, Oregon’s registration
requirement gives the State a lot more information.

Washington

One strength of Washington’s system, which regulates docks largely through more than 260 local Shoreline
Management Plans, is that it allows for very specific regulations according to the specific concerns at lakes,
rivers, and coastal areas. State officials said that they work hard to help the public navigate the system and a
joint application form is used for state agencies and the Corps of Engineers (although the Corps itself issues
permits when it has jurisdiction, rather than ceding that authority to the states as it does in some places).

Wisconsin

Wisconsin officials said their philosophical approach of working with the public as much as possible has been
effective in minimizing conflicts. Quite often, they said, landowners are willing to make adjustments to their
plans as necessary to qualify for the broad exemption. They are required by law to negotiate before issuing
decisions.


Management Problems and Failures
A slow and cumbersome permitting process, problems arising from deregulation, and a costly and time-
consuming appeals process were among the problems regulators discussed related to their private dock
management programs. A lack of enforcement was an issue in several jurisdictions. Below are some of the
problems officials face while implementing their dock management standards.

British Columbia

A major problem with the private moorage policy in British Columbia is the lengthy approval process, which
causes significant delays in dock construction. Officials spend a considerable amount of time adjudicating
moorage applications and dealing with the consultations between local, provincial, and federal agencies, as
well as First Nations. Dock applications can sometimes await approval for a year or more, because of this
lengthy process, provincial regulators said. “There are contractors that specialize in constructing docks. We
are constantly getting inundated with requests to give them permits,” a B.C. official said. “They are forced to
lay staff off because we can’t push it through fast enough, or they’re going ahead without permission.”

This problem is tied to what provincial officials cited as the system’s biggest weakness: Tenures are now rent-
free. The province has a considerable amount of coastline and shoreline and no longer receives rental income
to administer its private moorage program. Until 2008, dock owners paid rent. This might amount to $400 to
$600 for a single dock for 10 years, depending on the size of the structure, but officials pointed out that
some of these docks cost $30,000 to $100,000 to build. “We’d like to go back to that system, but the
political will is not there,” one official said. Some politicians did not think rent was appropriate for small
temporary docks in lakes and rivers, but officials said, some of the docks they deal with are permanent
structures that extend some 50 meters (164 feet) into the ocean.




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A shortage of enforcement resources also is a problem in British Columbia. While the general permission
system is highly efficient, little enforcement is available to make sure dock owners are compliant with
provincial standards. “We don’t know where all these docks are and we’re going by someone’s word,” an
official said. Also, the enforcement staff is too small for extensive monitoring of shoreline structures. Only one
enforcement officer oversees all of Vancouver Island and the central coast; likewise, only one officer enforces
standards for the southern interior of the province, according to regulators in both regions. Again, the fact
that docks are rent-free compounds this situation, officials said. With scant money to cover the cost of
moorage management programs, little incentive exists to pursue violators.

Michigan

Michigan state officials cited the lack of enforcement for the removal of seasonal docks as a weakness. They
also said there were some potential issues with vague definitions and subjective determinations. Budget
pressures have largely ended the site visits that used to be part of the permit process, creating more
uncertainty about what’s actually taking place on the thousands of state-water lakes and rivers, but state
officials did not believe that was a major concern.

Minnesota

Recent problems with the system is one of the reasons Minnesota is revising its rules for structures in public
waters. In 2002, concentrated mooring areas, which have more than six spaces, were deregulated. Abuses
occurred and one in particular instigated a revision of the rules. “On one lake, someone built a monstrous
permanent dock that goes out nearly 300 feet, and they didn’t need a permit. Other residents were upset
about it,” a state official said. “That was a mistake.”

The State deregulated moorage facilities because officials thought local governments would take control of
docks through zoning. Instead, the State discovered that local governments did not want that authority,
according to Minnesota Department of Natural Resources staff. While local governments had the option to
develop their own comprehensive plans to manage shorelines, they chose not to. As a result, docks in
Minnesota are managed on a dock-by-dock basis, with the Minnesota Department of Natural Resources as
the lead agency.

Enforcement also is one of the weaknesses of the Minnesota system, according to state officials. A lack of
financial resources for enforcement officers results in little monitoring for violations and a reliance on word of
mouth to catch violators. In addition, enforcing structure violations is not a state priority.

Oregon

The weakness of Oregon’s system is that it “takes an awful lot of effort,” according to state officials. Another
problem, though perhaps not a weakness of the system itself, is that the public doesn’t understand why they
have to pay a fee and where the money goes. Contested hearings, which officials estimated occurred about
once every six months, are expensive and time consuming.




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Washington

As with strengths, generalizing about Washington’s system’s weaknesses is difficult because local jurisdictions
are the primary regulators of dock construction. One weakness of this approach might be the inverse of its
strength: Although regulations can be very specific to the concerns of different waterways, Washington lacks
consistent regulations statewide. Washington officials did not think this was a particularly important concern,
however, since most dock owners would only be building a dock in a certain place and wouldn’t necessarily
know or care whether the same requirements would apply on a different body of water.

Wisconsin

Wisconsin officials cited a grandfather provision in their state law that handcuffed them from looking at
habitat issues for certain state waters. The original law exempted a broad category of docks without specific
size requirements and then when specific requirements were legislated, the size restrictions on docks that
were eligible to be grandfathered were very generous.

State officials also said that their exemption system for individual docks was a weakness in that it did not
allow them to regulate for cumulative effects. Local jurisdictions could fill that role under the state statute, but
generally have not.


Enforcement
In all of the five states and one province examined, enforcement of private dock standards tends to be light,
largely due to a lack or resources. Enforcement officers often have large areas to monitor and rely on the
public to notify them of violations.

British Columbia

When dock violations are discovered in British Columbia, letters are sent to the property owner and checkups
are conducted to ensure correction of the violations. If the dock owner will not comply with requirements,
the province has statutory authority to halt any construction and assume ownership of the structure, as well
as the responsibility to remove it. The dock owner can be charged for removal of the dock. Although in
theory, property owners can be charged fees for violations, these are calculated by multiplying a certain rate
times the rent for crown land. Rent for private moorage was discontinued, however, in 2008, so in practice,
no actual fees can be levied against violators, according to provincial officials. The greatest repercussions
occur when a structure damages fisheries, in which case the federal Department of Fisheries and Oceans
becomes involved, according to a provincial official. In such cases, DFO can pursue legal action to penalize
violators.

Michigan

The Michigan Department of Natural Resources and Environment has statutory authority to take civil action
to enforce compliance or restrain violations. The statute authorizes civil fines of up to $5,000 a day for
violations. Under criminal law, “minor offenses” are considered misdemeanors punishable by up to $500 for



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each violation; knowingly making false statements in a permit application is also a misdemeanor, but the fine
can be up to $10,000 per day for each day of the violation.

Michigan officials said there is little money in the budget for department officials to monitor compliance and
that complaints from the public are generally how violations come to their attention.

Minnesota

Minnesota has conservation officers, charged with enforcing dock standards, but limited resources prevent
them from looking for violations and enforcement action largely stems from citizen complaints, according to
state officials. Usually, an area hydrologist is the first to work with a dock owner to correct violations. If a
violation is egregious or a repeat offense, a conservation officer can issue a citation for a misdemeanor, which
can be punished by a $700 to $900 fine or a year in jail. “You would really have to work hard to get jail time.
There have only been two or three cases in the last 20 years where people go to jail,” one state official said.
“You have to have a unique personality to get in jail.”

Also, to cite someone, the officer must have the support of the county attorney, who is unlikely to prosecute
structure violations, state regulators said. Efforts have been made to institute an administrative penalty order,
allowing dock violations to be punished with a fine, but Department of Natural Resources officials said most
policy makers would probably frown on the State using that type of power on docks.

Oregon

Oregon officials try to work with people to get voluntary compliance if they learn about an unregistered
dock. If a dock owner still won’t register the dock, state statutes allow the State to treat it as trespassing and
impose civil penalties and take the other action allowed under trespass laws. State officials don’t actively look
for noncompliance. A vocal segment of the population complains about unregistered docks in public
hearings, but state officials said when they ask for details, they rarely get them or they turn out to be
unfounded complaints (either because the docks are registered or because the docks are old enough to be
grandfathered in under the law).

Washington

At the state level, no specific program exists for active investigation into whether the minimal state
requirements for recreational docks are being followed. Each agency would investigate complaints into their
own subject areas as complaints arose or concerns were raised from whatever source. Most enforcement
takes place at the local level and varies from jurisdiction to jurisdiction.

Wisconsin

Staff resources prevent any significant proactive enforcement efforts. Enforcement is primarily a matter of
looking at docks that come to their attention through complaints from neighboring landowners or state
officials on other types of business (fish and game regulation, or habitat protection efforts, for example).




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                               Interagency Permitting Procedures

Division of Authority and Responsibilities
British Columbia

Dock applications in British Columbia must be reviewed by a considerable number of agencies, often with
overlapping jurisdictions. The province owns the foreshore and the provincial Ministry of Agriculture and
Lands is the lead agency in the private dock application process. The Integrated Land Management Bureau,
part of the Ministry of Agriculture and Lands, deals with tenure and the size and scale of a dock proposal.
Local governments are responsible for enforcing zoning requirements and can implement a community plan.
The federal Department of Fisheries and Oceans handles fisheries and habitat issues, while the Coast Guard
addresses projects that might impede navigation. The Ministry of Environment also has its own set of
standards for works that fall under the Water Act. The province has an obligation to make sure the project
does not infringe on aboriginal rights, and any First Nation in the application area is consulted on the dock
proposal.

The regional executive director of the Integrated Land Management Bureau is responsible for designating
application-only areas, in which a specific permission for a dock is required. These areas usually have a higher
risk of effects or user conflicts. The ILMB works with local governments, provincial, federal resource agencies,
and First Nations to identify potential application-only areas.

Michigan

Michigan’s Department of Environmental Quality is the lead agency at the state level. Within the department,
the Land and Water Management Division reviews permits and assesses what permits are required depending
on the body of water, the type of construction, etc. The same permit application can be used to apply for a
Corps of Engineers’ permit when there is also federal jurisdiction under the Rivers and Harbor Act or Clean
Water Act.

The Land and Water Management Division guides landowners to local jurisdictions when additional permits
might be required at that level (soil erosion and sedimentation control permits are obtained from local
regulating authorities).

Minnesota

The Minnesota Department of Natural Resources is the lead agency on granting permission for a private
dock. The department’s area hydrologists are the point people for providing residents information on what
permits may be needed for a proposed dock. The state requires a permit for any alteration of “protected
waters and wetlands,” and the department’s Division of Ecological Services addresses issues related to aquatic
plants.

Minnesota cities, township, and counties have the authority to regulate docks through ordinances and
comprehensive plans, although most have chosen to leave most dock management to the state. The local

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watershed district may require a project permit, and the state advises applicants to contact the local soil and
water conservation district to ensure standards are met and appropriate agencies are contacted.

The Corps of Engineers is responsible for enforcing standards set by the Clean Water Act and the Rivers and
Harbors Act. It may grant a general permit or a letter of permission to a project, or an individual permit for
larger projects. Also, the U.S. Department of Agriculture Natural Resources Conservation Service or Farm
Service Agency addresses alterations, such as digging or filling, on highly erodable land and may be required
to issue a Highly Erodable Land or Wetland Certification for a project.

Oregon

Oregon’s Department of State Lands operates the State’s dock registration program. Before a registration will
be accepted by the department, a landowner must first present the registration application to the local
planning agency, which is sometimes at the city level and sometimes at the county level, for review and
concurrence. The local planning official must sign the registration application before the Department of State
Lands will consider it.

The Corps of Engineers has jurisdiction when either the Clean Water Act or Rivers and Harbors Act apply to
the body of water on which the dock is proposed to be built.

Washington

Washington advises prospective dock builders to first contact the Department of Natural Resources to
determine if the land they intend to use is state-owned and available for the proposed project. Usually, local
jurisdictions serve as lead for Washington’s State Environmental Policy Act (SEPA) requirements since
Washington requires all local jurisdictions with shoreline to have shoreline master plans. Before receiving state
and federal permits, an applicant must submit a completed SEPA application, including any shoreline permits
or other local permits.

Washington’s Governor’s Office of Regulatory Assistance helps guide prospective dock owners through any
additional state permitting requirements, as well as the typical federal permitting requirements, when
applicable. At the state level, permits may be required from the Department of Ecology, depending on what
permits are required from the Corps of Engineers. The Department of Fish and Wildlife must also review and
approve all structures proposed and activities conducted in the water. Area Habitat Biologists guide people
through the process of building during certain “work windows” and determining specific requirements for
different locations.

Wisconsin

Wisconsin’s Department of Natural Resources, Waterway Protection Section, takes the lead in regulating
docks. The Department has an Aquatic Habitat Protection Coordinator in each of five regions and Water
Management Specialists in Service Centers around the state to help people understand their water rights and
administer and enforce laws and regulations. The Bureau of Fisheries Management and Habitat Protection
(also within Wisconsin’s DNR) provides policy development and technical support for the field staff.




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The Army Corps of Engineers may require permits for docks in federal navigable waters or for any dock
construction that involves dredging or filling in wetlands. Local governments may also use shoreline zoning
to control development along lake shores and streams, although state officials reported that few local
jurisdictions had assumed that role.


Coordination Between Agencies
British Columbia

The high number of agencies weighing in on the dock application process in British Columbia makes it a slow
one, with some projects taking a year or more for approval. Despite the lengthy process, provincial officials
said they have good relationships with the other agencies, who work well together on addressing concerns
with a dock application. Agencies often have their own sets of best management practices, which may vary
slightly. If any of the authorities reviewing a dock proposal have problems with it, the province works with
that entity in an effort to resolve the issue. For instance, in one case a First Nation had concerns about the
location of proposed dock, and the province worked with it and the dock owner to move the project to a
different area.

Michigan

Michigan has an arrangement with the U.S. Army Corps of Engineers that consolidates dock applications into
one Joint Public Application (JPA) that covers both state and Corps of Engineers permits. Michigan’s
Department of Environmental Quality, Land and Water Management Division, accepts the joint application
and shepherds it through the statewide permitting process, including helping landowners determine whether
additional local permits are required. Although the same JPA is used when the Corps of Engineers also has
jurisdiction under either the Rivers and Harbor Act (Section 10) or the Clean Water Act (Section 404), the
Corps itself reviews the application.

Michigan currently has a temporary general permit in place which eliminates landowners’ responsibility to
obtain a separate state permit if the Corps of Engineers has done an environmental review and authorization
similar to what the state would do.

Minnesota

Coordination between agencies over dock construction in Minnesota is largely simplified by the fact that the
Minnesota Department of Natural Resources is the lead agency and many of the other government entities
that weigh in on dock standards are within DNR. For instance, DNR includes a Division of Waters and a
Division of Fish and Wildlife, so environmental reviews largely take place within a single department.

On the federal level, Minnesota worked with the U.S. Army Corps of Engineers to develop a general permit,
allowing a project to move ahead without a separate Corps permit in many cases, if the proposed dock meets
the state’s requirements. The Corps does issue a letter of permission to the applicant. This system works
because Minnesota’s environmental laws and standards tend to be more stringent than federal ones, DNR
officials said.


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On the local level, governments have the option to develop a comprehensive plan to manage shorelines, but
most have chosen to not exercise that authority. Only a few counties have established lake associations, such
as Lake Minnetonka Conservation District. This local body sets standards for docks, reviews license application
requests, and considers lake-related studies and other lake-management issues for the popular Lake
Minnetonka.

Oregon

At the state level, only one agency is involved with Oregon’s dock registration system, the Department of
State Lands. The registration application notifies property owners of their responsibility to get approval for
their proposed dock at the local level and will not register the dock until local authorities sign the registration
application, attesting that either local permits have been obtained or that none are necessary.

Washington

To streamline a complicated environmental permitting process, federal, state, and local regulatory agencies in
Washington created a Joint Aquatic Resources Permit Application (JARPA) that can be used to apply for more
than one permit at the same time. It can be used for Corps of Engineers permits, state permits from the
Departments of Ecology, Fish and Wildlife, and Natural Resources, and a variety of local permits. Additional
permit applications may also be required, however, depending on the project and the local regulations that
state law requires.

Wisconsin

Wisconsin’s broad exemption from permitting requirements of most small noncommercial docks means
there’s little for agencies to coordinate. State officials report that they frequently work with landowners to
modify their plans “to avoid harm to public rights” and also to get within the exemption criteria.

Wisconsin has no formal agreements with the Corps of Engineers. State officials are careful to notify
landowners that there may also be local dock ordinances to consider including size limits, setback
requirements, and limits on the number of boats, but they simply advise landowners to check with their local
jurisdictions to find out more.




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                                                                             Effects of Docks

Scientists and managing agencies have invested considerable time and energy in examining the effects of
docks, with the majority of the inquiry focusing on environmental consequences. The McDowell Group team
looked at dock-related studies not only in the six jurisdictions examined in the first part of this report, but also
from elsewhere in the U.S. and Canada, so as to provide a comprehensive a review of dock effects. Some of
the studies and reports discussed below were conducted for states, such as Georgia, New Jersey, and South
Carolina, or for local governments seeking to base management decisions on science.


Environmental Effects
Scientists have examined various effects of docks, including those resulting from pile driving, leaching, and
different construction designs, as well as those related to vegetation growth, phytoplankton productivity,
habitat use, and predator-prey relationships. The two areas on which they have focused the most are the
effects of dock shading and contaminants from treated wood. Of these two, shading appears to have more
significant long-term consequences, with the potential for decreased food sources for fish and wildlife, habitat
fragmentation, and changes in refuge that offer advantages to predators and disadvantages to prey.

Research is sparse, however, in many dock-related areas, and scientists and managers acknowledge that
much more investigation of dock effects could be done. The consequences of individual docks appear to be
slight, but scientists have explored the cumulative effects of multiple structures very little. Experts do know
that the larger the dock, the greater the shading effects, and therefore limiting dock size is a basic part of
minimizing environmental consequences. “For example, a 100-meter-long dock will have roughly twice the
shading effects and contaminant leaching as a 50-meter-long dock,” researchers Sanger and Holland wrote in
a 2002 report on South Carolina estuaries. “Therefore, it is reasonable for SCDHEC-OCRM (South Carolina
Department of Health and Environmental Control, Ocean and Coastal Resource Management) to limit the
length of docks in South Carolina.”

Effects on Shoreline and Sediments

Contaminants have been the central focus of study for dock effects on sediments, with scientists conducting
little research on how other aspects of docks have affected soils and shorelines. A few studies have been
completed on piers altering currents and affecting flow rates, potentially resulting in erosion. But these
studies generally were conducted on open ocean, rather than bays, and focused on large piers (625 to 2,500
feet in length), rather than on private residential docks.

CONTAMINANTS

Chromated copper arsenate (CCA) has been a common preservative used in pressure-treated wood and has
been the focus of a number of studies that looked at the effects of leaching on surrounding sediments and
organisms. CCA has been used since the 1930s, but in 2004, the U.S. Environmental Protection Agency
began limiting its use, and wood used in residential freshwater docks are no longer treated with CCA. It
continues to be used on wood in marine waters.

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Several studies have shown that CCA leaches into the surrounding environment at low to modest rates when
exposed to rain or seawater (Fahlstrom et al, 1967; Brooks, 1996; Weis and Weis 1996). Researchers have
found that most leaching occurs shortly after installation of the treated wood. According to two studies
(Cooper, 1990; Brooks, 1996), most of the contaminants leach out of the wood in its first five or six days of
immersion, with leaching decreasing 50 percent each day after immersion. Therefore 99 percent of the
leaching takes place in the first 90 days following construction.

Fineness of the surrounding sediment is one factor in how far the leaching extends. Luoma and Davis (1983)
found that copper, chromium, and arsenic from treated wood leaches more easily into fine silts and clays
than sand. Weis et al (1992, 1998) found that the leaching extended about 1 meter (3.3 feet) from
bulkheads at most sites, but to about 10 meters (33 feet) in locations with fine-grained sediment.

Low pH and high salinity result in the highest leaching rates for CCA, according to several studies (Warner
and Solomon, 1990; Brooks, 1994; Weis and Weis, 1996). Copper leaches faster than chromium or arsenic in
marine environments and is of the greatest concern (Brooks 1996).

The size of a water body and its flushing capacity also determines the extent of effects of leaching, according
to Sanger and Holland (2002) in their study in South Carolina. At the time of the report, South Carolina had
proposed limits on dock construction in the upper sections of creeks and the researchers commented that
such limits are reasonable and supported by science. “Large creeks with expansive salt marshes clearly have
greater capacity to dilute contaminants than do small creaks with low volume and limited salt marsh habitat.
As a result, larger creeks have the capacity to support higher densities of docks with less ecological impact,”
Sanger and Holland wrote.

In toxicity tests by the South Carolina Estuarine and Coastal Assessment Program, sediments in tidal creeks
with docks were not more toxic than sediments in areas without docks, according to Sanger and Holland
(2002). They concluded leaching from treated wood in docks was not significantly affecting South Carolina
estuaries and tidal creeks because most of the leaching occurs early in the life of the dock, the affected area
and number of organisms are small, and South Carolina’s tides allowed for a high level of flushing that
curtails the effects of leaching.

SHADING

Most of the research on dock shading has focused on its effects on plants and aquatic life, but studies by
Burdick and Short (1999) and Kearney et al. (1983) note that the loss of vegetation from shading, which is
well-documented, also alters sediments along shorelines.

“Changes in vegetation density and hardiness may lead to increasing sediment erosion and resuspension, and
increased undercutting of the marsh shoreline near the dock because robust healthy marsh and seagrass
vegetation is no longer present to hold the sediments in place,” Burdick and Short stated. Likewise, the
Kearney study documented increased soil erosion beneath docks in Connecticut due to the loss of smooth
cordgrass or saltmarsh cordgrass (Spartina alterniflora ).




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Effects on Vegetation
CONSTRUCTION

The effects of the construction process itself largely appear to be short-term, according to research, with
plants being damaged or destroyed around a dock as people and equipment move over them or uproot
them while building the dock.

The most problematic aspect of dock construction appears to be the practice of “jetting,” which involves
using high-pressure water hoses to install pilings, disturbing plants and sediments around the pilings. Shaefer
and Robinson (2001) examined the regrowth of the seagrass Halodule wrightii under docks in St. Andrew Bay,
Florida, and found that the seagrass did not regrow in a 6- to 7-foot-diameter area around pilings for as much
as 10 years when high-pressure jetting was used to install the pilings. In contrast, they found that low-
pressure jetting resulted in regrowth of grasses and little or no sand deposition around the pilings. They also
documented bare areas from 35 to 78 inches in diameter around the pilings, even around older pilings,
indicating the pilings themselves may affect regrowth.

Sanger and Holland (2002) reported damage to vegetation next to and under docks in South Carolina salt
marshes as a result of construction workers using the area and placing lumber and equipment in it. But within
one to two years after construction, the damaged area had recovered. “The effect of dock construction
activities on salt marsh habitat is short-term and probably does not need to be mitigated,” Sanger and
Holland wrote. They did, however, advise the state to hold workshops with builders to identify ways to
minimize damage and speed up recovery of vegetation. The two researchers also observed that dock owners
placed wood, riprap, shells, and other materials under their docks, preventing the regrowth of vegetation.
“Dock owners should be encouraged to remove unnatural materials from the area under their docks,” they
said.

Some research indicates the presence of pilings may reduce the chances of grasses and other plants growing
in again after docks are built. After the pilings are in place, changes in current, sediment deposition,
attraction of bioturbators (generally worms or crustaceans that disturb the soil with burrowing, tube-building,
or feeding), and leaching from treated wood may be responsible for changes in how seagrasses grow around
pilings, according to Beal, Schmit, and Williams (1999).

SHADING

Researchers have given considerable attention to the consequences of shading of docks, and studies
repeatedly show dock shading can negatively affect plant growth, particularly when docks are heavily
concentrated in areas.

Reduction of Plant Growth

Plants need 12 to 25 percent of ambient light to sustain themselves (Kenworthy and Haunert, 1991) and the
effect of docks on surrounding plant life correlates with the width, height, and length of the dock.

Burdick and Short (1999) documented the effects of docks on eelgrass beds in coastal Massachusetts. Eelgrass
is significant because it creates critical habitat for aquatic animals, provides a nursery for fish and shellfish,

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stabilizes bottom sediments, and forms the basis of a marine food web. The researchers found that eelgrass
under and adjacent to docks had lower shoot density and depressed canopy structure, with severe impacts
contributing to large-scale declines in estuaries in Waquoit Bay.

Another study (Garrison et al, 2005) examined the effects of pier shading on two lakes in southeast
Wisconsin. This study found an almost 10-fold decrease in light under piers. Scientists found that the median
biomass of aquatic plants under piers was 5 grams, compared with 107 grams in control sites without piers.
Decks reduced plant growth more than linear piers because of their size and the corresponding reduction in
light.

Studies on the effects of dock shading on smooth cordgrass (Spartina alterniflora ) have documented
significant decreases in stem density. An evaluation of South Carolina coast marsh grasses (Sanger, Holland,
and Gainey, 2004) found that stem density of smooth cordgrass declined by 71 percent due to dock shading.
Alexander and Robinson (2004) stated that average stem density of smooth cordgrass was 56 percent lower
underneath docks, compared to stem density adjacent to docks. Docks did not significantly affect plant
height. The same researchers stated in a 2006 report for the Georgia Department of Natural Resources that
the decrease in stem density under docks resulted in a 21 to 37 percent drop in biomass and carbon
produced per square meter under a dock.

A 1999 study in Perdido Bay, Alabama, (Shaefer) found that shoot density of the seagrass Halodule wrightii
was 40 to 47 percent less and biomass was 30 to 33 percent less in areas shaded by docks than those in
unshaded areas. The effects of shading were most apparent between 10 a.m. and 3 p.m., and seagrass did
not grow under docks with light levels of less than 14 percent surface irradiance.

Extent of Areas Affected

A few scientists also have attempted to examine how much of the vegetation in a particular area has been
altered by docks.

Smith and Mezich concluded that single-family docks in the early 1990s had negatively affected up to 50
acres of seagrass beds in Palm Beach County, Florida, and that the shading from docks led to the loss of 2
percent of the seagrass in the area studied.

Sanger and Holland (2002) and Sanger, Holland, and Gainey (2004) said the effect of dock shading was small
when looking at the amount of marsh within specific tidal creeks (0.03 to 0.72 percent), in coastal counties at
a maximum dock length (0.01 to 0.98 percent), or statewide at a maximum dock length (0.01 to 0.13
percent). But when considering the roughly 7,000 docks permitted for construction South Carolina in the
previous 10 years, the loss of salt marsh totaled about 60 hectares. Under a projected total build-out scenario
in the creek systems, they calculated a loss of marsh grass by 0.18 to 5.45 percent.

Orientation

Research varies on whether the orientation of a dock makes a difference in light levels that affect plant
growth. Burdick and Short in their 1999 study in Massachusetts found that docks oriented north-south allow
more light to reach submerged aquatic plants and therefore more plant growth than docks oriented east-


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west. They have included dock orientation as one of three significant variables (the others being width and
height) in their tools for evaluating the effects of docks on surrounding plants.

Sanger and Holland (2002) found no difference in the growth of smooth cordgrass (Spartina alterniflora )
related to dock orientation after assessing the seagrass near 32 docks in the Charleston, South Carolina, area.
The docks in their study area varied in length, orientation, and age.

McGuire (1990) documented that geographical orientation did not significantly alter the magnitude of
shading effects on salt marsh vegetation. Sanger and Holland commented that the results of the McGuire
research might be related to the broad range of dock heights and widths included in that study.

While Smith and Mezich found a strong connection between the presence of docks and the loss of seagrass
in Palm Beach County, Florida, they also found that a north-south or east-west orientation did not make a
difference in how much vegetation around a dock was affected and in the distance from the dock to
unaffected seagrass beds. Nor did height, although the researchers thought this was because of the narrow
range of height in the docks included in the study.

One possibility may be that a dock’s geographic orientation plays a more important role in northern latitudes
than in southern ones. Burdick and Short also indicate that an east-west geographic orientation may be
compensated for with greater dock height, suggesting that varying heights of docks may alter the outcome
of studies that consider orientation.

Dock Surface

Studies also are mixed on whether dock effects can be minimized by adjusting dock surfaces to allow light to
reach seagrass and other aquatic plants, but the amount of research on this topic has been limited.

A study in the Puget Sound region of Washington (Fresh et al, 2001) examined whether inserting light-
permeable deck grating with the surface of a residential dock would prevent loss of eelgrass under and
around the float. Scientists found that grating up to half of the float was not enough to prevent a loss of
eelgrass.

However, a combination of grating up to 50 percent of the deck surface and orienting the dock in a north-
south direction or removing it seasonally could limit how much a dock affects eelgrass density. “We are
encouraged by the success of grating. Grating, especially when used in combination with other design
aspects (e.g., orientation), holds promise as a method that can be used to avoid impacts to seagrasses,” the
researchers said.

An unpublished study by marine biologist Deborah Shaefer indicated plank spacing is of limited value in
reducing negative effects of docks on plant life, according to the Army Corps Wetlands Research Program in
its June 1999 Technical Note. Similarly, the National Marine Fisheries Service indicated that spacing dock
planks an inch or two apart has little effect on shading impacts, especially in northern latitudes, according to
a personal communication by Michael Ludwig of NMFS in 2003.




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Effects on Aquatic Animals
CONSTRUCTION

Pile Driving

Most research related to dock construction has focused on its effects on vegetation, but one study (Feist et al,
1996) examined how pile driving affected juvenile chum and pink salmonids in Puget Sound. Researchers
found that the number of fish schools decreased by half on days piles were driven, compared to days they
were not. Juvenile pinks and chums did not alter their distance from shore or stop foraging when piles were
driven, though the number and distribution of fish changed significantly. The study team found that
salmonids were able to detect the sound of a drop-hammer pile from at least 600 meters and became
habituated to the sound, raising a concern that the sound may prevent fish from sensing an approaching
predator.

TYPES OF STRUCTURES

Natural Vs. Artificial Structures

A couple of studies examined whether and how salmon use docks and whether the presence of docks
adversely affects salmon populations. In one study, Tabor and Piaskowski (2002) looked at how juvenile
Chinook salmon use near-shore habitat in Lakes Washington and Sammamish and the Ship Canal/Lake Union
area. Researchers examined what types of habitat — including woody debris, overhead structures, and
vegetation — juvenile Chinook preferred during the day and night. They found that juvenile Chinook used
docks, other overhead structures, and overhanging vegetation during the day in February and March, but in
April and May, no Chinook were seen using overhead structures during the day. They also rarely used them
at night in any of these months. They found that juvenile salmon did not appear to use the near-shore areas
extensively during the day or night after mid-May. The researchers concluded that day and night habitats can
be significantly different and their work suggested that Chinook need a diverse shoreline, with open areas
and woody debris.

In an another study (2007), researcher D.W. Chapman was asked by the Douglas County (Washington)
Public Utility District to examine whether increasing the number of docks in Wells Dam pool would reduce
the number of juvenile summer/fall Chinook salmon. Chapman concluded that more docks in Wells Dam
pool would damage Chinook populations. He found that subyearling Chinook use the shallow, inshore areas
day and night from March and April, when they emerge as redds, until June, when they reach about 60 mm
(about 2.5 inches). In the early rearing period, the young salmon prefer overhanging vegetation and
Chapman said docks may serve as a surrogate for that. As the salmon grow older, the move into open water
or small woody debris and use cover less.

Chapman said that when groups of young Chinook encounter a dock, they tend to move into slightly deeper
water, either passing under the dock or swimming around the end of it. He did not know how docks affect
predators of Chinook. He did say that the greatest opportunity for predators eating Chinook occurs in late
April, May, and early June, when the salmon are small and the water near the shore warms. He also said



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docks probably increase the number of smallmouth bass that can live in Wells pool by providing cover,
temporary access to prey (such as juvenile Chinook), and isolation for nest sites.

In addition, research in Ontario indicates juvenile salmon and small fish may avoid developed shorelines that
have lost the diversity of habitat that provides them with protection from predators (Collins et al,1995).

Rock-Crib and Pile Structures

Several studies have examined how fish respond to two types of dock structures, those supported by piles
and those supported by rock cribs, timber frames filled with rocks. Lange (1999) did not find significant
negative effects of “temporary docks,” using piles, on the abundance of fish in Lake Simcoe in Ontario. This
and two other studies found that crib-supported docks increased fish abundance in some cases. Lange found
increased numbers of fish at the two largest scales (244 and 488 meters), but not at the smallest scale (122
meters). Brown (1998) found that forage fish of less than 100 millimeters increased in numbers around rock-
crib structures on exposed shorelines and areas where woody debris was removed. He speculated that fish
found refuge in the small spaces within the cribs. Similarly, Beauchamp et al (1994) documented an increase
of up to 10-fold in density of small fish, as well as greater diversity, around rock-crib structures on Lake Tahoe.
This study found no difference in density and diversity of fish in areas that had pile piers and those that did
not.

Floating Docks

A 2006 study (Alexander and Robinson) examined the effects of floating docks on benthic production in
coastal Georgia. This study focused on floating docks that rest on the bottom at low tide. The scientists found
that floating docks resulted in significant changes in benthic algal production, grain size, organic carbon, and
the distribution of bottom-dwelling macrofauna (animals that can be seen with the naked eye). The amount
of Chl a, a type of chlorophyll, dropped 57 to 73 percent underneath the docks studied. Grain size of
sediments was found to be significantly coarser under docks, with the effect on the benthic environment
greater where tidal velocities are stronger. Grain size is significant because a strong relationship exists
between it and the presence of organic carbon/nitrogen, with areas in which there is little fine-grained silt
also exhibiting low levels of carbon/nitrogen. This study found a significant decrease in macrofauna, which
were largely polychaete worms, underneath docks, but not a significant drop in meiofauna, minute animals
living in aquatic sediment. A related 2006 study by the same researchers found that dock walkways reduce
biomass and carbon input by 21 to 37 percent. That in combination with the 57 to 73 percent reduction
resulting from floating structures at the terminal end of the walkway led them to conclude that dock
walkways and adjacent floating structures need to be considered cumulatively.

SHADING

Some researchers have found a reduction in animal life under and around piers because of reduced light that
limits production of plants, including those at the microscopic level, and fragmentation of wildlife habitat.
This, however, is an area in which extensive research has not been conducted.

White (1975) compared the production of phytoplankton, upon which higher life forms feed, under
overwater structures and at open-water control sites in Lake Washington, Washington. Phytoplankton


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production in the top 60 centimeters of the water column was higher under the structures than in open
water, where light levels were more intense. But in deeper waters, higher levels of phytoplankton were
produced in the open waters than under the overwater structures. In the total water column, he found that
the reduced light from overwater structures led to a decrease in the phytoplankton production/biomass
ratios.

Garrison et al (2005), whose study found an almost 10-fold decline in light under piers, documented fewer
marine organisms under piers. Macroinvertebrates (the most common of which, in these lakes, were snails
and scuds) decreased under piers, with a median of 23 found under docks, compared to 61 in the control
areas. Mean fish catch rates also were significantly lower under piers, with 11.2 fish caught per night
compared to 38.7 per night in the control sites.

Alexander and Robinson (2006) in their study for the Georgia Department of Natural Resources found that
besides a significant decline in stem density under piers, the number of aquatic animals, such as Penaeid
shrimp and finfish, also dropped.

Burdick and Short (1999) found that shading led to the reduction of eelgrass beds, which in turn can result in
fragmentation of habitat that wildlife use. If habitat becomes overly fragmented, wildlife can have increased
difficulty moving between areas of usable habitat.

CONTAMINANTS

A number of studies have examined how metals in wood preservatives, particularly chromated copper
arsenate (CCA), have affected organisms leaving near docks. They have found changes in diversity of species,
growth rates, and numbers of organisms on treated wood, but they also largely have found that the leaching
is not acutely toxic to aquatic animals. While copper and arsenic have been found to accumulate in the lower
levels of the food chain, they have not in its higher levels (Brooks, 1996; Weis and Weis, 1999). Brooks stated
that leached copper, chromium, and arsenic from treated wood structures may exceed federal and state
standards in the first several weeks after installation, but they are at levels that do not hurt most aquatic
organisms over the long term.

Weis and Weis (1996) found decreases in the richness of species, diversity, and biomass of organisms living
on treated wood. Barnacles and bryozoa (a type of sedentary aquatic invertebrate) grew more slowly on
treated wood than on untreated wood or plastic. They also found that metals in the treated wood
accumulated in nearby sediments and the organisms living in them. A smaller number of species lived in
these sediments, compared to those that were not adjacent to treated wood. Researchers tested amphipods,
a type of crustacean, and found they were not acutely toxic, but they did find sublethal effects on the
development of juvenile mysids, shrimplike creatures often referred to as opossum shrimps. The research
suggests that the amount and age of the treated wood, as well as amount of dilution by water movement,
determines the extent and severity of negative effects on the surrounding environment.

Wendt et al (1996) examined the effects of leaching from private residential docks in South Carolina tidal
creeks. This study team measured copper, chromium, arsenic, and polynuclear aromatic hydrocarbons in
sediments and naturally occurring oyster populations in creeks with a high number of docks and creeks with
no docks. Their research suggested wood preservatives in dock pilings in creeks with a moderate tidal range

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(5 to 6.6 feet) do not affect the short-term survival or growth of juvenile oysters. They also found no acutely
toxic effects on four common tidal creek species (mummichogs, Fundulus heteroclitus; mud snails, Ilyanassa
obsoleta ; juvenile red drum, Sciaenops ocellatus; and juvenile white shrimp, Penaeus setiferus).

Sanger and Holland in their 2002 study in South Carolina found that docks appeared to have minor effects
on the number and variety of prey species that live on creek bottoms and are indicators of the system’s
health. These species were as abundant in creeks with docks as they were those without them. A high
number of docks in creeks also did not seem to affect the numbers of juvenile fish and crustaceans. The
researchers said docks might have attracted some fish the way an artificial reef does. Sanger and Holland also
noted that a 1992 study (DiToro et al) showed that CCA leachates from docks tend to bind with acid volatile
sulfide in sediments, forming a pool that likely is not available to or toxic to organisms.

PREDATOR-PREY RELATIONSHIPS

Researchers have conducted studies on how shore zone structures alter predator-prey relationships. One of
the primary effects of shore zone structures is simplification of the shoreline. Complex habitat — including
root wads, tree branches, wood debris, shallow water, undercut banks, overhanging terrestrial plants, and
aquatic and emergent vegetation — is lost in varying degrees with the addition of human-made structures. A
number of studies (Bugert and Bjornn, 1991; Persson and Eklov, 1995; Werner and Hall, 1988; Tabor and
Wurtsbaugh, 1991; Wood and Hand, 1985) show that simplified habitat helps predators and hurts prey,
which have fewer places to take refuge. Hixon and Beets (1993) found that prey species were most numerous
on reefs where refuge holes closely matched their body size. Savino and Stein (1989) found that largemouth
bass ate all prey fish that left aquatic vegetation for open water.

Cumulative Effects

Assessing the cumulative ecological effects docks is a difficult and ongoing process and there is wide
consensus in the scientific and dock management community that more research is necessary. The effect of
one dock or 10 on a lake or river may be negligible, but at some point the cumulative effects become a
concern.

The City of Bainbridge Island commissioned a report on the cumulative impact development is having on
Blakely Harbor, which opened with the comment that “there is essentially no end to the assessment of
cumulative impacts” (Blakely Harbor Cumulative Impact Assessment, 2002).


One of the relevant conceptual questions is whether the cumulative effects of docks on an ecosystem are
additive or exponential. The author of the Blakely Harbor report commented that effects are often non-linear
and that there are thresholds beyond which the viability of individual or groups of species is threatened. “The
best available science regarding docks and other near-shore structures is a mix of empirical research and
inferential knowledge derived from modeling ecological linkages and impact pathways.” The report
highlighted the complexity of cumulative impacts and ultimately drew “no conclusions as to how many
docks are too many” while also noting that “we have learned from other experiences in the past that we
often grasp the magnitude of cumulative impacts only after those thresholds have been crossed.”



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A Connecticut official agreed that there is a need for a better scientific understanding of cumulative impacts
to supplement the evolving scientific knowledge base regarding direct impacts (Francis, 2007). The relevant
inquiries included: 1) how many docks are too many? and 2) How does pressure-treated lumber affect
sensitive areas cumulatively?


A recurring issue when regulating for cumulative effects is separating effects caused by dock construction
from those caused by general development (roads, housing, landscaping, etc.). In one study (Radomski and
Goeman, 2001), researchers used docks as an indicator of human development and found that developed
shoreline resulted in an average decline in vegetation coverage of 66 percent in Minnesota lakes. Human
development also caused a 20 to 28 percent decrease in emergent and floating-leaf coverage in the lakes
studied. Following the chain from plants to fish, the researchers found significant correlations between the
presence of emergent and floating-leaf plant species and the number and size of fish, including northern
pike, bluegill, and pumpkinseed.


Another study of docks and related development (Scheuerell and Schindler, 2004) concluded that
“anthropogenic modification of shorelines is significantly altering the spatial distribution of important aquatic
organisms.” Roughly translated, the study determined that shoreline development is having a significant
effect on plants and fish.


Researchers noted that separating the effects of docks and other shore structures on juvenile salmon into
discussions of the effects of individual structures in isolation may not yield the most appropriate conclusions
since development seldom occurs that way (Jennings et al, 1999). A review of the available scientific literature
up to that point done for the City of Bellevue Washington, found that “shoreline development in general
degrades aquatic communities” and that the examination of individual types of structures for their effects on
aquatic communities must be done with that in mind (Kahler et al, 2000). They also warned that “individual
structure types often occur together, confounding inference about their respective impacts” and that
“extrapolation of results among systems can be uncertain due to the physical and biological differences
between systems.”


A South Carolina State official and co-author of a study (Sanger and Holland, 2002) on the cumulative
impacts of docks concluded that in both large and small tidal creeks:


    •   CCA contaminants did not increase with increasing numbers of docks;
    •   Higher levels of PAHs were measured in creeks with suburban development and docks, but the higher
        levels were probably due to the suburban development and not the docks; and
    •   Suburban development may reduce fish and crustacean abundances, but dock structures may also
        provide structure that attracts them.

The study found overall that increasing dock numbers meant increasing chemical and biological effects, but
that “docks are not the problem, they are a symptom of the much bigger problem which is development of
the uplands.”




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A New York State coastal management program director advised that “It is not always necessary to conduct
detailed individual site-by-site assessments of docks or vessels using them. Likewise a detailed understanding
of the specific types and degrees of impacts associated with docks is not always prerequisite to making
regulatory decisions. A valid and much easier approach, based on generally understood resource and human
use values, is through the designation of areas that have special or high value wetland or other natural
resource or character values based on physical or other characteristics” (Steve Resler in Kelty and Bliven,
2003).


He also said that “it is extremely difficult if not impossible in many circumstances to quantify those effects
absolutely. However, we can and do develop standards and base regulatory and other decisions on our
general understandings in order to achieve legitimate governmental objectives, using a wide range of
available authorities.”

Secondary Effects from Boating

Most small docks are associated with boat traffic, which has raised questions about the secondary effects boat
traffic has on an area. The effects of boat traffic are increased considering that docks are in the shallowest
areas of the water and in locations where refueling takes place and engines are started and stopped.


Workshops and subsequent research on the impacts of boating (Crawford et al., 1998 and Kennish, 2002)
concluded that there was little quantitative data available that could be used for management decisions
although there was sufficient data to “substantiate the inference that recreational motor boat traffic is far
from a benign influence on aquatic and marine environments.”


To an uncertain degree, boating can affect submerged aquatic vegetation, cause contamination from fuel
discharges, erode shorelines and flats, disturb wildlife, and cause turbidity and re-suspension of bottom
sediments. As with other cumulative effects, researchers and managers concluded that more research is
needed. They also explained, though, that the research is expensive and time consuming and cautioned that
“it is difficult to ascribe generic impacts to an activity like boating that has such a wide range of variables.”


Boating was also mentioned in a study that “confirmed other work that found an adverse impact of shoreline
development upon fish communities” (Garrison et al., 2005). That study also noted that, “cumulatively, the
overall habitat effects of shading are just a portion of the total disturbances and fragmentation around piers”
and went on to identify boating as a factor.




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Other Effects
Effects on Navigation

Docks can effect navigation by extending into navigation channels or interfering with sight lines. In a
challenge by landowners of a dock permit denial, one management official testified that “a dock is an
obstruction. It is a physical obstruction to navigation over the water. The longer the dock gets, the more it
interferes with navigation. That is one of the reasons why they are regulated by the federal government and
by the state and many municipalities. They cause affects.” (Resler testifying in Stutchin v. Town of
Huntington).


Dock management to eliminate or at least minimize these impacts is not particularly controversial or difficult,
however, compared to other aspects of dock management. Laws and regulations at every level — federal,
state, and local — are clear in establishing that whatever rights property owners have to access public waters
by building docks is secondary to the public’s right to safely navigate on public waters.


Alaska is typical among states in making it clear that navigable waters are owned and protected by the state.
The Alaska Department of Natural Resources, Division of Mining, Land, and Water, notes on its web site, for
example, that free access and common use of public and navigable waters is protected by the Alaska
Constitution and that state ownership of the beds of navigable waters is an inherent attribute of state
sovereignty protected by the U.S. Constitution.


As with most regulations and agency decisions, the devil is in the details and the specific limits adopted by
states to prevent private docks from interfering with navigation are occasionally challenged, with landowners
arguing that their specific dock does not have any deleterious effect on navigation. But because the public’s
interest in safe navigation on public waters is so clearly recognized as taking precedence over a landowner’s
right to a certain type or size of dock, jurisdictions are given broad latitude and this is one of the less
complicated aspects of dock management.


In NOAA’s Best Management Practices materials, the agency notes that “the ability to safely navigate through
a waterway requires not only that a vessel have sufficient room to maneuver, but also have clear sightlines to
avoid collisions with other vessels, fishermen/shell fishermen, swimmers, or others using the waterway. The
construction of docks should not block passage or impede visibility to operate safely” (2005). Navigation
issues are different for small watercraft — kayaks and canoes, for example — since they deliberately stay out
of navigation channels used by larger boats and generally try to stay close to the shore.


When NOAA addressed navigation in a 2005 workshop, they noted that most jurisdictions prohibit docks
from extending into waterways by more than 20 to 30 percent of a waterway’s width. The Corps of
Engineers’ recommendation is for a 25 percent limitation from each bank so that a maximum of 50 percent
of the waterway’s width is affected by docks (Bliven & Sternack, 2005).




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Some jurisdictions require a minimum distance between docks to avoid navigation problems and others limit
“infilling” of new docks by regulations requiring a stricter review of proposed docks that would be built
between existing docks. This approach is noteworthy in that it provides a defensible approach for stricter
review as docks proliferate, which is often a challenging issue for dock managers who must justify why a
proposed dock that is similar to an existing one is not permitted.


It is also fairly common for jurisdictions to prohibit new docks from extending into waterways beyond
existing docks. This is recognized as a simple and common-sense approach to preventing a gradual
narrowing of waterways that would incrementally become a greater impediment to navigation.


Aside from actual physical obstruction, large or raised structures at the end of docks can be a concern
because of their effect on navigation sightlines. A water-level float at the end of a dock may not interfere with
sightlines but a dock of similar length with a large roofed structure at the end could. Many jurisdictions
prohibit large structures on the water end of docks or piers for other reasons related to habitat or
environmental concerns, but these types of restrictions can also be justified on certain waterways based on
navigation concerns.


Another reason why dock management is less complicated in terms of navigational issues is because the
Corps of Engineers is primarily responsible for navigational issues in Section 404 waters, those over which the
Corps has jurisdiction under the Federal Clean Water Act by virtue of being traditionally utilized to transport
interstate or foreign commerce.

Competing Uses and Effects on Access

In addition to the right to navigate on public waters, the public also has a right to lateral access along the
shores of public waters. As with navigation, this public right supersedes any private right to build a dock. That
means regulations aren’t required to weigh one set of interests against another. They can simply make it a
condition of dock building that the public’s access rights not be affected.


Signs indicating that the dock is private can be problematic since they deter the public from using the
shoreline in the vicinity. Private docks also must give way to the public’s right to use shoreline for shellfish
gathering, swimming, and other related activities. Some jurisdictions require dock builders to accommodate
these access rights by providing passage under, over, or around their dock and not doing anything to imply
that the shoreline itself is private (public ownership usually begins at the mean high-tide mark).

COMPETING USE CASE STUDY – SALT POND REGION, RHODE ISLAND

Rhode Island’s salt ponds are shallow, productive coastal lagoons separated from the ocean by spits. The salt
ponds were experiencing declines of formerly abundant fish and shellfish stocks, increases in polluted runoff,
and increases in conflicts among competing uses such as aquaculture, commercial and recreational fisheries,
and recreational boating.

Supported by a four-year inter-disciplinary research project and funded by a Sea Grant, Rhode Island officials
developed a special area management plan (SAMP). Among other things, the plan recommended rezoning

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to reduce the density of development and created harbor management plans to help municipalities organize
“mooring fields” and minimize other in-water use conflicts. The SAMP was first approved in 1984 and has
since been modified several times. A 2007 workshop sponsored by state and federal agencies identified one
of the key aspects of the SAMP as its separation of all land in the region into specific land-use classifications.
That addressed the competing uses concern by designating specific areas for certain types of uses and
prohibiting certain types of activities and development that would conflict with those uses.

Socioeconomic Effects

Dock building and use can have a variety of local socioeconomic effects. Docks can raise property values (or,
less likely, lower them), increase recreational activity and related spending, increase construction activity and
generate job growth, and increase public safety costs. It’s difficult to generalize, however, or predict what
effects docks will have on a local economy since so much depends on the local circumstances and increased
dock building is usually connected to the overall development of an area (i.e., new housing, roads, etc.).


Property values can increase by hundreds of thousands of dollars, according to one court assessor in South
Carolina, when property owners obtain permits to build a dock (Kelty, Bliven, 2003). On the other hand,
assessors in a New York community looked at the values of properties with and without docks and found no
significant difference.


A 2008 Corps of Engineers study (Kasul et al., 2008), found that private dock users of Lake Barkley located on
the border of Kentucky and Tennessee spent $7.3 million in trip-related expenditures and $1.3 million on
new boats and boat-related services within 30 miles of the lake. The report estimated that every 19 new
docks produced about 1,000 extra trips per year to the lake and generated an additional $261,000 in local
spending.


In other parts of the country, there have been concerns expressed about the effect of overbuilding on both
tourism and recreation opportunities for locals. A February 2010 article in the Star Tribune, a Minneapolis/St.
Paul newspaper, noted that more restrictive dock rules are being considered for Lake Minnetonka. A state
Department of Natural Resources official said “we can love our resources to death by over using them” and
also touched on the complicated socioeconomic factors when he said “Minnesota has an enormous amount
of economy dependent on tourism. If we let the visuals of the lakes go that is going to be a problem.” (Star
Tribune, February 13, 2010, Laurie Blake).




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                           Applying Science to Dock Regulation

While much of the dock-related research simply aims to determine whether and to what extent docks affect
the surrounding environment, some researchers and agency officials have worked to apply the available
science to parameters for dock construction.

Burdick and Short Guidelines for Dock Design

Two researchers in particular who have worked in this area are David Burdick and Frederick Short, both
professors of natural resources at the University of New Hampshire in Durham. In their study of eelgrass beds
in coastal Massachusetts, they examined ways to reduce the impacts of docks. They found docks supported
by piers resulted in fewer impacts to eelgrass than floating docks, and taller piers also reduced negative
impacts.

Burdick and Short’s research indicates that dock width, height, and orientation are particularly critical to a
dock’s impact on eelgrass, with height being the most important. They concluded that a north-south dock
orientation provides more light for plants under docks. That, however, is not always practical because docks
typically are built perpendicular to the shoreline. The researchers also found that floating docks often
completely eliminated seagrass and therefore should be avoided. They concluded that docks should be at
least 3 meters (almost 10 feet) in height above the bottom in areas with tidal ranges less than 1 meter (3.3
feet) so that light was adequate to sustain eelgrass under the structure.

                                     Recommendations for Dock Design,
                                      Developed by Burdick and Short


                         Width             Less than 2 meters (6.6 feet)
                         Height            At least 3 meters (10 feet) above the bottom
                         Orientation       Within 10 degrees of north-south
                        Source: WRP Technical Note VN-RS-3.1, June 1999

AVAILABLE TOOLS FOR DESIGNING LOW-IMPACT DOCKS

Burdick and Short have developed an interactive environmental CD-ROM with four major pathways allowing
someone to find out how docks of a particular design will affect eelgrass. Those who use the CD can select
dock orientation, fixed or floating dock style, height, and width and then see how these can be adjusted with
various outcomes for eelgrass. The program includes a description of limitations of the study and an
explanation of the extent of its application. The CD can be run on IBM-compatible PCs and Macintosh
systems. More information on the CD is available by emailing fred.short@unh.edu.

Another way to learn about a dock’s effects on eelgrass is through an online Dock Eelgrass Calculator 2009,
developed by Burdick, Short, and G.E. Moore. This tool, at , allows one to enter the dock’s height, width, and
compass bearing and receive a rating that indicates the quality of the eelgrass bed beneath the dock.




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Army Corps Recommendations for Pile Driving

Following research in St. Andrew Bay, Florida, the U.S. Army Corps of Engineers Wetlands Research Program
(WRP) in its June 1999 Technical Note provided recommendations on how to minimize the effects of pile
driving during dock construction. These recommendations were based on the findings that the use of high-
pressure jet pumps to install piles left bare clearings around pilings. Also, the accumulation of shells around
the base of pilings may prevent the regrowth of seagrasses around pilings. Below are the WRP
recommendations:

                  •    Drive piles with shallow-draft, barge-mounted equipment to minimize seagrass
                       disturbance.
                  •    Space all pilings as far apart as practical.
                  •    Space pilings in the portion of the dock over seagrasses 10 to 20 feet apart.

NOAA’s Best Management Practices for Docks

The National Oceanic and Atmospheric Administration’s National Centers for Coastal Ocean Science and the
Office of Ocean and Coastal Resource Management created a set of Best Management Practices for private
docks, based on scientific research related to their environmental effects. Below is a summary of key
recommendations, which are part of a workbook prepared by Steve Bliven of Bliven & Sternack. The
workbook (available at coastalmanagement.noaa.gov/initiatives/media/bmp.pdf) cites the scientific studies
upon which these recommendations are based.

MINIMIZING CONSTRUCTION IMPACTS

      • Keep construction equipment off the marsh face to the maximum extent possible.

      • Avoid jetting to install piles. If necessary, use low-pressure jetting techniques.

      • Use drop hammers or other driving techniques, rather than jetting.

MINIMIZING POLLUTANTS

      • Avoid the use of oil-based preservatives, such as creosote or pentachlorophenols. (Use of these
      treatments for residential docks is illegal in most states.)

      • Avoid using Chromated-Copper-Arsenate (CCA) treated materials in freshwater. Other
      treatments such as ACQ or CA/Wolmanized® are acceptable.

      • Avoid or limit the use of CCA-treated materials in marine waters with low levels of flushing. If
      CCA-treated materials are to be used, soak them in saline waters for 90 days before installation to allow
      leaching in a controlled setting. Dispose of the soaking waters so as to avoid environmental exposure.

      • Put a sleeve over the piling to prevent leaching.

      • Substitute other materials for wood surfaces frequently exposed to water. These could include
      recycled plastic or composite decking or plastic, metal, or concrete pilings.


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      • Replace treated wood with untreated wood. Some hardwoods (black walnut, white cedar or
      chestnut) are naturally resistant to decay and can withstand significant water exposure.

      • Do not use open-cell expanded polystyrene (EPS) (“beadboard” or Styrofoam™).

      • Do not use metal or plastic industrial drums, which are not designed for extended exposure to
      water.

      • Avoid the use of paints, stains, solvents, or soaps when maintaining walkways and floats over
      water or marshland.

MINIMIZING EFFECTS ON SEDIMENTS

      • Space pilings so that they do not present a barrier to water flow.

      • Prevent floats or boats from resting on the bottom at low tide.

MEETING LIGHT REQUIREMENTS FOR VEGETATION

      • Elevate docks. Allow one foot of elevation above mean high water for each foot of dock width for
      docks over tidelands or a minimum of five feet above mean high water.

      • Keep docks as narrow as possible — a maximum width of three to four feet to allow for foot traffic
      or passage of a dock cart. If only foot traffic is expected, the walkway may be even narrower.

      • Orient the dock and terminal platform as close as possible to north-south.

      • Avoid covering docks or piers with structures.

      • Use plank spacing or alternative decking materials to increase light transmission through the
      structure.

      • Limit the length of the dock to the minimum needed to reach water navigable at mean low water.

Northern Florida Panhandle Guidelines for Dock Design

The following guidelines were developed for the northern Florida panhandle for single-family residential
docks, according to the Corps Wetlands Research Program. An interagency team created these guidelines to
reduce the effects of docks on seagrasses, based on a literature review and limited field surveys in St. Andrew
and St. Joseph bays in Florida. The team included representatives of the U.S. Army Engineer District, the
National Marine Fisheries Service, the U.S. Fish and Wildlife Service, the Florida Department of Environmental
Protection, and the marine construction industry.




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                        Northern Florida Panhandle Private Dock Guidelines, 1999


Avoidance                          Aligned to minimize size of footprint over seagrass.
Orientation                        Dock portions over seagrass north-south as much as possible.
Height                             At least 5 feet above mean high water, measured from deck’s top surface.
Width                              No more than 4 feet.
Spacing of Pilings                 At least 10 feet apart. Installed to prevent large bare areas around pilings.
Spacing of Boards                  At least one-half inch.
Terminal Platforms                 If possible, placed in an area without seagrass.
 Plank Construction                No more than 120 square feet, not including catwalks.
 Grated Deck Construction          No more than 160 square feet, not including catwalks.
                                   Single, uncovered boat slip, 2-foot-wide catwalk, and 4-foot-wide walkway at
Boat Slips                         stern end of boat slip allowed. Walkways at least 5 feet above mean high
                                   water.
 Source: WRP Technical Note VN-RS-3.1, June 1999




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                                                     Supporting and Defending
                                                        Management Decisions

The principal argument that state and local officials charged with managing docks must be able to counter is
that their decisions are made arbitrarily and without sufficiently supporting justifications or rationales.
landowners have also asserted that rules and regulations were too vague and left too much discretion to
managers in making decisions about which docks will be permitted and which won’t (although those types
of challenges have often concerned decisions based on aesthetics which is an especially difficult area because
of its subjective nature).


Establishing specific science-based reasons for a dock length or width requirement — a limit on width of four
feet rather than six, for example — is difficult, if not impossible. Similarly, determining how many docks are
too many is recognized as a decision that can only be justified generally, given the local nature of
environmental issues.


“Government has considerable latitude in deciding the types and levels of allowable private access to and
uses of publicly owned lands, waters, and resources” (Resler, in Kelty and Bliven, 2003). “In almost all
jurisdictions, there is no legal riparian right to a dock of any size. Rather the community has the right to limit
the dock size — or prohibit it entirely — to protect environmental, visual, navigation, or access impacts”
(NOAA Best Management Practices, 2005).


“It has been our experience in New York that courts do not second-guess managers when their regulatory
standards and decisions are based on legitimate governmental authorities and objectives, are well
documented, and are based on logical, rational decision-making and understandings” (Resler in Kelty and
Bliven, 2003).

Case Study: Stutchin v. Town of Huntington

Burt and Cheryl Stutchin owned land on the southern shore of Lloyd Harbor, a body of water within the town
of Huntington, New York. The Stutchins owned a 36-foot motorboat and wanted to build a dock 115 feet
long on their waterfront property to allow them more convenient access to their boat. They obtained permits
from the State of New York and the Corps of Engineers, but neither of those permits precluded the need for
them to obtain a local permit. The village of Lloyd Harbor (within the town of Huntington) did not allow
docks longer than 75 feet and denied the Stutchins’ permit application. The Stutchins challenged the denial
and also the village’s 100-foot limitation of dock length.


Environmental experts hired by the Stutchins testified in the case before the United States District Court that
there was no empirical data to support the contention that docks longer than 75 feet adversely affect fish,
waterfowl, or vegetation, and asserted that “there is no rational basis for limiting the length of a dock per se
because it really does not relate to the environmental effect.” There was also expert testimony that the
proposed dock would not in any way interfere with navigation because it was between two longer docks.

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The village’s only witness in defending the regulations and decision to deny the permit was Steven Resler, a
supervisor in the New York State Department of State’s Division of Coastal Resources. Resler explained the
relationship between the New York State Coastal Management Program and the local program that created
regulations and denied the landowners’ permit. Under New York law, local governments were granted the
authority to regulate structures over water.


Resler testified about the specific environmental concerns at Lloyd Harbor and explained how a single
residential dock isn’t likely to have a significant impact, but several docks could. He testified that the size and
number of docks affect the socioeconomics of an area including property values and “ecological
relationships.”


According to Resler, after a long and deliberate study and analysis of Lloyd Harbor and the areas surrounding
it, its natural resource values, development patterns, and the desired uses of the area, the village determined
that a limit of 75 feet for docks was appropriate. Resler had served as an advisor to the village with regard to
the local rules and regulations they created for docks and had advised them that an outright ban on all docks
“would probably not withstand the constitutional challenge.” He said that there was no report or scientific
study that contains a specific recommendation as to the length or depth of private docks in Lloyd Harbor.


In its decision, the court addressed the landowners’ claim that the permit denial was a “taking” in violation of
the U.S. Constitution and reviewed the criteria for deciding those types of cases. They first identified the
rights of landowners in this context: “The owner of land abutting a navigable tidal waterway has the right to
use the area over the underwater land fronting on his property for access to navigable water, even if title to
the underwater land is held by another.” The court then reviewed established law, making it clear that “the
rights of riparian owners must yield to the State’s legitimate exercise of power.”


A critical factual point for the court was that the landowners had not been denied their riparian right of
access to the water but merely had their “mode of access” limited. The court found that the village’s
regulations and decision to deny the landowners’ permit could only be invalidated if it had acted “with no
legitimate reason for its decision.” The court said that was not the case and held that the limitation on dock
length served the rational purpose of preserving natural resources. The court emphasized Resler’s testimony
that “the longer the dock, the greater the effects. These effects are magnified exponentially.”

Case Study: Samson v. City of Bainbridge Island and State of Washington
Department of Ecology
Property owners Kelly and Sally Samson challenged a City of Bainbridge Island restriction on building docks
and piers in Blakely Harbor and argued that state law required the impacts of proposed private docks to be
addressed on a case-by-case basis. The blanket prohibition on dock building in the area was part of a
Shoreline Master Plan that the State of Washington requires local jurisdictions to implement (the specifics of
the plans are not dictated by the state).

The Hearing Board noted that the appeal would be denied — and the dock restrictions in the master plan
upheld — unless it determined that the city’s actions were “clearly erroneous in view of the entire record


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before the Board and in light of the goals and requirements” of the state Growth Management Act.
Deference was granted to the city and its efforts to plan for growth “provided that its policy choices are
consistent with the goals and requirements of the GMA.”

The property owners argued that the only lawful limitation on private single-use residential docks would be to
allow a discrete number of new docks in the harbor after assessing the docks’ impacts on a case-by-case basis.
They also argued that, in creating the regulations, the city relied on cumulative impact assessments and
“literature surveys” rather than specific information about Blakely Harbor.

The Hearing Board ruled in favor of the city and the restriction on dock building and said, among other
things, that its approach for assessing cumulative impact was acceptable (the city had used a computer
model that showed three development scenarios and concluded that continuing to allow development of
single-use private docks in the harbor would interfere with navigational access and recreational anchorage for
the general public). The Board found the city’s approach met the requirement that local jurisdictions use
“modern computer techniques” in developing their master programs.

The Board found that the harbor had a low level of dock development and high quality marine habitat which
justified the restriction on dock building. The long-standing practice in the area was to use mooring buoys in
lieu of private docks and the board said that “approval of one new private dock is likely to be followed by
many others.”




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    Phase Two: Cumulative and Secondary Impacts
            of Private Freshwater Docks in Alaska

Introduction
As noted in the Summary of Findings, the Division of Coastal and Ocean Management’s interest in how the
five selected states and British Columbia regulate private non-commercial docks is more than academic. The
primary objective of the project is to use the information gathered from the other jurisdictions and federal
management agencies such as NOAA and the Corps of Engineers to determine how Alaska’s current
approach to dock management can be improved.

Of particular interest are the cumulative and secondary impacts (CSIs) of private freshwater docks 3 on fish
populations and habitat, shorelines, navigation, water quality, and the public’s ability to access and use state
waters. As discussed in the section on cumulative impacts (pages 43-45), cumulative and secondary impacts
of docks are difficult to measure with precision and, consequently, present special challenges for dock
regulators.

The initial step in this second phase of the project was to review Alaska State government, federal agency,
and academic literature most relevant to the issue of cumulative and secondary impacts of private freshwater
docks (none of the Alaska literature on CSIs was specifically focused on docks, but the broader discussion of
CSIs was useful). The next step was to interview staff members from federal, state, and local agencies that
currently authorize private freshwater docks in Alaska or who have special insight into cumulative and
secondary impacts generally or dock management specifically (in addition to regulators, dock construction
companies and nonprofit advocacy groups were interviewed).


Summary of Literature Review
The following themes emerged from the literature review:

    •    Alaska’s status as a young, geographically large, and largely undeveloped state creates opportunities
         for addressing CSIs before they occur, especially through land use planning. It is difficult and
         unpopular to restrict a use that has already become established.

    •    There are four main opportunities for considering CSIs and all should be used to at least some
         degree:

              1. During land use planning efforts

              2. During project reviews



3The focus here is on docks built and maintained for the adjacent upland owners’ non-commercial use, but to the extent small-scale
commercial use by the upland owners would also be allowed by the existing or prospective permitting regimes, those docks are also part
of the discussion.

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             3. Through monitoring programs

             4. Through special research projects

    •   Regulating for CSIs is complicated and by necessity requires subjective determinations and judgment
        calls. Science can help, but it would not remove all uncertainties even if there were dramatically more
        resources devoted to studies and research.

    •   More information is not necessarily better. Decision makers often have all the information they need
        and excessive time is spent trying to refine and develop better and more perfect information about
        impacts.

    •   Revisions to statutes and regulations may not be necessary; regulators have most of what they need
        in terms of authority and direction. It is at the operational level – in implementation of existing
        authority and the daily decisions regulators make – where the most productive changes could be
        made.

    •   CSIs are a political issue, in addition to being a statutory and regulatory issue. Strongly held
        philosophical views about landowner rights complicate enforcement efforts.

    •   Effectively regulating for CSIs requires a combination of statutory and regulatory authority and local
        flexibility. It is an issue that can’t be tackled exclusively from the top down or exclusively from the
        bottom up.

    •   Allocation of scarce resources and the different missions of the regulatory agencies make dealing with
        the issue of CSIs very complicated at the state level.


Summary of Interviews
Among the information and opinions gathered from the 20 interviewees with dock management authority or
knowledge, the following points offer insight into where useful improvements could be made to Alaska’s
existing approach to private freshwater dock management for cumulative and secondary impacts:

    •   Dock regulation on the Kenai River was widely recognized by the group as an example of a successful
        approach. Strong points of dock management on the Kenai included:

             •   Restrictions are simple and easy to understand (one dock per landowner with a clear size
                 restriction of 80 square feet).

             •   The Kenai River Center is an effective way to help property owners manage and coordinate
                 permitting from the different agencies. Having a single location (for everything but Corps of
                 Engineers permits) makes permitting easier for the property owner and also facilitates
                 communication between permitting agencies who are sometimes territorial about their
                 related but different responsibilities.




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             •   Voluntary compliance is an important focus. It is achieved through public education efforts,
                 consistent enforcement, and the relative ease with which permits are obtained.

        One advantage several interviewees pointed to in managing private non-commercial docks on the
        Kenai River was the powerful user groups on both sides of the issue. Landowners who might like to
        build bigger more elaborate docks are prevented from doing so in part because both sport and
        commercial fish users of the river would be adversely impacted. In contrast, the public users of Nancy
        Lake, for example, are a more amorphous group with less financial interest at stake. Nancy Lake
        users, consequently, would be less likely to unite against large elaborate docks or the proliferation of
        docks that would cause CSIs because their interests are less obviously or specifically threatened.

    •   With few exceptions, interviewees generally agreed that personal use docks are not causing
        significant problems in terms of CSIs, although they were quick to acknowledge that there is little
        regulation or enforcement of dock building and considerable uncertainty about the number of docks
        on state waters.

    •   Geographically, the one area of concern was the Mat-Su Borough, Big Lake and Nancy Lake in
        particular. Even on those lakes, though, the concerns were primarily about the proliferation of docks
        and the lack of control over size (some of the docks are very large and elaborate). Interviewees
        responsible for regulating docks on those lakes described how they were unsure even how many
        docks were on the lakes and how one welcome improvement to the current system would be a
        complete inventory of existing docks. One interviewee who was not responsible for the Mat-Su lakes
        described a visit there that “scared her to death” in terms of how out of control dock building
        seemed there. She described the Mat-Su lakes as the “wild West” where little regulation occurs unless
        the public gets outraged.

    •   CSI-related concerns on the Mat-Su lakes were primarily about overcrowding (and related boating
        safety concerns), aesthetics, and the perception that private landowners were appropriating the
        shoreline and public waters.

    •   Landowners on the Mat-Su lakes are politically powerful and the established practice of building large
        multi-purpose docks would make stricter enforcement difficult to implement. It would be tough to
        convince them that their rights are limited to accessing state waters with a simple dock that could
        moor one or two boats.

    •   Part of the problem on the Mat-Su lakes was reported to be lack of enforcement of existing
        regulations; regulating these types of docks has been a lower priority than other things for the dock
        management agencies.

    •   Dock construction companies were frustrated that the lack of enforcement of permitting
        requirements resulted in their being punished for doing things the right way (i.e., obtaining permits).

    •   One prominent construction company noted that the permits are always issued eventually, which
        raised questions about why they took so long if the answer is always the same. More agency reviews
        have historically just meant more delays, but not different answers.


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       •    Lack of enforcement stems more from a lack of available resources (time, personnel, and equipment
            such as vehicles, airplanes, snow machines, etc.) than a lack of authority. Formal enforcement efforts
            – whether through the courts or the agencies’ own enforcement powers –are very time consuming
            and not at all efficient. One interviewee said his agency could only pursue one or two of those kinds
            of actions a year and only at the expense of higher priority tasks.

       •    Voluntary compliance is critical and agency reviews should be limited to larger, more complex docks
            that raise special concerns. Process should be streamlined for small docks for the benefit of both the
            public and regulators.

       •    Water quality was cited as a concern by several interviewees who also noted that several bodies of
            water in the state had been put on the impaired waters list by the Department of Environmental
            Conservation. However, it was difficult for them to say to what extent docks played a role in water
            quality beyond their contribution to increased boating and related fuel spills and oil leaks.

       •    Working with the construction companies who actually build the docks has a lot of promise as an
            educational outreach effort. They are often involved in the permitting process and if the system
            encouraged simpler docks by exempting basic designs and small docks from permit requirements to
            the benefit of the construction companies (who could then build more docks and deal with less
            bureaucracy) they could be an important ally.

       •    Permitting can be personality driven and there’s art to it as well as science. It can never be reduced to
            a formula, or a perfect regulation.


What the Literature Review and Interviews Offer on Specific
Issues
Taken together, the CSI literature and interviews with Alaska officials provides insight into some of the specific
issues facing dock management agencies.

Definitions of Freshwater Cumulative and Secondary Impacts

This project has a significant advantage over much of the subject matter covered by the literature review in
that it restricts its focus to private, non-commercial docks in freshwater. With less need for a one-size-fits-all
definition, the variety of definitions in the literature can be reduced to relatively simple and uncontroversial
concepts.

            •     Cumulative impacts in this context are impacts created by a number of docks or the general
                  proliferation of docks when individually the docks do not create a concern for any of the various
                  state and federal management agencies. 4

            •     Secondary impacts in this context are those created by activities that docks facilitate (primarily
                  boating) rather than the docks themselves.


4   To the extent docks create individual or site-specific concerns, those concerns are outside the scope of this part of the study.

A Review of Private Dock Management Regimes: Regulations and Practices                                      McDowell Group Inc. • Page 60
None of the interviewees expressed concern or confusion with these basic concepts in the context of private
freshwater docks. A variety of attempted all-encompassing definitions exist throughout the literature and in
both Alaska and other states’ laws and regulations, but the difficulties of regulating specifically for private
freshwater dock CSIs are not primarily definitional. 5

Procedures for Measuring and Tracking Cumulative and Secondary Impacts

One of the themes that emerged from the interviews was that there’s little concern about dock-related
cumulative and secondary impacts other than on Mat-Su lakes, where the issues related to docks and CSIs
include aesthetics, overcrowding, and the appropriation of public waters for private landowners’ use. Overall,
interviewees did not express concerns about the insufficiency of the various possible methods for measuring
and tracking CSIs; in locations other than the Mat-Su there was little perceived need to look more closely at
CSIs and on the Mat-Su lakes the problems were reported to be sufficiently obvious as to not require more
sensitive measuring.

Interviewees pointed out that it is impossible to know how many docks are too many with absolute certainty,
but that intuitively it makes sense to encourage the building of smaller docks as a basic philosophy (some
interviewees also felt strongly that landowners should be reminded more often where their rights end and the
public’s rights begin, i.e., landowners have access rights to the water, but not absolute ownership rights
beyond the ordinary high water mark). In other words, even without specific agreement as to the best
method for determining how many docks is too many, dock regulators and advocacy groups generally
agreed that methods that encouraged fewer and smaller docks would reduce the likelihood of CSIs becoming
a greater concern than would otherwise be the case.

The literature review made clear that regulating CSIs is unlikely ever to be an entirely objective, scientific
process with unassailable protocols and tracking mechanisms. The literature review also suggested that the
answers may lie in planning and designating different areas for different uses as a preventive approach rather
than engaging in time and resource intensive protocols for determining how many docks are too many.

Current and Proposed Management Techniques

Current management techniques for guarding against CSIs were widely viewed as sufficient, given the
relative lack of concern for the impacts these types of docks are having. The major exception, however, was
the Mat-Su lakes where dock proliferation and the inability or unwillingness to effectively discourage or
prevent large, extravagant, multi-use docks from being built was viewed as a problem in need of a solution.
Interviewees generally acknowledged the need to encourage voluntary compliance, citing the lack of
resources for heavy-handed enforcement efforts.

Suggested Improvements to Alaska’s Interagency Permitting Procedures

     •    Inventory all docks on state waters; although interviewees were not generally concerned about the
          harm being done by these types of docks, they acknowledged that they did not know how many

5  There is considerable difficulty in determining threshold levels for different impacts and in reaching agreement as to when impacts are
occurring to a degree requiring action, but that is a different issue than defining CSIs. Definitions always matter, of course, but the
literature suggests that arguments over the definition of CSIs are often really arguments about the appropriate level of government
intervention and the appropriate uses of state waters.

A Review of Private Dock Management Regimes: Regulations and Practices                                   McDowell Group Inc. • Page 61
        docks were on the waters they were responsible for managing. The number of unauthorized docks
        was estimated to be in the hundreds on just one of the Mat-Su lakes identified as a concern. Satellite
        imagery and aerial photographs were both suggested as methods for inventorying the docks.

    •   Alternatively to inventorying all docks on state waters, inventory docks on Mat-Su lakes exclusively as
        the first step in creating a management model that could be used in other Alaska locations. For
        example, step 1: inventory; step 2: identify locations where CSIs may be occurring or at risk of
        occurring soon; step 3: access any existing data on water quality, fish populations, etc. in those areas
        and determine which agencies are actively engaged; step 4: work with local officials, homeowners
        associations, dock builders, and the public to develop strategies for voluntary measures that could
        improve the situation; step 5: assess the effectiveness of voluntary measures and enact more rigid
        restrictions, if necessary.

    •   Focus on educating landowners and dock builders to increase voluntary compliance. Interviewees
        acknowledged that this will not be an easy task in areas where the established practice has been to
        allow big docks. Several interviewees noted that there is need for both “carrot” and “stick”
        incentives.

STREAMLINED PERMITTING

Several interviewees mentioned the idea of a simple, short joint agency application as a potential
improvement to the existing method for regulating these types of docks and guarding against CSIs.
Suggestions, both specific and general included:

    •   Encourage the building of basic, small docks by making permitting easier for the public and the
        contractors who build the docks: a single, joint agency application for these types of docks with a
        specific deadline on agencies’ decisions. This would also allow management agencies to focus on
        their higher priorities and quickly approve these types of docks which are rarely a problem.

    •   In areas with high dock building activity, consider one-stop permitting locations on the model of the
        Kenai River Center where permitting agencies can work together. Small permitting centers in area
        offices would encourage greater coordination.

    •   Consider a dock registration system instead of a permitting system for docks below a certain size
        threshold. Dock construction companies liked the idea because it would make planning their
        construction seasons easier. They said that aspect of their work is a challenge under the current
        system because there is a limited amount of time to build (because of ice) and they are often unsure
        how long they’ll have to wait for permitting to be completed. They also thought it would encourage
        property owners to build smaller docks because of the promise of simpler permitting procedures.

    •   Add language to 11 AAC 96.020 (Department of Natural Resources, Division of Parks & Outdoor
        Recreation regulations) defining docks that require permits as only those that exceed a certain size. In
        other words, simply exempt from Parks permitting many of the docks that are currently required to
        be permitted (with language limiting unpermitted docks to one per landowner).



A Review of Private Dock Management Regimes: Regulations and Practices              McDowell Group Inc. • Page 62
Alaska Successes/Failures and Lessons Learned

All of the interviewees pointed to the Kenai River as a well-managed body of water in terms of docks and to
one or more of the Mat-Su lakes as in need of more or better dock management. Interviewees pointed out
that the Mat-Su situation arose because that’s where the most development has occurred rather than because
dock regulation is inherently worse there than in other parts of the state. One of the lessons they pointed to
in this regard was the importance of looking ahead because it is harder to resolve a problem like dock
proliferation than it would have been to prevent it.

Perhaps the most important lesson interviewees saw from the successes of the Kenai River is the difference it
makes to have strong user groups whose interests counterbalance landowners’ interests in building docks.
Voluntary compliance is much more likely when the public is engaged to the degree that they will take action
to encourage government agencies to enforce existing laws and regulations. All six of the other jurisdictions
studied also pointed to public complaints as their principal method for discovering violations requiring
enforcement efforts.

Another lesson interviewees pointed to from the successes of the Kenai River was the importance of simple
rules, public education, and a streamlined permitting process. Landowners know through public education
that permits are required to build docks on the Kenai (one interviewee noted that realtors in the area are
made aware of permitting requirements). Obtaining a permit is made relatively simple through the Kenai
River Center. Limitations on size and number of docks are clear and specific.

The proliferation of large docks on the Mat-Su lakes points more than anything else to the benefit of
establishing and enforcing restrictions on dock size and number early in the process of a lake or river’s
development. It will be difficult, interviewees agreed, to tell a Mat-Su landowner that he or she cannot build a
dock of a certain size or type when so many of the landowners’ lakefront neighbors already have large docks
designed for much more than simple access to state waters.




A Review of Private Dock Management Regimes: Regulations and Practices              McDowell Group Inc. • Page 63
                      Summary of Phase Two: Cumulative and Secondary Impacts of Private Freshwater Docks in Alaska
                 Possible CSIs                 Level of Concern                                                  Comments
                                                                         Concerns about navigation are dealt with in site-specific reviews. Navigation clearly takes
                                                                         precedent over landowners’ rights to build docks. The Riverboat Discovery dock on the
                   Navigation                        Low
                                                                         Chena River was cited as a dock that could cause navigation concerns if others in the area
                                                                         were built with the same dimensions and extending as far into the river as it does.
                                                                         Alaska Department of Fish and Game interviewees did not report significant concerns
                                                                         about their ability to effectively deal with habitat issues through their site-specific
                     Habitat                     Low-Moderate            reviews. They did note that minimizing the size and number of docks was generally a
                                                                         good idea from the perspective of sustaining fish stocks. Of some concern was the lack of
                                                                         knowledge about the number and existing use of docks on state waters.
                                                                         The secondary impacts from boating were cited as a potential problem, but regulators
                                                                         did not cite any specific areas where they believed these types of impacts were occurring
                                                                         to a degree that required attention.

                    Shoreline                    Low-Moderate
                                                                         The proliferation of docks on Mat-Su Borough Lakes were noted as development that
                                                                         was changing the shoreline, although much of the concern there was around the
                                                                         aesthetics of the shoreline and the fact that private landowners were appropriating
                                                                         public waters for their own use beyond what should be allowed.
                                                                         Interviewees expressed concerns about the proliferation of docks on Mat-Su Lakes. Part
                                                                         of the problem is uncertainty about the number and use of existing docks (State Park
                                                                         regulators said there are probably hundreds of unauthorized docks on the lakes). Another
                                                                         part of the problem is the growing size and complexity of docks. Because those types of
                                                                         docks already exist, it will be difficult to deny permission to other landowners who want
                                                                         to build similar structures.

               Public Access/Use                 Moderate-High           Although there is little question legally that landowners’ rights to build docks are
                                                                         primarily access rights rather than ownership rights to state lands (those below the
                                                                         ordinary high-water mark), a culture has developed where more than access rights are
                                                                         expected. Landowners are a powerful user group and a political culture in the area that
                                                                         looks on government regulations and restrictions in a negative light will make it difficult
                                                                         to tackle the problem. Some interviewees had strong feelings about the need to more
                                                                         consistently educate the public about where their property rights end (ordinary high-
                                                                         water mark) and their access rights begin.
                                                                         Several interviewees noted specific bodies of water that had been classified as impaired
                                                                         by the Alaska Department of Conservation and speculated that boating likely had
                                                                         something to do with that. One interviewee noted that DEC had the powerful, but blunt
                 Water Quality                      Moderate
                                                                         tool available of completely shutting down a lake if the water quality deteriorated to a
                                                                         certain degree. Preserving water quality was one of several reasons cited for why
                                                                         preventive measures and advanced planning are more effective than remediation.


A Review of Private Dock Management Regimes: Regulations and Practices                      McDowell Group Inc. • Page 64
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A Review of Private Dock Management Regimes: Regulations and Practices     McDowell Group Inc. • Page 69
                                         Appendix 1: Source Documents

British Columbia

The following documents for British Columbia can be found at the web site below:

• Private Moorage Requirements and Best Management Practices (includes restrictions on size, materials,
design, location, access, navigation, and allowed uses)

• Crown Land Use Operational Policy: Private Moorage (includes the above document, as well as explanation
of and further details of the private moorage policy)

• Private Moorage Application Package

• Private Moorage Requirements List/Management Plan

• Frequently Asked Questions

• Glossary of Private Moorage Terms

http://www.agf.gov.bc.ca/clad/tenure_programs/programs/privatemoorage/index.html#reqs

Michigan

The following documents for Michigan can be found at the web sites below:

• For Guidance Only: Docks, Boat Hoists, and Boat Ramps (general guidance including details of what
qualifies for a “minor permit” and sample site plan for a minor project)

• Joint U.S. Army Corps of Engineers and Michigan permit application

http://www.michigan.gov/documents/deq/lwm-pcu-ez-docks_224040_7.pdf

• Joint Permit Application Training Manual (gives details of when permits are required—both state permits
and U.S. Army Corps of Engineers permits—and the jurisdictional basis; also includes a flow chart of the
permit review process)

http://www.michigan.gov/deq/0,1607,7-135-3307_29692_24403-76158--,00.html

• Temporary General Permit for Specified Minor Activities Authorized by the U.S. Army Corps of Engineers in
Inland Lakes and Streams in Michigan (general permit expires in July 2010)

http://www.michigan.gov/documents/deq/deq-lwm-water-wetlands-TempGPPN_232790_7.pdf




A Review of Private Dock Management Regimes: Regulations and Practices            McDowell Group Inc. • Page 70
Minnesota

The following documents for Minnesota can be found at the web sites below:

• General Permit, 2008-0401 (includes restrictions on size, materials, design, location, access, navigation, and
allowed uses for docks that do not require a permit)

• General Permit, 2008-0401, Questions and Answers

• Diagrams of Dock Platforms Meeting the Requirements of General Permit 2008-0401

• Information Sheet: Docks and Access in Public Waters

• Shoreland Lake Classifications

http://www.dnr.state.mn.us/waters/watermgmt_section/pwpermits/docks.html

Permit applications forms can be found at

http://www.dnr.state.mn.us/waters/watermgmt_section/pwpermits/applications.html

The Minnesota Administrative Rules that address structures in public waters (6115.0210) can be found at

https://www.revisor.mn.gov/rules/?id=6115.0210

These rules are part of Chapter 6115, which addresses public waters in general, including permitting, fees,
and definitions.

https://www.revisor.mn.gov/rules/?id=6115

Oregon

The following documents for Oregon can be found at the web sites below:

• Waterway Structure Registration Q&A

• Department of State Lands Forms and Publications

• Application Status interactive map

http://www.oregon.gov/DSL/LW/dockregis.shtml

• Oregon Administrative Rules Governing the Management of, and Issuing of Leases, Licenses, Temporary
Use Permits and Registrations for Structures on, and Uses of State-Owned Submerged and Submersible Land

http://arcweb.sos.state.or.us/rules/OARS_100/OAR_141/141_082.html




A Review of Private Dock Management Regimes: Regulations and Practices              McDowell Group Inc. • Page 71
Washington

The following documents for Washington can be found at the web sites below:

• State Environmental Policy Act homepage on Department of Ecology web site (general information about
permitting requirements and the interaction between state and local jurisdictions)

http://www.ecy.wa.gov/programs/sea/sepa/e-review.html

• State Environmental Policy Act Handbook

http://www.ecy.wa.gov/programs/sea/sepa/handbk/hbintro.html

• State Environmental Policy Act Laws and Regulations

-    Revised Code of Washington (RCW) 43.21 C

-    http://apps.leg.wa.gov/RCW/default.aspx?cite=43.21C

-    Washington Administrative Code (WAC) 197-11

-    http://apps.leg.wa.gov/WAC/default.aspx?cite=197-11

-    Model Ordinance WAC 173-806

-    http://apps.leg.wa.gov/WAC/default.aspx?cite=173-806

• Introduction to the Shoreline Management Act (which requires local jurisdictions to develop Shoreline
Master Plans

http://www.ecy.wa.gov/programs/sea/sma/st_guide/intro.html

• Shoreline Planners Toolbox

http://www.ecy.wa.gov/programs/sea/shorelines/smp/toolbox.html

• Aquatic Use Authorization, Washington Department of Natural Resources (required for activities that take
place on State-owned aquatic lands

http://apps.ecy.wa.gov/permithandbook/permitdetail.asp?id=31

• Section 404 Permit Overview (details process by which U.S. Army Corps of Engineers permit can be
obtained on Washington’s Joint Aquatic Resource Permit Application form)

http://apps.ecy.wa.gov/permithandbook/permitdetail.asp?id=37

• Example of a local Shoreline Master Plan

http://www.co.whatcom.wa.us/pds/naturalresources/shorelines/index.jsp




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Wisconsin

The following documents for Wisconsin can be found at the web sites below:

• Wisconsin’s Pier Regulations: Everything you need to know for 2009

http://dnr.wi.gov/waterways/factsheets/Piers2009.pdf

• Pier Planner

http://www.dnr.wi.gov/waterways/factsheets/pierplanner2009.pdf

• Pier, Dock, or Wharf Exemption Checklist

http://www.dnr.wisconsin.gov/waterways/checklists/checklist_pierorwharf.pdf

NOAA

The National Oceanic and Atmospheric Administration created a number of resources to assist dock
regulators. These include the following:

Alternatives for Coastal Development: One Site, Three Scenarios:

http://www.csc.noaa.gov/alternatives/docks.html

Database of State Dock and Pier Management Programs:

http://www8.nos.noaa.gov/docks/publicview.aspx

Docks and piers online bibliography:

http://www8.nos.noaa.gov/nccos/docks.aspx

Evaluating Environmental Impacts of Residential Docks:

http://coastalscience.noaa.gov/news/feature/0503.html

Inventory of Laws, Regulations & Polices Related to Residential Docks

http://www.csc.noaa.gov/docksandpiers/

Science and Management Workshops, including:

    •   State of the Science Workshop

    •   Management Tools Workshop

    •   Environmental and Aesthetic Impacts of Small Docks and Piers: Workshop Report (2003)

http://coastalmanagement.noaa.gov/initiatives/docks/workshops.html

Training Materials for Dock and Pier Management:

A Review of Private Dock Management Regimes: Regulations and Practices        McDowell Group Inc. • Page 73
http://coastalmanagement.noaa.gov/initiatives/docks/training.html

Visual Impact Management for Docks and Piers:

    •   Visual Impact Management Assessment White Paper

    •   Dock Visualization Tool

http://coastalmanagement.noaa.gov/initiatives/docks/visual_impact.html#9




A Review of Private Dock Management Regimes: Regulations and Practices     McDowell Group Inc. • Page 74
                                                 Appendix 2: Agency Contacts



British Columbia                                                Oregon
Simone Engels                                                   Jeff Kroft
Section Head Operations Division, Coast                         Senior Policy Specialist Land Management Division
Integrated Land Management Bureau                               Oregon Department of State Lands
Nanaimo, British Columbia                                       Salem, Oregon
(250) 751-7271                                                  (503) 986-5280
Simone.Engels@gov.bc.ca                                         Jeff.Kroft@state.or.us

Doug Berry
Senior Land Officer Operations Division, Coast                  Washington
Integrated Land Management Bureau
Nanaimo, British Columbia
                                                                Jeanne Fulcher
(250) 751-7250
                                                                Washington State Governor’s
Doug.Berry@gov.bc.ca
                                                                Office of Regulatory Assistance
                                                                Olympia, Washington
Megan Williams
                                                                (360) 407-6415
Senior Natural Resource Officer
                                                                Jeanne.Fulcher@ora.wa.gov
Front Counter BC
Kamloops, British Columbia
(250) 828-4131
Megan.Williams@gov.bc.ca                                        Wisconsin
                                                                Martye Griffin
                                                                Statewide Waterway Science & Policy Leader
Michigan                                                        Waterway Protection Section
                                                                Bureau of Watershed Management
Kip Cronk
                                                                Madison, Wisconsin
Inland Lakes and Streams Coordinator                            (608) 266-2997
Michigan Department of Natural                                  Martinp.Griffin@wisconsin.gov
Resources & Environment
Lansing, Michigan
(517) 373-9244
CronkK@michigan.gov



Minnesota
Julie Ekman
Water Permit Programs Supervisor
Minnesota Department of
Natural Resources-Waters
St. Paul, Minnesota
(651) 259-5674
Julie.Ekman@state.mn.us

Tom Hovey
Public Waters Hydrologist
Minnesota Department of
Natural Resources-Waters
St. Paul, Minnesota
(651) 259-5654
Tom.Hovey@state.mn.us


A Review of Private Dock Management Regimes: Regulations and Practices                    McDowell Group Inc. • Page 75
         Appendix 3: Phase Two Interview Questions

Interviewees fell into three categories: 1) agency personnel who had some authority to issue permits related
to dock construction; 2) non-profit advocacy groups; and 3) dock construction companies. The questions
listed below for each type of interviewee were guidelines more than a rigid script. The interviews were not
meant to provide survey-type responses, but to begin conversations about what worked well with regard to
regulating for cumulative and secondary impacts in the existing system, and what needed improvement.


Agency Personnel
1. Discuss working definitions of cumulative impacts and secondary impacts and explain project briefly:

Cumulative impacts: the combined impacts that accrue over time or space from a series of similar or related
individual actions or projects that often have negligible individual impacts (for example, fish habitat
destruction in a lake)

Secondary impacts: impacts caused by and resulting from an activity, but occurring later in time or further
removed in distance, although still reasonably foreseeable (for example, problems of boat overcrowding as a
result of dock proliferation, i.e., it’s not the docks themselves causing the problem, but the activity – boating
– that the docks facilitate.

Ask if there are any other elements to the working definitions that should be considered.

2. Is your agency directed by statute, regulation, policies, or other directive to identify, consider, or control
   cumulative or secondary impacts from freshwater docks? If YES, could you please identify the source of
   direction, and what you are directed to do?

3. Is there a site within your jurisdiction/area of concern where you believe freshwater docks are causing
   cumulative impacts? If so, please keep that site or those sites in mind for a few follow up questions.

4. How did you determine that freshwater docks cumulative impacts were accumulating and causing
   problems?

5. After you determined that a cumulative impact was occurring or was likely to occur, what did you do to
   decide if that cumulative impact was significant and needed attention? How did you determine what
   attention it needed?

6. What obstacles did you face in identifying, considering, or controlling impacts?

7. Did you face any of the following obstacles?

        Inadequate direction, guidance, or tools with which to address the cumulative impacts
        Lack of political or institutional support
        Insufficient time to pay attention to the cumulative impacts
        Insufficient funds to assess and evaluate the cumulative impacts
        Insufficient site-specific information (i.e. baseline data) about uses/resources at risk
        Insufficient information to determine whether a cumulative impact would be significant
        Inadequate experience in dealing with the cumulative impacts
        Absence of a definition of cumulative impacts
        Limited authority to address cumulative impacts, due to land ownership issues
        Other

A Review of Private Dock Management Regimes: Regulations and Practices                McDowell Group Inc. • Page 76
8. From this list of techniques that could be used to identify, consider, or control cumulative impacts,
   indicate whether you’ve used the technique.

        Searched files to find out about impacts from past projects in a particular area
        Drew on other agencies’ activities, information and staff knowledge
        Relied on other agencies to address cumulative impacts
        Applied planning techniques (i.e., land use/master/comprehensive/economic development/dock and
        pier management planning)
        Used the NEPA or EIS processes
        Used permit review techniques or consistency review techniques (e.g., RFAI)
        Conducted special studies
        Conducted field surveys
        Examples
        Measured the impacts against specific environmental standards
        Assessed environmental indicators
        Examples
        Applied cartographic techniques
        Applied your own professional judgment
        Held internal discussions
        Through planning, established enforceable policies with the intent of preventing significant adverse
        cumulative impacts from occurring
        Established thresholds or standards beyond which impacts are not allowed
        Attached enforceable stipulations, alternative measures, or mitigation requirements for permits, leases
        or licenses
        During consistency review, found a project inconsistent based upon an enforceable policy regarding
        freshwater docks cumulative impacts
        Limited access to resources at risk
        Took enforcement actions
        Monitored site-specific impacts
        Maintained a field presence to prevent further impacts in the area
        Based upon impacts to date, made a change of policy regarding future impacts
        Other

9. Of the techniques you just identified, which techniques have been most successful or unsuccessful and
   why?

10. What additional guidance or tools, if any, would be useful to you in addressing freshwater dock
    cumulative impacts?

11. Can you think of any notable dock management successes or failures in Alaska or elsewhere? If so, what
    lessons were learned from the success/failure?

12. Do you have any closing comments or recommendations regarding how freshwater docks cumulative
    and secondary impacts could be addressed?

13. What very specific improvements would you suggest to Alaska’s interagency permitting procedures?


Non-Profit Advocacy Groups
1. Discuss working definitions of cumulative impacts and secondary impacts and explain project briefly:




A Review of Private Dock Management Regimes: Regulations and Practices             McDowell Group Inc. • Page 77
Cumulative impacts: the combined impacts that accrue over time or space from a series of similar or related
individual actions or projects that often have negligible individual impacts (for example, fish habitat
destruction in a lake)

Secondary impacts: impacts caused by and resulting from an activity, but occurring later in time or further
removed in distance, although still reasonably foreseeable (for example, problems of boat overcrowding as a
result of dock proliferation, i.e., it’s not the docks themselves causing the problem, but the activity – boating
– that the docks facilitate.

Ask if there are any other elements to the working definitions that should be considered.

2. Is there a site within your area of concern where you believe freshwater docks are causing cumulative
   impacts? If so, where?

3. What techniques do you think would be most helpful in addressing CSIs?

4. Can you think of any notable dock management successes or failures in Alaska or elsewhere? If so, what
   lessons were learned from the success/failure?

5. Do you have any closing comments or recommendations regarding how freshwater docks cumulative
   and secondary impacts are, or could be, addressed by agencies or coastal districts?

6. What very specific improvements would you suggest to Alaska’s interagency permitting procedures?


Dock Construction Companies
1. Discuss working definitions of cumulative impacts and secondary impacts and explain project briefly:

Cumulative impacts: the combined impacts that accrue over time or space from a series of similar or related
individual actions or projects that often have negligible individual impacts (for example, fish habitat
destruction in a lake)

Secondary impacts: impacts caused by and resulting from an activity, but occurring later in time or further
removed in distance, although still reasonably foreseeable (for example, problems of boat overcrowding as a
result of dock proliferation, i.e., it’s not the docks themselves causing the problem, but the activity – boating
– that the docks facilitate.

2. What government regulations are meaningful (i.e., enforced) restraints on the size of docks you build?

3. Are those restrictions/restraints reasonable in your opinion?

4. How do you think docks should be regulated to guard against problems related to proliferation or
   cumulative impacts?

5. If so, what factors went into your determination that there are too many docks for the site?

6. Do you have any closing comments or recommendations regarding how freshwater docks could be
   regulated to prevent harmful cumulative and secondary impacts?




A Review of Private Dock Management Regimes: Regulations and Practices                McDowell Group Inc. • Page 78

				
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