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April 5, 2020

2/20/2020 7:30:00 AM
Oneida County reduces wetland grading setback
After less than two years, county ditches 15-foot setback, returns to 5 feet

Richard Moore
Investigative Reporter

After less than two years with a 15-foot shoreland wetland setback, the Oneida County Board of Supervisors voted 15-3 Tuesday to drop the buffer to five feet, as it had been for 14 years prior to 2018.

Supporters of the reduced setback say the changes will not endanger wetlands because the change will not apply to lakebed wetlands in the shoreland near or attached to rivers and lakes but mostly to upland wetlands in the shoreland zone, while silt fencing would be required for all land disturbances less than 25 feet from a shoreland wetland, which would have to conform to the standards and specifications outlined in the Wisconsin Construction Site Best Management Practices Handbook.

The setback is also not a structure setback but a land disturbance setback.

Supporters also say the 15-foot setback established in 2018 had put more than 2,000 parcels created under the old setback of five feet - in place between 2004 and 2018 - in danger of becoming nonconforming.

That danger was eliminated with Tuesday's vote. The new/old setback still leaves Oneida County with a more restrictive setback than eight of nine surrounding or nearby counties, which have a zero setback.

Six members of the public showed up to oppose the ordinance, and several supervisors wanted to at least delay the reduced setback while they pursued more information, especially about the science behind wetland setbacks.

Two members of the public supported the change, one representing the town of Monico.

The public speaks

Karl Fate of Crescent said the resolution as well as a previous version seemed to indicate that a single case was the justification for reducing the setback across the entire county. What's more, Fate said, neither version contained enough information to make a credible case for the setback.

"Oneida County must have a mechanism for addressing individual cases where there is a legitimate issue," he said. "However, reducing a standard across the entire county to address a single poorly defined case is extremely poor public policy and raises concerns about why the committee would spend so much time and energy on something they won't explain while creating unnecessary work for zoning department staff."

Tom Jerow of Rhinelander, a former DNR employee who said he was speaking just for himself, said that, with a setback of only five feet, he was concerned that a developer or homeowner would inadvertently fill wetlands that were not properly identified in a zoning application and that that would result in an enforcement by the DNR or U.S. Army Corps of Engineers.

"I participated in more than one enforcement case where a homeowner thought they had all the approvals necessary based on a zoning approval, only to have the DNR come in after the fact because the wetland was filled without prior authorization," Jerow said. "These cases are costly for the homeowner, and, in the case of shoreland-wetlands, would have irreversible impacts on these important wetlands and the nearby lakes and rivers they supply."

Wetland delineation is a complicated, difficult process, Jerow said, and he said he had suggested to the zoning committee that the county require professional wetland delineation to protect property owners and the county from costly errors.

Jerow said he had testified about the importance of shoreland wetlands to the health of lakes and rivers and ultimately to the region's tourism based economy. And he said there was a lot more to protecting wetlands than having silt fencing.

"The real impact to a wetland is having an impervious surface, like an asphalt driveway, within five feet of the wetland boundary," he said. "The long-term negative impacts to wetlands are well documented in the scientific literature and having a 15-foot buffer provides better protection for the wetland."

Jerow asked that the matter be referred back to committee and that they modify the ordinance to require professional wetland delineation, or simply leave the ordinance as it is.

"It's the right thing to do," he said.

A representative of the Oneida County Lakes and Rivers Association also opposed the ordinance change, and another member of the public pointed to the resolution's citing of a single case in which the new setback substantially affected a property owner, saying the county's variance mechanism should be used in such instances instead of reducing protections for all wetlands because one person was impacted.

Robert Briggs, the Monico town chairman, also appeared and said the town supported the change from 15 feet to five feet.

Rein counters

Jim Rein, a land surveyor and contractor in Minocqua, spoke in favor of the reduced setback. Rein began by reminding everyone just how big the shoreland area is and that upland wetlands were what was being addressed.

"The one thing we have to realize when we talk about shoreland wetlands is, that's a wetland that can be thousand feet from a lake, or 300 feet from a river," Rein said. "This isn't a wetland that is attached to a lake."

In addition, Rein said, the setback at issue was not a structure setback.

"This is a setback for disturbance," he said. "So when you do build a driveway - let's say it's 12 or 15 feet wide - the actual disturbance is another five feet beyond that. So now your 15-foot driveway becomes 25 feet."

And if you bump those setbacks another 15 feet beyond that, you're increasing the amount of property needed to as much as 60 feet of upland to put a 15-foot driveway in, Rein said.

"On a 100-foot lot, sometimes it's impossible," he said.

Rein also said variances are only granted for certain criteria, and if a property owner still has reasonable use of the property in the eyes of the board that grants variances, the variance can be denied. The variance for a driveway could be denied, for instance, if a walking path existed.

"A variance is not guaranteed," he said. "There might be a 25 percent chance we get that approval."

And when you consider who controls wetlands in Wisconsin, Rein said, that's the DNR and the Army Corps of Engineers.

"The DNR has no setbacks," he said. "The Army Corps has no setbacks."

As for the previous five-foot setback, Rein said that was fairly easy to work with.

"You could put your silt fence in beyond five feet, and you could do your construction, which would be another five feet or 10 feet beyond that," he said. "So your construction might be 15 feet from the wetland and there's still the ability to put the silt fencing at the five-foot mark."

With the 15-foot setback, Rein said, the silt fencing has to be beyond 15 feet.

"It just makes it a lot more invasive on the property owners and the properties to allow that to happen," he said.

Rein said he could agree that when a wetland actually attaches to a body of water that is within the 75-foot setback, it needed to be protected. A lot of times, though, Rein said, that wetland is partly within the lakebed, and those weren't the wetlands he was talking about.

Rather, Rein said, the shoreland zone pretty much encompasses the entire county, and it's the upland wetlands throughout the county that are impacted. And the change isn't based on just one impacted property owner, either, Rein said.

"I have multiple cases on my desk where I cannot get a driveway through the properties," he said. "I have had people purchase additional land to get the driveway, and I can't get it in. You take it in front of the variance committee and you're denied because you may have another way to access the property that may be an extra mile long to get back into the property."

Rein urged he board to return to the five-foot setback and to realize that the driveways and structures would not be within the five feet but beyond that.

During the board discussion, supervisor Alan VanRaalte said he had questions about the science and other things he wanted answered, but his motion to return the resolution to the committee to answer his specific questions was defeated, as was his motion to simply postpone the matter for a month.

Supervisor Bill Liebert said that, with all the regulation of shorelands that the DNR does, the state would likely have established a wetland setback if one was needed, but there was no such state setback.

Supervisor Scott Holewinski, who chairs the zoning committee, said the reduced setback would restore to property owners the useable areas of property they lost two years ago and would add to their property values and enhance the county's tax base.

The setback reduction passed, with three no votes, those being Steve Schreier, VanRaalte, and Jim Winkler. Supervisors Jack Sorensen and Bob Mott had excused absences.

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