DNR, counsel say county cannot ban clearcutting in shoreland corridors

A public hearing Tuesday on proposed amendments to Oneida County’s shoreland zoning ordinance was sparsely attended — no votes were taken, few residents spoke — but county officials received a clear signal from the state and their outside attorney on one issue that has been contentious: Prohibiting clearcutting in viewing and access corridors doesn’t cut it legally.

The state does not prohibit clearcutting in the corridors, but environmentalists argue that counties can do so, and they point to some that have. For his part, outside counsel Larry Konopacki delivered his opposing view and that of the state Department of Natural Resources (DNR), but hastened to add that their opinions weren’t necessarily infallible.

Further dialogue could still take place before the county puts the ordinance to bed, Konopacki said.

“I can see the arguments that there might be some wiggle room to regulate there and certainly there are counties that have, and I don’t want to come out and say that those are illegal, but at least the two of us, myself and the DNR program attorney, are in agreement that that’s not the appropriate way to interpret that,” Konopacki said of the argument for prohibiting clearcutting.

The Planning and Development Committee ultimately postponed action and will bring Konopacki back for a future meeting, possibly in April, after reviewing public and DNR comments.

During the hearing, Konopacki explained the complicated structure governing shoreland zoning.

“The DNR was directed to establish administrative rules establishing the standards for zoning in the shoreland that the counties then are required to implement,” Konopacki said. “They also prepare a model shoreland zoning ordinance for counties to use, and they are constantly modifying that as the legislature changes the rules and adds additional provisions.”

In the last 15 years, Konopacki said, at least six bills have changed the rules, and the DNR works to update the model ordinance. 

“They haven’t, though, changed their administrative code,” he said. “That’s a lengthy process for them and really, I think they focus their efforts on trying to update the model ordinance. So there are situations where there’s inconsistencies between [the code] and the existing state statutes, and that’s really the biggest challenge for a county.”

In Oneida County, the biggest challenge could well be achieving any kind of consensus on clearcutting, though there was at least consensus among the few who spoke at the meeting and weighed in on the public record through correspondence. They all supported a prohibition on the practice. 

Begging to differ

In general, viewing and access corridors are carve-outs within the mandated 35-foot buffer zone along lakes and rivers, allowing trees to be removed. The devil is in the details of removal. 

In his view, Konopacki said, the state does not allow a clearcutting ban.

“There’s some differences between the counties on this particular point, I gave an opinion on this the last time I was present for the committee meeting, and I’ll give you the same one today: I don’t believe that it’s permissible to prohibit clearcutting of the access and viewing corridor that goes between the water and the 35-foot line away from the water in your vegetative buffer zone,” he said. “Remember generally you can’t remove trees or vegetation other than for routine maintenance, but the exception is the access or viewing corridor.”

The committee had quite a bit of discussion about it, Konopacki said. 

“But my opinion is that the requirement is that that stay vegetated,” he said. “So if you do work there, if you do some landscaping, whatever, you have to revegetate. You can’t leave it dirt. It has to be re-vegetated. There are counties — Vilas County is an example —  where they’ve got some requirements about what trees need to be left and the distance between those trees and the types of vegetation that have to be retained.”

Konopacki said he didn’t think that passes muster.

“I don’t think that’s allowable in the access or viewing corridor,” he said. “I acknowledge there could be a difference of opinion on this. I’m not telling you I’m absolutely right because I was unsure, and I knew this was coming up at the last meeting.”

So, Konopacki said, he reached out to the DNR lead counsel on the program, and the counsel agreed with his interpretation.

“He did agree that that is an exception, but he also agreed that it has to remain vegetated,” he said. “So what you’ll typically see is a mowed strip that’s 35 feet wide per hundred feet up to a maximum of 200 feet. So it’s not the entire shoreline. You cannot clearcut your entire shoreline.”

But that’s just his opinion, Konopacki said. 

“What I’m saying is I believe that’s impermissible [to prohibit clearcutting in the viewing corridor] and the DNR attorney believes that’s impermissible,” he said. “But I also acknowledge that there’s a number of things in this ordinance that the DNR doesn't agree with, right? I mean, the DNR’s agreement is not the end-all, be-all, and neither is mine.”

Environmental advocates disagree

To be sure, environmentalists weighing in urged the county to adopt selective-cutting language anyway. Eric Rempala of Oneida County Clean Waters Action argued that the lack of a statutory definition leaves room for regulation.

“When I looked at the state statutes and [the administrative code], I could not find a definition of what clearcutting means,” Rempala said. “50 percent clearing the land for an access or viewing corridor might actually be considered clearcutting. Without a specific definition, I think there’s room for debate. … And as mentioned, there are multiple counties that do have this type of language for prohibition on clearcutting in the access or viewing corridor.” 

Rempala also criticized the process.

“Part of the problems we had with this whole process is, all four years of it, publicly there’s been a lot of public comment given, and I have seen very little budge by this committee as far as considering or accepting anything suggested,” he said. “In 2023. OCLRA (Oneida County Lakes and Rivers Association) went so far as to provide ballots for people to weigh in on multiple changes that you guys proposed, and you received 114 ballots with concerns about some of the changes you made, and I haven’t seen any action taken on any public comments.”

Rempala said what he did see was action taken after a meeting in Minocqua attended by landscapers and contractors.

“Miraculously, boathouse stairs, retaining walls, and contouring all of a sudden showed up in you guys’ shoreland protection ordinance,” he said. “Boathouse stairs and retaining walls, I might add, are strictly forbidden by state statute, yet you hired an attorney and paid thousands of dollars to have them try and get them to change language on boathouse stairs and retaining walls. So I’m concerned that somehow public comment winds up being more like corporate input.”

Michele Sadauskas, the county conservationist, brought up landscaping, warning that another proposed change — redefining “landscaping” to include altering ground contours — could allow grading, filling, and excavation near shorelines.

“Altering the contours of the ground goes well beyond vegetation management,” Sadauskas said. “With this additional language, any topography that is beneficial and buffers the flow of sediments and nutrients is now fair game to bulldoze and level,” she said. “In fact, any filling, grading, and excavating in the landscape or in the viewing and access corridor would now fall under the new definition of landscaping, including stump removal. … By adding, ‘altering the contours of the ground,’ grading, filling, excavating, and stump removal now become allowable. Is this truly the intent of the committee?”

Committee members will continue reviewing comments before drafting final recommendations for the full county board.

“Once we’re done with all that, it comes back to the county,” he said. “We’ll have quite a few changes to discuss and we can certainly add to that a more robust discussion of clearcutting versus non-clearcutting. And then landscaping.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.