Chapter 3
Qualitative Research Findings and Results

Introduction  (Back to TOC)

        Interviews, surveys, case studies and focus groups were chosen as qualitative techniques for several reasons. First, combining a mixture of qualitative research methods helps to triangulate the data. To the extent that the same issues are identified in the focus groups as have been identified in the interviews, the researchers are more confident that the observations are valid. Second, results from a multi-method qualitative study are more comprehensive and complementary. Focus groups, for example, allow the participants to build upon and to test initial strategies and/or problems identified by one of the participants (Morgan, 1997). Interviews, on the other hand, allow for an individual to provide a more detailed discussion of one particular point of view (Rubin and Rubin, 1995). Case studies offer a more careful description of the issues and time line surrounding a single situation. Finally, each of the components was directed by a different researcher as a precautionary safeguard against personal bias on the part of the researcher.

Interviews and survey research   (Back to TOC)

        Between January and August 1999, 55 people were interviewed for this study. People who were interviewed represented stakeholder groups that have experience in wetland protection policies. Local and county elected officials; staff from Door County Planning and Door County Soil and Water Conservation Department; staff from the Wisconsin Department of Natural Resources offices located in Sturgeon Bay, Green Bay and Madison; field office staff from the Army Corps of Engineers in Green Bay; members of Door County environmental groups as well as environmental groups around Wisconsin; real estate agents and land developers working in Door County; staff from the Natural Resources Conservation Service; wetland delineators and staff from Regional Planning Commissions; planners from other counties in the state; U.S. Fish and Wildlife and U.S. Environmental Protection Agency staff; and local and county appointed officials were contacted for a personal or telephone interview. An initial list of interviewees was provided by the Wetlands Organization Task Force, with additional interviews scheduled with people who were identified by stakeholders as having wetlands expertise and/or opinions about wetland protection in Door County.

        Each interview lasted between 60 and 90 minutes. Participants were encouraged to be as candid as possible in responding to the questions, and to feel free to add information that they deemed important. Interviews were semi-structured and involved a series of predetermined questions (Berg, 1998). Additional probing questions were asked to clarify a point made by the interviewee, or to expand upon a comment, suggestion or idea. Interviews were not tape-recorded, but were recorded in a notebook by the interviewer for later coding and analysis. Comments were subsequently typed and coded into categories. Attributional coding was employed, meaning that researcher looked for causal explanations offered by the interviewee to explain issues and constraints with the current wetland programs (Silvester, 1998). After categories and sub-categories of comments were coded, axial coding was done to establish connections between categories, stakeholder groups and intensity (Strauss and Corbin, 1998). These categories were then placed into the tables that appear below.

        24 surveys were completed and returned by mail after the interview. Survey questions offered interviewees an opportunity to respond in more detail in writing and to expand upon individual concerns. Survey data was recorded and coded in a similar fashion as the interview data. (See Appendix B for a sample of the interview letter, interview and survey template.) The results of both the interviews and the surveys are included in the discussion below. Because all comments are confidential, they are attributed only to a particular stakeholder group, not to an individual.

        Goals of a Door County wetland program

        People contacted for this study share a common vision: They want to protect wetlands. Some respondents will accept a "no net loss" philosophy of protection, meaning that they are willing to see some development of less environmentally valuable wetlands; others would like to see no encroachment on wetlands at all. However, it is important to note that individuals from all stakeholder groups believe that wetland protection is a significant goal for Door County. When asked to define what the goals of a wetland protection program should be for the county, survey respondents had many similar ideas:

        In short, people interviewed share a similar vision for Door County. They want to protect wetland resources for future generations and they look, at least partially, to government to play a role in wetland protection efforts. The next section describes the issues surrounding current wetland protection efforts in Door County.

      Issues identified with current efforts to protect wetlands

        Regulatory maze

        Interviews suggest that several issues confront current efforts to protect wetlands in Door County. Table 3-1 lists all issues identified as important by at least 10 percent of people who were interviewed or who responded to the written survey. The table lists the issues in order of the frequency by which they were identified. The table also identifies the stakeholder group that most often reported the issue, and the intensity of the feeling associated with that issue. When an interviewee noted something as a problem four or more times during the interview, the intensity of feeling for that problem was coded as high; factors identified two or three times were coded as moderate; factors identified once were coded as low.

        Not all people interviewed identified the same issues, but a nearly universal issue identified by interviewees regarded the multiple regulatory authorities with jurisdiction over development in a wetland. As shown on Table 3-1, the complicated layers of regulations were identified by nearly everyone in interviews or on surveys as a key concern.

        The maze of federal, state, county and local wetland regulations confuses and frustrates citizens, according to 95 percent of respondents. As noted by one state agency official, "I have to believe there's a better way of doing business. If the process was simpler, it would lead to more effective protection of wetlands. The process is very confrontational from the beginning. The Corps may give its okay [to build], but then people get nabbed by the DNR or the county. It's because different jurisdictional decisions were made. The result is frustration all around."

        "There are so many options. Sometimes, it depends upon who gives you a permit first. If you get a permit first from the Corps, then the DNR may just sign off as a matter of course. If you go to the county, they may stop you from building."

Table 3-1:   Issues with Current Wetland Protection Efforts in Door County

        Developers also believe that the regulatory overlay of federal, state and county requirements is a problem. One developer noted, "Developers crunch the numbers to see if a project makes economic sense. If it makes sense, we do it [develop the project]. Where we run into problems [with government] is where the rules change or when they are nebulous."

        A citizen agreed, "I believe that developers simply want to know what the rules are. They want a simple answer to whether the lot is buildable or not. They want to know what rules apply and they want to know the rules are applied fairly to everyone."

        Environmental group members generally concurred with the complaint that the regulatory maze was a key issue. As one environmentalist responded, "Confusion breeds abuse by people who know how to work the system, therefore, it would be to the wetland's advantage to make the process simple, administered by one agency, with no room for compromise."

        Some environmentalists and property owners, however, were not so sure, as evidenced by these comments, "Honestly, I'm not worried about the cumbersome-ness of the procedures. Maybe it's more protective to have three agencies involved in wetland regulation." And, "I don't necessarily think the permitting process should be more efficient or less-time consuming. I think it should be more protective. Maybe more time would give people a chance to consider the appropriateness of what they plan to do."

        Overall, however, people pointed to the complexities of the current regulatory system as a major obstacle to running an effective program.

        Inadequate enforcement by the Army Corps

        When people who felt that the Corps wetlands permitting program was inadequate were asked why they felt that way, most often people pointed to the inability of the Corps to protect small wetlands. Some people who were interviewed pointed to the Corps regulatory program created under Section 404 of the Clean Water Act as problematic. They noted that general permits, especially Nationwide Permit #26, which permits filling of wetlands of one acre or less, result in the piecemeal destruction of wetlands in Door County. As one interviewee noted, "The Corps regulatory process permits wetlands alteration a little bit at a time. It's easy to say on an individual basis that it's only a little bit of land and permit it, but the cumulative impact is significant."

        Another commented, "the 404 process is basically telling people that indeed you can do something in wetlands. Wetlands are vaguely referenced in the law and all you have to do is ask for permission and they [Corps staff] will give it to you."

        Corps staff agree that the nationwide general permits are designed to streamline the regulatory process. As one staff noted, "The nationwide permits were designed to address things that were relatively minor. Before 1986, we allowed up to 10 acres under [a] nationwide permit. Nationwide Permit #26 now says that you can only fill up to 1 acre...My job is not to save wetlands. It's to evaluate the impacts of permit actions on the wetland resources." Another Corps staff official commented, "You know what the result is going to be (with a nationwide permit), but it's still a process that you have to go through. We're there to expedite the process for citizens. Permitting these small fills [of wetlands] still falls within our goal of no overall technical loss of wetlands."

        Other people who were interviewed did not directly address nationwide permits, but generally felt that the Corps staff were more likely than not to grant permission to fill wetlands in Door County. These comments are typical of the ones received during interviews:

        Still other stakeholders interviewed pointed to resource constraints as limiting the ability of the Corps to run a more effective regulatory program. One county staff member commented, "They're not well set up to be involved. My perception is that they are covering too big an area and that they have limited manpower. They keep looking for ways to reduce their workload. I believe that in the process of reducing their workload they skimp on their duties."

        U.S. Army Corps of Engineers Field Office staff in Green Bay also feel that they have limited resources to deal with the complexities of the Section 404 program. While paying more attention to larger projects affecting wetlands makes sense from an administrative point of view, it may ultimately work at cross-purposes to county goals to protect sensitive environmental areas. As one Corps staff person noted, "We're getting more work to do with less people. Time is not available to do a quality product from an ecosystem aspect. Nationwide permits were designed to get permits off of our books quickly so that we would have more time to focus on bigger issues."

        If the lack of time works to constrain the Corps staff to operate as effectively as they might wish, another resource constraint has to do with the need to acquire more training. Several stakeholders interviewed, including staff from all levels of government, indicated the need for additional training to accurately identify wetlands and to better understand the consequences of wetland alteration. Inadequate time to acquire technical competence in the field was noted as a limitation of the permitting program.

        In sum, most people interviewed perceive that the Corps is not as protective of wetlands as it could be. First, because small wetland areas fall through the regulatory cracks of nationwide permits; second, because the Corps staff are not oriented to protecting wetlands; and, third, because the Corps staff are faced with resource constraints that limit their effectiveness.

      Inaccurate wetland maps and different wetland delineations

        Mentioned just as often by interview and survey respondents as inadequate wetland protection efforts by the Corps were the issues of inaccurate wetland maps and differing wetland delineations among federal, state, county and private delineators. These issues are grouped together because they both deal with identifying wetlands for the public.

        The issue of inaccurate wetland maps comes into play in wetland protection in several ways. The DNR conducted an aerial inventory of Wisconsin wetlands and produced the first wetland maps in 1982. The maps identified wetland areas of 5 acres or more. The maps were part of the state's effort to describe wetlands by type across the state and to provide assistance to county and municipal governments in regulating shoreland-wetlands. The Wisconsin Wetland Inventory Maps were revised in 1987 to identify wetlands of two acres or more.

        While these maps attempt to provide a comprehensive view of Wisconsin wetlands, their use on the ground is limited for three reasons. One reason is that the maps do not identify small wetlands. Even with the identification of wetlands of 2 acres, it very difficult to determine if any one piece of property is in fact located in a wetland. The scale of the maps makes fine determinations of wetland boundaries impossible-the maps lines could be 50 feet across. A second reason is that mapping errors occur with aerial photography. Some wetland areas identified on the Wisconsin Wetland Inventory are not wetlands. A third reason has to do with wetlands themselves. Wetlands are dynamic and changes in land-use patterns may alter the shape of adjacent wetland areas. The accuracy of the area delineated as a wetland on the map (either to identify a wetland that isn't there or to miss small wetlands that are present) serves as a constraint in running an efficient and effective wetland program in Door County.

        This causes confusion when the wetland boundaries identified on the map are used to make regulatory decisions, such as in the shoreland-wetland regulatory program and also in the Door County Zoning Ordinance. Both regulatory programs use the Wisconsin Wetland Inventory Maps as the basis for creating wetland zones. Explaining to the public that the mapped wetland zones may not be wetlands, or that areas other than those marked as wetlands might still be a wetland subject to regulation creates frustration and adds to an already complex mosaic of wetland protection requirements.

        For these reasons, it is not surprising that many people interviewed expressed concern with the use of the Wisconsin Wetland Inventory Maps. This is especially true for county staff who must often deal with the mismatch between what is on the Wisconsin Wetland Inventory Map and what they find at the site. The following comments were made by members of the county zoning and planning staff, as well as elected officials in county and local government.

        This comment illustrates both the complexities of wetland regulations (which government or governments regulate wetlands and which laws and/or ordinances apply) as well as the issues around using the Wisconsin Wetland Inventory Maps to determine wetland boundaries. As noted in Chapter 2, Door County prohibits building of homes and commercial structures in wetland zoning districts as part of its zoning ordinance. Districts zoned as wetland are based on the Wisconsin Inventory Maps. The next comment also considers the issue of county wetland zoning districts in relationship to the maps.

"The DNR maps are the basis for the county wetland zoning districts. We don't have the ability to update the map without doing rezonings."

      Wetland zoning districts and the wetland setback provision

        In some ways solving, and in other ways compounding the problem associated with wetland maps is the newly adopted wetland setback ordinance for the county. (See Chapter 2 for a discussion of the ordinance.) The language in the ordinance requires that buildings and structures in SF20 and SF30 (single family residential) zoned districts be set back 10 feet and buildings and structures in all other zones be set back 35 feet from a wetland. More important, the wetland setback amendment to the county zoning ordinance states that "all wetland boundaries shall be determined by field verification by Door County Planning staff" (Door County Zoning Ordinance, 1998: 95). This language is different from language that defines a wetland zoning district in the same county zoning ordinance which states, "Except as may be altered by zoning district amendment, the wetland district boundaries coincide with the wetland boundaries shown on the most recent version of the Wisconsin Wetland Inventory Maps..."(Door County Zoning Ordinance, 1998: 7). In other words, wetland setback requirements apply to all wetlands (mapped and unmapped), while wetland zoning districts are defined by the Wisconsin Wetland Inventory Maps.

        The setback ordinance establishes the right of the county through its zoning ordinance to regulate building on wetlands, thus solving the issue of what to do with an unmapped wetland. The ordinance, however, complicates the ability of the public to understand whether or not they have a buildable lot, or what portions of that lot are buildable. County planning staff collectively refer to these unmapped wetlands in the setback portion of the zoning ordinance as "small w"wetlands. Their status is not the same as for the "big w" wetlands in wetland zoned districts.

        Wetland delineations

        Another concern related to identifying wetlands noted by people interviewed for this study has to do with the different delineations that occur between federal, state, county and private delineators. This concerned a number of interviewees who felt that different interpretations about where the boundaries of a wetland occur lead to delays in the building process, opportunities for legal battles, frustration on the part of the public and interagency conflict.

        Different interpretations of wetland boundaries occur largely because agencies have different definitions of wetlands. The Corps definition of a wetland requires the presence of three elements: water, saturated soils and hydrophytic vegetation. The DNR defines a wetland as "...an area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions" (Kent, 1994: 123). The state interpretation of a wetland may result in a more inclusive definition. However, conversations with administrators from the Corps and from the DNR suggest that the definitions are not so far apart as to cause widely different on-the-ground results. Administrators from both agencies suggested that the two definitions should still end up with the same boundaries 90-95 percent of the time.

        What also determines delineations is the judgement of the delineator. A delineator who identifies a wetland boundary from soils maps and other data in the office may arrive at a different result from a delineator who does a field investigation. Even if two delineators do field investigations and use the same definition of wetlands, they may arrive at slightly different results.

        These slightly different delineations may pose a problem for property owners. People who want to build on a piece of property and who have very little leeway to alter their building plans, may not want to relocate their home (or other building) even as much as 20 or 30 feet. Whatever the reason, different delineations were often listed as a barrier to effective and efficient wetland protection in Door County.

        Political constraints connected to development

        More than three out of four persons contacted for this study reported that wetland protection efforts were less effective because of the demand for land for development in Door County. Every environmental group member and elected or appointed county or local official interviewed identified development pressure as a concern. State, county and local staff interviewed for this project also frequently mentioned development demand.

        One interviewee commented, "The only thing I have seen is the 'political face' of the county. An awful lot of town and county officials succumb to political pressure for development." Another noted, "If the town board wants to protect wetlands, it can just say no to development." "We have a lot of development by people who have become land speculators (such as previous farmers)." One survey respondent put it this way, "Land is valuable in Door County so there will always be great pressure from owners, developers, architects and others to develop it. The Chamber of Commerce continues to stress the importance of tourism and as long as we have tourists, there will be great pressure to develop questionable properties."

        However, some interviewees feel that groups opposed to development are achieving success in public hearings. An environmental group member noted that, "the attitudes of citizens are better. People are more aware of environmental issues. Local governments are a bit more willing to fight for wetlands. The local community is where you're going to get the best results." "We're beginning to see what it takes to mobilize the voters. People with second homes here don't vote. We can apply political pressure."

        Lack of public understanding of wetlands

        One respondent noted, "We should communicate the value of the diversity of wetlands." Other comments were similar, "I want to improve the wetland-just because there aren't any ducks doesn't mean its not a valuable wetland. Citizens don't understand that there's value in keeping it as it is." "People don't see the value of wetlands. They don't understand that wetlands are crucial to our water supply."

      Other issues with current wetland protection efforts

        Lack of resources

        As shown in Table 3-1, several other issues were identified as important constraints in creating a more effective and efficient wetland protection program in Door County. As noted in the section that discussed the activities of the Corps, some persons believe that inadequate resources hamper the ability to better protect wetlands. This issue was most frequently mentioned in the context of Corps and DNR staffing resources, but also noted for the county, especially regarding preparing complete permit application files.

        One survey respondent indicated that, "agencies involved in permitting should be staffed with adequately trained personnel and given enough time to ensure the application is complete, thorough and contains sufficient information for the government officials to make an informed decision. It appears that a number of these agencies are often understaffed, rushed for time, and do not always provide complete information for the RPC [Resource Planning Commission] and/or BOA [Board of Adjustment]. Resources such as time, energy, personnel and money, spent on decisions based on inadequate or incomplete data that lead to appeals and sometimes litigation could be better spent to expand staff in these agencies and provide wetland education for the public."

        Financial resource limitations were identified at the county level when people discussed the ability of the county to permanently acquire wetlands.

        Lack of DNR enforcement authority

        Another issue that was prevalent among state staff and officials and environmental groups was the inability of the DNR to force the Corps denial of a Section 404 permit when the DNR denies water quality certification under NR 103. As discussed in Chapter 2, NR 103 recognizes the ability of the state to review projects that may affect water quality under Section 401 of the Clean Water Act. Wisconsin had this authority for surface water projects, but extended it for wetland activities through NR 103 in 1991. However, the ability to deny water quality certification does not mean that the state can reject a federal permit. Thus, if the Corps grants a permit under its Section 404 authority and the DNR subsequently denies water quality certification, it remains up to the Corps to then deny the permit. One DNR official explained it this way, "If the DNR denies water quality certification and the COE issues the permit, if the applicant is smart, he/she will go ahead and alter wetlands anyway. Currently the DNR has no enforcement authority." An environmental group member commented, "The 401 process is not a permitting process. If you [the applicant] ignore it, there's no enforcement power of the DNR through NR 103."

        However, the issue of state enforcement authority within NR 103 is addressed in part by NR 103 procedural requirements. As one respondent noted, "NR 103's strongest aspect is the 'practicable alternative' requirement. If [the] state water quality certification person does a site visit and finds that John Smith wants to go through a wetland to build a driveway or other structure, the DNR could recommend that the water quality certification be denied because Mr. Smith has a practicable alternative. He could divert from the wetland."

        Corps staff also note that state water quality certification requirements are persuasive tools in discussing projects with developers seeking to develop wetland resources. One Corps official noted, "When I talk to people who want to develop on a wetland, I present them with the fact that the DNR probably won't grant them a water quality certification...That's made our job much easier. If presented correctly, I can avoid and/or minimize the building on wetlands...As important as the permit is, you really need to understand how many wetland areas have been saved by my talking to prospective developers and letting them know that the DNR won't give them water quality certification."

        As of this writing, statutory language that would give the DNR enforcement authority under NR 103 is part of a wetlands compensatory mitigation bill to be introduced in the Wisconsin State Legislature this year. A previous attempt at statutory change was unsuccessful.

        Overzealous or unfair enforcement of existing regulations

      Developers and some citizens strongly believe that they have been treated unfairly by government officials operating various components of wetland regulations. While some of the case studies in later sections of this chapter describe the process and how/why it became frustrating, some comments are useful to include here.

        Two respondents identified concern with how they were treated by Door County zoning administrators. The bulk of their concern centered on discrepancies between what the zoning administrator delineated as a wetland and what they believed to be a wetland through letters from the Corps or as a result of private delineations.

        One interviewee felt that the county did not provide him with a fair process. He mentioned that the Corps conducted a review of his site and determined that no wetlands were on his property, confirming an earlier Corps determination. "The County should be more open-minded to finding workable solutions. I have the feeling that they don't want me to build, period. It's not just about protecting wetlands, because I know of similar cases that have gone through the county process without any trouble."

        Another comment related to the level of customer service provided by the county. "The county needs to realize it has a customer service problem. I've left messages and never had return phone calls. County planning staff have problems dealing with citizens. They need some type of process that gives voice to the common citizen."

        A developer noted a similar concern with the DNR. He described a situation that he believed to be unfair. In this case, three delineations were made on his property. Delineations by the Corps and the private delineator were very close, but the DNR determined that the property was almost all wetland. He was subsequently denied a building permit from a village in the county. "In Door County, there are people who don't want to see another building permit ever issued. The DNR can act arbitrarily like this because it satisfies a lot of people. But, it's not the right way to do things."

        On the other hand, two stakeholders noted that the regulatory staff failed to follow-up on permitted activities to ensure that permit requirements were followed. Three stakeholders commented on governmental actions that happen after a wetland is altered. Several stakeholders noted that wetlands on agricultural lands are treated differently from wetlands on other private lands, creating yet another type of inequity.

        Strategies to improve wetland protection in Door County

        Table 3-2 presents strategies identified by survey and interview respondents for improving current efforts to protect wetlands in Door County. Strategies are listed in descending order-strategies that were most commonly identified appear at the top of the table. The top six strategies are discussed in this section. Some specific strategies are discussed in the next chapter.

        Increase public awareness of wetlands through education

        Without question, most people believe that more public education is needed in order to improve current wetland protection efforts in Door County. Education was the most frequently identified strategy in both surveys and interviews, with 90 percent listing education as one of the top three strategies for obtaining a more efficient and effective wetland protection program. Some responses suggest that education of the general public is needed; others suggested educating local and county officials, farmers, real estate agents and other key stakeholder groups. Still others felt that it was important to educate children about the value of wetlands.

        The following verbatim comments present the views of people participating in the study toward increasing public awareness of wetlands through education:

Table 3-2:  Strategies for Protecting Wetlands in Door County

These comments also enforced the need for the county to pursue education strategies.

        As these comments indicate, stakeholders who were interviewed and who provided survey responses clearly feel that education is a crucial component to wetland protection efforts in Door County. Because of the wide-ranging suggestions regarding whom should be educated, it is likely that several educational tactics will need to be employed. For example, public forums that highlight what a wetland is and that document its economic and environmental value may be one approach. Printed communication about wetlands and various regulatory requirements would also be appropriate as an educational strategy.

        Connections between teachers and people who care about wetlands could be made. Special training for real estate agents as well as education more specifically directed to farmers might be useful. Since other comments relate to local and county officials, educational efforts might begin with elected officials and key local and county staff.

        Create a single location for wetland regulatory processes

        A second strategy identified by 80 percent of all respondents representing all stakeholder groups is to streamline the regulatory processes protecting wetlands in Door County. Most people weren't certain how to accomplish this "one-stop" regulatory process, but nevertheless believed that creating a process that was seamless to the public would certainly be more efficient than the current system. It is not surprising that so many people believe that simplifying the process for the public would be a step forward. As shown in Table 3-1, 95 percent identified regulatory complexity as a major issue.

        One state official observed, "I believe regulators could utilize general permits, memorandums of agreement, delegation of authority or other administrative tools to establish a one-stop shopping center. It would be one place where citizens could get information about wetlands and one office that would issue a document that covers all of the regulatory requirements for wetland protection." Other comments were similar: "A one-stop shopping idea has merit provided you have a citizen advisory board, but I think the standards must be very clear. These [permitting] standards should be set by the COE, the DNR and the county." "Have uniform federal/state/county permitting (one stop shopping). It would diminish the likelihood of one agency permitting an action while another takes a different position."

         A few stakeholders, however, believed that the DNR should run any streamlined program. One such stakeholder commented, "I shudder to think what a "user-friendly" one stop shopping for wetlands permitting would mean. DNR needs to rule with an iron fist. Don't give it to the county. Their performance is worse than lousy."

        When asked for a specific way to accomplish a streamlined process, comments ranged from "I have no idea," to "increased coordination among agencies" to the seeking by Door County of a programmatic general permit or a Special Area Management Plan through the Corps. Comments from federal and state officials regarding these strategies appear in the next chapter.

        Pursue the permanent acquisition of wetlands or other financial incentives

        Another strategy that was mentioned by all types of stakeholders is to simply acquire wetlands and other sensitive environmental areas and/or to provide financial incentives to landowners to continue to protect private wetlands. 75 percent of all respondents identified the permanent acquisition of wetlands through conservation easement, outright purchase, the purchase of development rights or other acquisition tool as an important strategy to more efficiently and effectively protect wetlands in Door County. As one interviewee put it, "If you truly want to protect it, buy it! I think PDRs [Purchase of Development Rights] are a good thing." Another suggested, "Purchase and/or place in trust some of the more vital and sizable wetlands." A developer commented, "Financial incentives to wetland owners to protect their wetlands is the most important strategy to pursue. Supplying financial incentives is the most palatable strategy, and may be long term if deed restrictions are added to the incentives."

        An environmental group member offered these comments: "Why not purchase wetlands or purchase development rights? Our group does that, but we're not specifically focused on wetlands. Why not establish a wetland land trust? Wetlands that surround an upland island could be protected by buying the development rights to the upland area. You would protect the wetlands from development, because you've purchased the buildable land. Local governments could get money through general revenues. Towns could also purchase development rights. Towns could target these lands and then transfer or donate these rights to the Land Trust or other organization."

        A survey respondent also challenged towns in Door County to pursue acquisition strategies: "Identify at the town level any vulnerable or potentially threatened wetlands, such as wetlands which surround an island of uplands. Then use town funds to acquire development rights on these small upland islands. Rights could later be transferred to a land trust."

        A regional official agreed, "The first step is to identify wetlands that are critical. The county needs to look at the critical resources and aggressively seek to protect them. These wetlands should be put into permanent acquisition. Get a Purchase of Development Rights on them or a conservation easement."

        Some suggestions for financial incentives included compensating landowners through tax inducements. This interviewee suggested that wetlands could be protected in a similar way as forests in the state are protected. "Financial incentives to wetland owners are important. Perhaps there could be something similar to the managed forest law. People could receive a tax break on their land if they didn't build on it. Wisconsin could pass a similar law-only for wetlands: the wetlands management law. There would be a tax incentive if people would enroll for 25 years to protect their wetlands."

        An issue with this strategy, of course, is how to pay for financial inducements for landowners or acquisitions of wetlands. When probed as to how they might pay for these programs, responses varied from the establishment of a county fund labeled the wetlands protection fund, to town revenues to state or federal programs. One county official was dubious as to the willingness of the public to accept additional tax burden to finance these programs. "We don't have any indication that the people of Door County would support efforts to buy PDRs or otherwise pay to preserve wetlands. My sense is that they would say no, because people don't want to pay more taxes."

        Establish a wetlands citizen advisory board

        65 percent of stakeholders interviewed for this study observed that citizens should be more involved in the process of wetland management. These comments included strategies to establish a citizen advisory board or the creation of some other type of citizen oversight of the wetlands permitting process. Many people who felt that increased community involvement in decisions about wetland protection would lead to a more efficient and effective program saw citizens currently as left out of the process. They also saw that an advisory board could play a number of roles, including oversight of and input into decision-making, stewardship, public education, landowner assistance and conformity in wetland delineations.

        While what this advisory board or wetlands committee might look like is not well described, it does seem clear that many stakeholders want citizens to take a more active part in wetlands management.

        Eliminate wetland zoning districts and/or improve the wetland maps

        Half of all stakeholders believe that a key strategy for improving current wetland protection and permitting processes is to either eliminate the wetland zoning districts and/or improve the inventory of wetlands in Door County. The previous section noted the issue with the accuracy of the Wisconsin Wetland Inventory Maps-the two acre wetland mapping misses small wetlands and the sole reliance on aerial photography also maps some areas as wetland that aren't on the ground.

        Many interviewees felt that wetland zoning districts could be eliminated without harming the county's regulatory program. One county staff person noted, "Door County should use the maps as a tool and then do their own delineations. They could note the mapping error and send it to the DNR. The DNR could get the map fixed." Another noted, "I wonder whether it's possible to get rid of the wetland zoning districts and just have regulations and setbacks? This would avoid forcing people to rezone their property. The county would keep the wording of the ordinance, but get rid of those lines on the map." Another county official was more certain: "Don't have wetland districts. Take the $30 fee, go visit the site and make sure it meets the setback requirements." A property owner agreed: "Get rid of wetland zoning districts-keep the regulations, but tie them to field investigations rather than map lines."

        Perhaps the best depiction of the situation came from a county official who believes the county should choose between two strategies. The first would be to "Adopt a truly 'pure' approach. Get rid of the wetland maps and use them only as a reference. Try to protect every wetland, regardless of size or extent of wetland values. Therefore, no matter what, the county would protect it." This is much in line with the elimination of the wetland zoning districts. The county would then be protecting all wetlands. However, the county official offered a second choice, "Adopt a compromise approach. Embrace total adherence to the maps. Make decisions from the map and if we find a wetland when we inspect the property, too bad. We'd know going in that if a wetland doesn't show up on the map, so be it." This approach would alleviate the frustration property owners have who rely on the maps and the wetland zoning districts indicated on those maps for guidance when making buying or building decisions.

        Other respondents focused on more accurate delineations as a way to address these concerns. One person argued that the County should "accurately delineate and map all wetlands (large and small) and wetland corridors with adequate consultation and field work by a team of wetland experts...perhaps a committee of resource specialists from each of the public and private wetland permitting agencies such as the Corps, Door County Planning Department, Soil and Water Conservation Department, the DNR, private soil engineers, etc. could do this work." As put in one survey, "Conduct an independent and comprehensive inventory so that all wetlands and related areas are clearly identified for protection."

        Identify important wetland areas in need of protection

        Half of all stakeholders feel that Door County needs a clearer picture of what wetland areas are in the county. A careful inventory of wetlands would help address the issue of delineation and would also help county officials to prioritize areas most in need of protection. As one official commented, "What we need to do is to identify all sensitive and critical areas. Then put a star or some indication on the county map. That would be a tip-off to zoning administrators to take a hard look at the property and deny a building permit." Another noted, "Look at the big picture and put more time and effort into protecting the larger, more sensitive areas. Forget about hassling individuals of already developed property." Regarding the need for a wetland inventory, a survey respondent wrote, "Delineators have to put a line in somewhere. The line is never straightforward to determine. It's both an art and a science. I know, I've walked some of them. It's very hard to identify a wetland. I can see where people have trouble."

        Encourage towns to adopt the county zoning ordinance

        Roughly one third of all stakeholders participating in the interview and survey components of this study noted the inequities created between areas of the county under the county zoning ordinance and areas of the county without county zoning. As described in Chapter 2, the Door County Planning Department prohibits building in unincorporated areas where wetland zones are present and requires a building setback from all wetlands. Towns that have not adopted the county zoning ordinance rely solely on the Corps Section 404 permitting program to regulate development on inland wetlands (those wetlands that are not regulated under county jurisdiction as shoreland-wetlands). If towns adopted the county zoning ordinance, wetland regulation would be more uniform in the county in that all unincorporated areas would be under county zoning. (Villages and cities have their own zoning.) One stakeholder noted that all towns should have an initial review of wetland permits.

        One county staff person observed, "I'm fairly confident that wetlands are being protected for our areas. I'm not confident about the interior areas of unzoned towns. In the unzoned townships, the COE is the only permit you need." Another interviewee agreed, noting that, "presently, about 40 percent of the county is not under the county ordinance and is not under the jurisdiction of the zoning requirements. I don't know about [wetland] protection these parts of the county."

        Working with towns to adopt county zoning may require on-going discussion and dialogue between the county and town boards, as well as the staff in both governments. As one citizen commented, "Towns will fight you [Door County] should you decide to increase the county's authority over inland wetlands. Farmers would feel the impact of wetland regulations and not like it. It will be tough to get the towns to support further regulation."

        Other strategies

        A few stakeholders made very specific suggestions for improving the process undertaken by the County for approving building permits and variances on building permits. One stakeholder recommended that the county ensure all permit applications were complete and contained enough information to enable the RPC or the BOA to make fully informed decisions. The interviewee added, "The current 28-day waiting period procedure requested by the towns and effective March 1, 1998, was a step in the right direction. However, experience has shown that more time is needed for town planning committees and town boards to adequately review applications requiring public hearing and to give concerned citizens a chance to become familiar with the case and time to prepare to support or oppose it. Three to six months might be a better time frame."

        Another suggestion was for the county to extend the time allowed for public review of applications. "Currently, the Planning Department accepts additions to an application and written testimony until 4:00 p.m. on the day of the hearing. This does not give the public (or the Planning Department, RPC or the BOA) adequate time to become familiar with the complete and final application or to prepare their support or opposition to it. Rather, a deadline of 4 p.m. at least 3 or 4 days before the hearing might encourage broader citizen participation, better decisions by government, and fewer appeals." The same stakeholder suggested that the county notify neighbors within a wider range by personal written notice of any proposed wetland alteration, adding that, "Currently, notice of a public hearing for re-zoning of a wetland to residential SF-20 or SF-30 goes only to those neighbors within 300 feet of the boundaries of the parcel in question."

        Another stakeholder noted problems with culverts in altering wetlands and suggested oversight on the proper installation of culverts, including new culverts or replacement of old culverts. An inventory of culverts might be the first step. This stakeholder added, "DNR approved 'Best Management Practices' should be used during any logging in forested wetlands, and that there be some oversight on the roads built for logging in wetlands. Road building for logging purposes require few or no permits, as opposed to roads for residential development, yet logging roads often establish the basis for later roads used for development. The goal would be to not allow logging to serve as an opening to permanently develop wetland areas."

Focus groups  (Back to TOC)

        In June and July of 1999, four focus groups of persons having an interest in the wetlands protection process were conducted. Broadly, the purpose of these discussions was:

• to validate the information collected elsewhere,
• to provide an in-depth understanding of the challenges that different stakeholders face, and
• to explore ideas to improve the ways in which wetlands in Door County are protected.

        The four focus groups were assembled to include representatives of all perspectives on wetland protection. These perspectives included governmental officials at the federal, state and local levels; environmental groups; local associations; wetlands delineators; and realtors. Prospective participants were identified and invited to take part in a 1½ hour focus group discussion at the Maritime Museum Conference Room in Sturgeon Bay. The number and affiliation of the participants for each session are described in Appendix C.

        Upon arrival, each participant was encouraged to complete a 6 question written questionnaire that paralleled the focus group discussion questions. This encouraged each person to begin to think about the issues that the group was to discuss next while allowing the researchers to obtain written feedback to our questions. The question sequence moved from consideration of one's own values regarding the importance of wetlands, to identification of the strengths and weaknesses of the current wetland protection system, to development of proposals to improve the efficiency and effectiveness of wetland protection.

        Two members of the project team transcribed the comments as they occurred. Tape recordings were made for the private use of the project team. The sources for the analysis were tape recordings of each session, observer notes, and facilitator notes. Themes were identified by analyzing the frequency of occurrence of particular kinds of comments along with noting the number of different stakeholders who made comments related to other stakeholder groups. The researchers also noted the intensity of feeling about a particular issue along with the degree of consensus observed around the table. In the third and fourth groups the researchers had the opportunity to test the validity of certain comments made in the previous two groups.

        The following paragraphs address specific issues identified by the participants in response to the questions posed by the facilitator.

        Importance of protecting wetlands

        Participants were asked to rate, on a scale of 1 to 10 with 1 representing not at all important while 10 equaled absolutely important, how important the participant felt it was to protect Door County wetlands. Across all four groups the average response was 9.34 (n=37), with the lowest rating a 7 and about half of the participants answering 10. Persons representing governmental agencies (Corps, DNR, Door County, or local government) had the greatest diversity of opinion.

        All groups recognized that Door County's tourism and land development were important features of the region and that realistically all wetlands could not be completely protected. Thus, while protecting wetlands was an important value, participants recognized that this effort to protect must involve compromise and acceptance that some development would inevitably occur.

        Most often, those giving a lower level of importance cited the tradeoffs between strongly protecting wetlands and the inevitability of ongoing development and the need for protecting public safety. The comment "it depends" frequently punctuated a person's answer. They recognized that some wetlands were more important to protect than others, and that the term "protect" did not always mean 100% protection.

        How well wetlands are currently protected

        Greater diversity of responses occurred in response to the question, "How well does Door County currently protect wetlands?" While numerous respondents placed themselves clearly in the mid-range, and the average rating was 5.6, participants who identified themselves with an environmental group tended to feel that less protection occurs, while landowners, builders, and some regulators clustered toward the more protective end of the continuum.

        Again, "it depends" resonated throughout the discussion, this time relative to the type of wetland being considered. Many felt that Door County is more protective than neighboring counties and that, compared to a few years ago, wetlands are more strongly protected today than ever before with greater numbers of developers, landowners, and others realizing their significance.

        The following paragraphs discuss in greater the depth the ways in which current wetland policy and regulation seems to succeed along with areas in which participants identified weaker protection of wetlands.

        Current regulatory processes and outcomes that are effective

        Participants were asked to come up with current regulations or programs that they felt did a good job of protecting wetlands and were not a problem to implement or utilize. When compared to other questions posed to the group, this question met with less animated discussion and more difficulty for participants to identify effective processes. In sum, several groups noted the following points in response to our question.

        County zoning of wetland areas

      Protection of larger wetlands

        Throughout the sessions, participants felt that regulatory processes achieved better protection for wetland areas of greater than two acres as opposed to smaller wetland areas.

        Multiple layers of regulation

        The multiple levels of regulatory responsibility and review, while also viewed as a problem, also provide checks and balances which participants felt afforded greater protection to wetlands, especially large wetlands. Others disagreed in that smaller wetland areas often went unregulated despite all the regulations. Group members often felt that regulators at many levels seem to have a pretty good understanding of each other's roles and responsibilities.

        Selected regulations

        When asked to identify an effective component or process of current regulations, respondents in several groups perceive that many of the regulations effectively address their own limited areas of focus. Examples included shoreline regulation, the regulation by certain local municipalities, and new, larger setbacks. All groups referred positively to the increase in setback distances. County wetland zoning received support in one group discussion while another group suggested it for elimination.

        DNR processes

        Participants across several of the groups cited the effectiveness of the DNR delineation and water quality certification processes. Field inspections are perceived to be prompt and accurate, larger wetlands are mapped and identified, and delineation has a high degree of credibility. The NR-103 part of the water quality review process received support.

        Issues with the current regulatory system

      Participants were asked to identify 1) regulations that they perceived to be ineffective or inefficient and 2) gaps in the effectiveness of wetland protection. Particular concerns noted in all group sessions are identified below.

        Incremental loss of small wetland areas

        One of the strongest opinions and highest degree of consensus observed across and within the groups dealt with the perceived failure of the current system to deal with wetlands that are smaller than two acres, commonly referred to as "pocket wetlands." This is a particular problem in areas that are not zoned by the County. Even in zoned areas, most pocket wetlands are unmapped due to the scale of the DNR maps.

        Participants also noted the narrow focus on delineated wetlands areas. Rather than making determinations about land use for a wetland complex as a whole, small wetlands are often delineated, leaving a patchwork quilt of development and protected areas, leading to ultimate destruction of the complex.

"None of the regulations consider wetlands as part of a system…the evaluation only looks at that spot inside the flags."

        Finally, participants expressed a concern about wetlands protection in unzoned towns. In areas beyond the shoreland in unzoned towns, the Corps and DNR regulate wetlands, not the county.

        "In unzoned areas, like many of the towns in Southern Door, even though there are DNR maps showing mapped wetlands, the county cannot enforce any prohibition against building…essentially those areas fall to COE for jurisdiction."

        Weak enforcement of existing

        All groups cited weak enforcement at all levels, especially Corps permit conditions or DNR water quality certification.

        Lack of consistency across various regulatory agencies

        All groups expressed, to some extent, frustration that the DNR and Corps used different definitions of wetlands. One group, before ever being asked a question by the facilitator, launched into an animated discussion attempting to define a wetland. As one participant observed, "We're dealing with very complex ecosystems…you can't assign black and white definitions to natural phenomena."

"We [a small northern Door village] have strict zoning and a lot of wetlands. A developer came in and looked at the DNR delineation and decided that he didn't agree. He then brought in the COE, which came up with a different delineation, providing more property for development."

        Regulatory agencies involved in wetland permitting use differing maps to identify wetland areas, setting up inconsistencies in decisions between agencies.

        Confusion due to multiple layers of regulations and responsible agencies

        In all groups, participants felt that the complexity of the permitting processes and associated confusion that it causes hampered protection of wetlands. Some participants observed that conflicting information is given out by the Corps and other agencies regarding delineation of a wetland and regulatory requirements. Others observed that understanding wetland regulatory processes is a function of which agency property owners go to first.

        Inadequate setbacks

        Although setback regulations have recently been adopted, participants in all groups referred to setbacks as still too limited. The use of setbacks that are too small allows building to take place in close proximity to the wetland, causing damage. In county-zoned wetland areas that are not mapped, the county has jurisdiction over setbacks. While the setback amendment to the Door County Zoning Ordinance represents an improvement, many participants felt that requirements could be stricter-perhaps 100 feet instead of 35 feet.

      Proposed solutions: "Quick Fixes"

        Participants were asked to identify changes to the current process that could 1) substantially improve the efficiency or effectiveness of wetland protection and 2) be implemented quickly and relatively inexpensively. Some of these "quick fixes" border on violating the second qualification noted above. Very few solutions to this complicated issue are simple and inexpensive.

        Nonetheless, all groups concurred that the following could have a substantial impact on protecting wetlands.

        1. Enforcement of existing regulations and permits must be strengthened at all levels, especially state and national. While numerous protections of wetlands exist in current regulations (for example, Corps permit conditions and DNR water quality certification), all groups suggested that increased staffing and increased efforts to monitor compliance could increase the extent that wetland loss is prevented.

        One of the clearest themes found in analyzing content and intensity of comments occurred on this topic, where participants almost unanimously felt that there are not enough people to work through the very cumbersome enforcement process. Water quality is a critical driving force for wetland protection, yet once a certification decision is made it is not strongly enforced.

        2. Creation of a simple standardized checklist for a general audience. This quick fix received some degree of support from two of the groups. While credible brochures have been published recently to explain regulations, permits, and processes relating wetlands to the public, it still takes substantial work for an individual to determine the steps to take regarding his or her property. For that and other reasons, many do not take the time to work through the process correctly and those who attempt to do so express frustration at the layers of regulation that they must wade through.

        The checklist should lay out, in a very simplified way, the sequence of steps and organizations to go through in making land use decisions regarding wetlands. This checklist could be coupled with a brief, very simple, direct, factual booklet that provides the basic information necessary for someone to find out about a wetland on his or her property.

        The booklet should emphasize the importance of wetlands and the personal impact that wetland destruction could have on an individual (e.g., drinking water, property value, natural beauty of wildlife). It should include things that a property owner should do or not do to protect wetlands and must be harder-hitting and shorter than current brochures that are available.

        3. Targeted education for selected groups of professionals or individuals who have the potential to influence many wetland decisions. This quick fix is closely related to the prior suggestion, but instead of focusing on the general public, this solution focuses on specific audiences. Certain key groups of professionals have the potential to influence a relatively large number of decisions regarding the protection of wetlands. Realtors research properties and participate in property disclosure. Elected officials preside over decisions dealing with local land development and create policies and plans for land use. Judges and attorneys influence the enforcement of permit conditions and other decisions regarding wetland development.

        Individual landowners meeting certain criteria (location, size of property, those who sell or purchase property) can be targeted for particular education strategies before a purchase is made or property changes hands. This would help with those who reside in Door County only part time.

        Typically, those who attend this type of program are those who are already supportive. Careful consideration must be given to encourage all members of these target groups to participate in education.

        One suggestion for implementing this proposal was to hire one staff person, financed jointly by the DNR and the county, to see that all appropriate permits are applied for and to work with landowners in the process. This staff person would also interface wetland law with other environmental laws and regulations (e.g. managed forest laws). This process would work for all wetlands and might encourage greater protection of pocket wetlands. It would simplify the process so much that it might lead to greater compliance with existing regulations.

        5. Eliminate wetland zoning districts. This "quick fix" proposal was considered quite extensively by one group. Zoning districts, created by the Door County Zoning Ordinance, are the wetland areas that appear on the DNR maps. The proposal is to drop the zoning districts per se, and instead, apply the existing regulations to all areas that are determined to be wetlands by a zoning administrator in the field. Currently, the only zoned wetlands are those on the DNR map, which are 2 or more acres in size. Pocket wetlands, those less than 2 acres in size, are not zoned. Furthermore, there are often discrepancies between the wetland boundaries as mapped and actual field conditions. This elimination of the zoning districts would allow the county to regulate all wetlands found by field observations and would eliminate the problems caused by the mapped wetland boundaries versus the actual field conditions.

"You wouldn't have to rezone anymore, because the wetland would be identified, but you wouldn't have the problems that the mismatch between the maps and the field observations…there are numerous wetlands that aren't ever going to appear on those wetland zoning maps, NUMEROUS!"

        Proposed solutions: long-term proposals

        Finally, participants were asked for proposals that would require significant alteration of existing systems or significantly different approaches. The following ideas were developed independently by two focus groups, receiving a significant amount of consideration.

        Financial incentives

        1. Tax breaks for ownership of delineated wetlands. Raising or allocating existing taxes to protect wetlands was debated, although participants felt that it may not be politically feasible. Offering a tax incentive for ownership of delineated wetlands could be a more viable approach. This tax break would create an incentive for people to go out and get wetlands professionally delineated. For example, a landowner could receive $1.50/acre for a portion of his or her property that had been delineated and then protected.

"If people knew that if they had a wetland on their property and they could go to the assessor and get their taxes lowered, they'd be willing to protect their wetlands."

        Another proposal would essentially remove wetlands (ranging from areas less than an acre in size to larger wetlands) from a landowner's tax roll:

"As the forest crop law does, charge [tax at the rate of] $1.50 or $1.25 an acre, and for all intents and purposes remove that land from the tax roll. It would be an incentive for people to want to go out there and hire a surveyor to put it on the record. This has helped to retain forest land. If you develop it, you [get taxed again at the regular rate.]"

        Financing this option is the challenge. However, another proposal generated in two groups could be an option for obtaining offsetting funds.

        2. Finance wetland protection or mitigation through impact fees. Charging a development fee for any type of new construction could finance wetland purchase or wetland protection. In two of the groups, and to a lesser extent in all of them, participants discussed the belief that the tourism and development industries in Door County are not paying true public cost of the development that they bring. Taxpayers currently pay the cost of harm to wetlands. One participant reflected the sentiments of his group when he stated,

"The real costs that I think about are the ecosystem services that those wetlands provide…the nutrient retention, sediment control, groundwater and surface water quality, and wildlife, and natural beauty. These are things you can put dollar amounts on. When [someone] fills a wetland, he's taking those dollars away from you and me. He's not bearing that cost… wetlands are directly related to quality of life and [contribute to the attractive setting for development and tourism, and those sectors are not paying their fair share.]"

        Land-use planning

        3. Prioritize wetlands and earmark selected wetlands for protection. Create an evaluation system to identify priority and non-priority wetland areas. Some wetlands are highly important; others are desirable to keep but not as critical. Some wetlands are clearly wet, but since most wetlands don't have standing water, it doesn't occur to some people to ask the county to identify wetlands on a property. Therefore substantial losses occur unintentionally. In a proactive manner, this proposal would give high protection to all wetlands, except for when it can be demonstrated (by a credible group of experts) that a particular wetland possesses minimal values. Low-quality wetlands and high-quality wetlands would then be regulated differently. The proposal would require the training of and the forming of a group to make the evaluation. It may require expertise that is not currently assembled in Door County.

        4. Broader-based planning for use of wetland complexes, including environmental impact studies. Rather than focus just on the narrow delineation of individual parcels, look more broadly and systematically at a wetland complex or ecosystem. While the current regulatory process encourages the piecemeal delineation of a patchwork of wetlands, participants in all groups advocated a more comprehensive look at wetlands: include the surrounding ecosystem in the delineation to prevent the destruction of uplands or adjacent land that is important to the survival of the wetland. The environmental impact studies would holistically evaluate the potential impact of proposed development on the entire environment surrounding the site. A field ecologist could conduct the assessment and could oversee the coordination process of regulation among agencies.

        Improve mapping and delineation

        5. Create a definitive, county-maintained digital wetland map of Door County. This map would have a greater level of detail than current maps and would contain delineated wetland complexes as opposed to many small segments of delineated wetland. The proactive creation of a legitimate, unbiased, accurate map would prevent disputes and allow for one definitive wetland map. By making the map available digitally, all interested parties including realtors, developers, prospective and current landowners could quickly access information regarding land. The map should include clear delineation of wetlands within the context of the ecosystem; not bit-by-bit like a patchwork. It would solve the problem of discrepancies between delineations. It should make it easier to work with wetlands that do not have standing water.

        This proposal would be a challenge in terms of time and resources, and achieving the level of detail necessary. The county should maintain the database once it's done.

        Public education

        6. Increase the extent that citizens value wetlands. In the recent past, wetlands were viewed as wastelands whose value could be increased by filling in order to make the property useable. Vestiges of this viewpoint remain. A public education effort geared to explaining the personal benefits that wetlands have might increase the extent to which Door County citizens act to protect wetlands. This education, participants urged, must include reference to things that an individual places a value upon, like having clean drinking water or being able to pay less in taxes.

        Other proposals

        Each of the following ideas were developed in only one group but received a significant level of support within that group:

        7. Purchase critical wetlands and adjacent land. Although The Nature Conservancy is buying Door County land, most other local land aquisition funds are poorly funded. After identifying important wetland complexes (both large and very small), development of those complexes should be prevented through purchase by a public-interest group. Financing this option poses a challenge. Moreover, the privately owned property nearby may increase in value, possibly forcing the neighboring landowner to sell nearby property.

        8. Implement a Door County general wetland permit. Different portions of the county operate under different regulations regarding the development of wetlands. The creation of a county-wide policy for the protection/use of wetlands could both simplify the determination process and do a better job of protecting wetlands and surrounding areas. This proposal could yield more consistency between interior, coastal, and local regulations regarding use of wetlands. Obtaining proper permission from the Corps could be the challenge associated with this proposal. However, implementing it through the state as a grant-funded pilot program may be a viable plan.

        9. Implement a Door County free-standing wetland ordinance. This ordinance, unrelated to zoning, would be more restrictive than Corps or state regulations. This ordinance would cover very small wetland areas as well as larger ones, and would not require adoption by areas that are not zoned. This ordinance would supercede federal and state regulations with regard to wetlands and then the county could restrict permits. This proposal would remove the Corps from the process. Legal permission would be required.

        Summary

        A lot of information and ideas were generated during the focus groups. What are the most important ideas or concerns voiced? At the end of each group, participants identified issues that warrant further attention. In reviewing their comments, several conclusions stand out. The researchers considered the intensity of opinions (how strongly voiced they were), their frequency (how many times issues were noted and the number of different people who made them), and the degree of consensus surrounding ideas that were generated.

        First, a primary issue is the destruction of pocket wetlands. Repeated small-scale filling leads to incremental destruction of larger wetland complexes; this destruction goes unchecked by any regulations. Participants felt strongly that this "nickel and dime" loss of wetlands was pernicious and that persons doing it were largely unaware of the broader impact that their small project would have. Existing regulations neglect these wetlands.

        Even development occurring within regulated wetlands is perceived a problem, unless an area is under county jurisdiction. Members of all groups expressed dismay at weak enforcement of wetland protection by the Corps, with recognition that limited staff and resources along with the high legal costs contributed to the situation.

        In looking for solutions to these key trouble spots, a theme begins to emerge where the County Planning Department, being close to the areas under scrutiny, and being an organization with good credibility, should take on an expanded role in protecting wetlands. Suggestions were made for the county to implement a more systematic plan for land use, one that considers the entire ecosystem of the land being considered for development rather than just a limited land region that fell "inside the flags." A more systematic plan for land use would enable the county and its towns to identify priority wetland complex areas and plan for their protection.

        There was a clear desire to simplify and unify the current regulatory process both for the public and for regulators trying to implement the regulations. Most of the ideas with how to simplify things focused around an expanded role for the county: making the county the point of access for all regulatory permissions sought, or having the county implement its own wetland ordinance which it would then administer.

        Education is critical, according to members of the focus groups. Educating the general public as to the value of wetlands, and educating key stakeholder groups such as local official will improve wetland protection efforts in Door County.

        Finally, wetland protection could improve with the use of financial incentives for both large and small wetland areas. Another proposal received strong support in the discussions: numerous people felt that one of the most promising ideas was to encourage the protection of wetlands through tax incentives, coupled with impact fees for the development and tourism industries.

Case studies  (Back to TOC)

        Introduction

      A series of case studies was conducted to review the current wetlands permitting process. Each of the case studies addresses a slightly different issue. The goal of the case studies is to highlight the strengths and weaknesses of the current permitting processes and provide recommendations for improving the current processes. The case studies provide real-life examples of situations that have occurred or are ongoing within Door County.

        A list of potential case studies was created by the Door County Planning Department. For each potential case study, County and DNR files were reviewed. Additionally, the Zoning Administrator and the local DNR Water Management Specialist provided an overview of their roles in each case, if applicable.

        A total of five case studies were selected for the report. The selected cases were chosen for several reasons. First, each case presented a unique situation. Second, the process involving each case was thoroughly documented. Third, the issues surrounding the case were straightforward.

        Case Study A

        Case Study A (Figure 3-1) is the most straight-forward and least controversial of all of the case study examples. The case provides an overview of the process for petitioning to rezone a wetland. In this instance, the property owner petitioned to rezone the area from a Wetland district to an Estate District. As noted earlier, the DNR Wisconsin Wetland Inventory maps were used to create wetland zoning districts in the county. According to the county ordinance, persons may not build in areas zoned Wetland. However, no mapping technique is completely accurate. Case Study A provides an example of a mapping inaccuracy and the process followed when applying for a petition to rezone.

        In this example, the property owner proposed to build a residence in a zoned area of the county. When the property owner contacted the County Planning Department to obtain information regarding the necessary permits, the Zoning Administrator reviewed the county zoning maps. According to the maps, the property was zoned Wetland, which prevented the property owner from constructing a residence. The property owner stated that while wetlands did exist on the property, the proposed residence would be located on upland. The Zoning Administrator conducted a site investigation which revealed that a buildable upland area did exist on the property. The Zoning Administrator advised the property owner to petition for a rezoning.

        The wetlands rezoning process is detailed in Chapter 2. The process requires the initiative of the property owner and all costs for the rezoning are borne by the petitioner. The costs include the application fee as well as costs associated with obtaining a professional wetlands delineation on the site. In this case, the property owner hired a professional wetlands delineator. The delineation showed that buildable upland existed on the property. The delineation was field verified by the County Planning Department. The County Planning Department then notified the DNR and Corps of the proposed rezoning and provided each agency with a copy of the delineation. Both the DNR and Corps agreed with the delineation and did not object to the rezoning. The results of the delineation and comments from the DNR and Corps were presented to the Resource Planning Committee who recommended to the County Board the rezoning the upland area from Wetland to Estate after holding a public hearing. Approximately three months after the rezoning process began, the County Board approved the rezoning petition.

        This case study illustrates how the county, DNR and Corps become involved in the rezoning process. The County Planning Department field verifies wetland delineations submitted in support of rezoning petitions. The wetland delineation is provided to both the DNR and Corps, providing the agencies the opportunity to comment on rezoning petitions.

        The major lesson learned from this example is that wetlands rezonings should not be viewed in a negative light. While the term "petition for wetlands rezoning" sounds negative and gives the picture that wetlands loss is occurring, this case study illustrates that in actuality the majority of rezonings are correcting mapping errors and do not result in a loss of wetlands. Wetlands rezonings will continue to occur until mapping technology becomes completely accurate. Until that time arrives, the current wetlands rezoning process works well. Even though the costs of correcting mapping errors are borne by the petitioner, the process includes a series of checks and balances. There are several steps in the process that check the decision of a previous agency. The County Planning Department verifies the accuracy of the wetlands delineation. The DNR and Corps may comment on the wetlands delineation and rezoning. The Resource Planning Committee is allowed to investigate the situation and makes its own recommendations. Finally, the County Board of Supervisors acts as the ultimate check on the process and makes the final decision.

        Case Study B

      Mapping inaccuracies are not limited to only instances where upland is classified as wetlands. Errors also exist in which wetlands are classified as uplands. In these instances, the county has very little authority over wetlands because the wetlands are not mapped wetlands. In mapped wetlands, the county ordinance prohibits any alteration of the wetland. In essence, the ordinance prohibits development within wetlands. However, for wetlands that are not mapped, the county's authority is primarily limited to enforcing the wetlands setback ordinance enacted in 1998. For this reason, in these scenarios, the Corps becomes the primary regulatory agency.

        Case Study B (Figure 3-2) provides an example of a situation where wetlands were inaccurately mapped as upland. In this example, the property owner proposed to construct a residence. When the Zoning Administrator reviewed the county zoning maps, the proposed area was located in an area mapped as upland. However, the zoning maps also indicated that areas zoned Wetland were located nearby. After a site investigation, the Zoning Administrator discovered that wetlands were present on the proposed site. In addition, the proposed residence was partially located in the wetland. Since the wetland was not a mapped wetland, the county had no authority in this situation (this case study began prior to the adoption of the wetlands setback ordinance). The Zoning Administrator encouraged the property owner to relocate the residence on the available upland, particularly since sufficient upland was available to meet all the applicable setback requirements. However, since the county had no authority to mandate the property owner to locate the project on upland, the final decision would be made by the Corps.

        The property owner applied for the applicable nationwide permits. The Corps issued the permit and the DNR provided 401 water quality certification.

        Controversy about the project began the following spring. The DNR received complaints about a pond the property owner constructed on the property. The Corps had issued a permit for the pond construction which authorized the owner to excavate for a pond of under 0.5 acre in size partially located in wetlands. A site investigation by the DNR revealed the pond construction was in violation of the permits received and the DNR would not grant a permit for the way in which the pond had been constructed. The Corps supported the DNR's position, stating the pond violated the conditions of the permit that had been issued. The property owner was advised to remove the berm and water control structure.

        During the summer of 1998, the property owner applied to the Corps for a permit to install an electrical utility trench from the residence to a secondary structure. The proposed trench would be partially located in a wetland. The Corps issued the permit. The DNR granted 401 water quality certification pending publication of a Class I Notice. The certification would become final 30 days after publication of the notice. The 30-day delay provided opportunity for public comment on the proposed project.

        Local environmental groups took the opportunity to comment and submitted a Request for a Contested Hearing. The groups questioned the proposed project and also questioned the initial 401 water quality certification issued for construction of the residence, driveway and pond. The request was faxed to the local DNR office. According to DNR regulations and as stated in the public notice, a Request for a Contested Hearing must be served to the DNR Secretary. The mistake did not become evident at first. The local DNR eventually forwarded the copy to the main DNR office in Madison for follow-up. When the DNR realized the request had not been properly served to the DNR Secretary, the deadline for public comments had already passed. In addition, the request did not include all of the required information. Specifically, the request failed to identify if there was a dispute of material fact. With the denial of a contested hearing, the 401 water quality certification was approved.

        This case study presents several issues. One issue involves the Request for a Contested Hearing. Technically, the environmental groups did submit the request within the proscribed 30-days. It could be argued that DNR should have accepted the request since it was submitted within the specified time-frame. Closer review of the Class I Notice reveals how the misunderstanding may have occurred. The notice instructed readers to contact the local DNR office for more information regarding the proposed project. In addition, the notice included a contact name and address to obtain additional information. The notice also specified how a person may petition the DNR for a hearing, instructing readers to serve a petition on the DNR Secretary within 30 days after publication of the notice. However, the notice did not include an address for the DNR Secretary. It seems reasonable if the notice can include an address for a local contact, the notice would also include an address for the DNR Secretary. Since the purpose of the notice is to improve public participation, one method to assist in improving participation would be to make participation in the process as easy as possible. This may be as simple as including an address for the DNR Secretary.

        A second issue again emphasizes the need for accurate wetlands maps. Had the wetland been properly mapped, the project would have remained under the authority of the county. Since the county zoning ordinance prohibits the alteration of wetlands, the project would not have been allowed to occur within a wetland.

        This case study also shows the strengths of the County Planning Department's current policy to conduct a site investigation for all activities requiring a county zoning permit. Had a site investigation not been conducted, the county would not have been aware of the presence of wetlands on the site. Additionally, the property owner may not have realized the presence of wetlands. Even though its authority remained limited since the wetland was not mapped, the County still acted as a check on the wetlands permitting process by notifying the property owner of the need to obtain a Corps permit for the proposed activities.

        Case Study C

        Case Study C (Figure 3-3) provides another example of the importance of accurate wetland zoning maps. Like Case Study B, this case study concerns an instance where a wetland was incorrectly mapped as upland. Unlike Case Study B, this case study occurred after the county adopted its wetlands setback ordinance.

        The case begins prior to the property owner questioning the County Planning Department about the buildability of a lot. Several years earlier, the property owner had purchased land adjacent to his own. The property owner had the land surveyed and divided into four lots. The survey indicated that the fourth lot, the lot adjacent to his own, was primarily wetlands, thereby making the lot unbuildable. The survey noted that this lot would be retained by the property owner.

        Several years later, the property owner contacted the County Planning Department to question the buildability of the fourth lot. After a site investigation by the Planning Department, the county advised the property owner that the lot was wetland. However, the wetland was not a mapped wetland. For that reason, the county's authority was limited to enforcing the wetlands setback ordinance. Primary regulatory authority fell to the Corps.

        The property owner applied to the Corps for a permit to fill a portion of the wetland to create an area that would be large enough for the proposed residence and also meet the necessary wetlands setback requirements. The Corps issued the permit.

        The next step involved obtaining 401 water quality certification from the DNR. In completing an analysis of alternatives, the property owner noted he had received the Corps permit and that the proposed project met all county ordinances. County ordinance required a 10 foot setback of all structures from the wetland in this zoning district. The proposed project required a 50'x50' fill area. The property owner increased the fill area to 70'x70' to meet the wetland setback requirements.

        The County Planning Department submitted a letter to the DNR opposing the granting of 401 water quality certification. The County outlined the history of the lot, specifically noting that the initial survey of the lot indicated it was wetlands to be retained by the property owner. The County also noted the project would destroy wetlands and cause drainage problems in the area as a result of an intermittent stream that coursed through the middle of the lot.

        The DNR denied 401 water quality certification. The denial of 401 water quality certification resulted in the Corps permit becoming invalid.

        The 401 water quality certification process allows property owners to appeal a decision. The property owner appealed the decision claiming a "takings." A "takings" can be defined as a governmental action that results in a citizen experiencing a monetary loss. In this instance, the property owner claimed that denial of the 401 water quality certification resulted in a monetary loss because the lot was no longer considered buildable. This lack of buildability affected the value of the lot.

        To support a takings claim, the property owner is required to provide proof of monetary loss. In this case, the property owner is required to disclose the purchase prices of the three lots that were sold. If those purchase prices equal or exceed the price the owner paid for the land, a takings did not occur. The property owner would have experienced a financial gain. To date, the property owner has not disclosed those prices.

        In addition, there is a potential buyer for the fourth lot. The property owner who purchased the third lot has offered to purchase the lot. The buyer understands the lot is unbuildable because of the presence of wetlands. The buyer has indicated an interest in keeping the lot in its natural state and using the lot as a buffer between the two developed lots. However, the buyer is only willing to pay fair market value for the lot. Fair market value takes into account the presence of wetlands and the unbuildability of the lot. The current property owner has not indicated a willingness to sell the lot at that price.

        To date, this case is ongoing. For the appeal to proceed, the property owner must disclose the purchase prices of the three lots he sold. In addition, the property owner has proposed another alternative. For that proposal to move forward, though, the property owner must drop his appeal with the DNR because the agency only allows one action concerning a specific property to be ongoing. This prevents the agency from issuing conflicting decisions.

        Case Study C presents some interesting issues. First, the case study emphasizes the differing wetlands regulations between agencies. Some may argue that the Corps should not have issued a permit in this instance since the area in question was definitely wetlands. However, the Corps functions within the boundaries established by Congress. The Nationwide Permitting process typically approves projects because they impact small amounts of wetlands. In granting authority to the Corps, Congress was more interested in protecting larger tracts of wetlands rather than small ones. For this reason, the Corps fulfilled its duties and in this case, fulfilling its duties included the issuance of a permit.

        This case study also shows another one of the checks in the current wetlands permitting process. The DNR can act as a check on the permits issued by the Corps. Corps permits are only valid if the DNR grants 401 water quality certification. Since each agency operates under a different authority and different regulations, a Corps permit does not result in automatic 401 certification. State regulations regarding wetlands are stricter than the federal definition. In this case, stricter state regulations resulted in the protection of the wetland.

        Another lesson learned from this case study is the need for agencies to work together. In this example, the county's regulatory authority was limited to enforcing the wetlands setback ordinance. However, the county remained active in the process by sending a letter to the DNR opposing 401 water quality certification and stating their reasons as to why they opposed the project.

        This case study also presents the idea of takings and that governmental actions/decisions may have monetary consequences. Whether the takings claim will be granted in this instance is uncertain. However, the example does show that determining a lot to be unbuildable has monetary consequences. This emphasizes the idea that whatever decisions the county takes in protecting its wetlands, those decisions will impact property values. Determining wetlands to be present on a lot will result in a portionof or the entire lot being unbuildable, depending on the extent and location of the wetlands. Until the public is willing to pay for economic benefits of wetlands, a wetlands determination will most likely continue to result in an economic loss to the property owner.

        Finally, this case study shows the need for site investigations and accurate wetlands mapping. In this case, the property owner took the initiative to contact the county to make a decision on the buildability of the lot. A site investigation revealed the presence of wetlands, even though the zoning maps indicated wetlands were not present. Additionally, if the wetlands had been correctly mapped, the county would have maintained regulatory authority and prohibited the alteration of the wetland. The controversy surrounding the takings issue would not have been realized since the DNR and Corps would not have been active players in the process.

        Case Study D

        Case Study D (Figure 3-4) involves the illegal filling of a wetland. The case began with the County Planning Department conducting a site investigation on a neighboring piece of property. During the investigation, the Zoning Administrator noticed a lot had been disturbed. More importantly, though, the Zoning Administrator noted the two adjacent lots had wetlands. After a conversation with a neighbor, the Zoning Administrator learned the disturbed lot used to look similar to the adjacent lots. Closer inspection of the lot revealed wetlands were present. However, the zoning maps indicated the area as upland.

        In the prior case studies in which wetlands were inaccurately mapped as upland, the county had minimal regulatory authority except to enforce the wetlands setback ordinance. In this example, though, the county maintained its regulatory authority by deeming the fill activity a land disturbance. County ordinance requires a property owner to obtain a land disturbance permit for any activity that disturbs more than 2,000 square feet of land. Additionally, the ordinance specifies that land disturbance permits will not be issued for activities that occur within wetlands. Based on this reasoning, the county ordered the property owner to remove the fill and restore the wetland.

        The property owner contested the county's claim that the property contained wetlands. Prior to purchasing the lot, a concrete slab and mobile home had been present on the lot. The property owner maintained that if wetlands had been present on the site, the wetlands had been altered by the previous owner. To settle the debate regarding the presence of wetlands, the county agreed to hire an independent wetlands expert to review the property and the adjacent lots to determine if wetlands were present. Until the expert's determination, the county suspended its order remove the fill and restore the wetland. The expert concluded wetlands existed on the site and that the wetlands had been altered from past activities.

        The property owner then met with the Corps at the site. The Corps determined most of the lot did not meet the definition of a wetland. Two months later the Corps again stated its position that the property in question did not meet the definition of a wetland. After a request from the property owner to review its files concerning the property, the Corps concluded that wetlands did not exist on the site and if there were wetlands on the site, they were altered prior to the current property owner's acquisition of the land. The Corps emphasized that aerial photos dating back to the late 1970s showed a mobile home and yard area present on the site. The Corps stated that the wetland determination made by the wetlands expert was inaccurate. Furthermore, the Corps noted the area did not meet the definition of a wetland, thus no permits were required for the filling activities on the property.

In addition to the Corps maintaining that wetlands did not exist on the site, the

property owner also hired a private consultant. The consultant also concluded that wetlands did not exist on the site.

        With the property owner failing to remove the fill material and restore the wetland, the county took legal action against the property owner. The county presented the property owner with two alternatives for restoring the site. The first alternative required complete restoration of the entire site. The second alternative allowed the property owner to keep a portion of the property filled. The filled area was large enough to be buildable. In the second alternative, the property owner was required to remove a portion of the fill material and restore the wetland area. In addition the property owner was required to pay a fine. Since the second alternative allowed a portion of the wetland to remain filled, the county assessed a fine for the unrestored wetland area.

        Case Study D presents several issues. The first question is whether legal action by the county was necessary. Since the property owner was failing to comply with the restoration order, legal action may have been the only method available to the county to force the property owner to comply. However, the property owner maintains that the county was not quick to respond to questions about the case. The property owner believes that better communication in the early stages of the case could have prevented the need for litigation.

        A more important question may be what happens when two regulatory agencies disagree over the existence of a wetland. Which agency has the ultimate regulatory authority? If the county had the ultimate authority, the final outcome was justified and legal action may have been necessary to force the property owner to comply with the restoration order. If the Corps had the ultimate authority, there would have been no need for legal action because no laws would have been violated. The property owner would have been allowed to proceed without interference.

        The issue of regulatory authority affects the property owner in another manner. The property owner had received correspondence from the Corps indicating the property was not wetlands. Most people do not question correspondence received from a governmental agency. In this case, the Corps assured the property owner wetlands were not present on the site. With that assurance, it is understandable why the property owner believed he did nothing wrong. The wetland was not a mapped wetland. As noted previously, the county's authority is generally limited to enforcing wetlands setback requirements from unmapped wetlands. In this case, though, the county chose to invoke its authority under the land disturbance provisions of the zoning ordinance.

        This raises several questions. If invoking the land disturbance portion of the zoning ordinance will protect the wetland, why didn't the county enforce the land disturbance requirements in Case Study C? The proposed project in Case Study C required a minimum fill of 50'x50' feet, which should have triggered the 2,000 square footage requirement for a land disturbance permit. If the county had required the property owner in Case Study C to obtain a land disturbance permit, no permit would have been issued because the ordinance prevents the filling of any wetland. Under this reasoning, Case Study C could have been avoided.

        A related question is why doesn't the county require a land disturbance permit for all projects? Conversations with County Planning Department staff revealed that this is a controversial area. However, the Department policy is that a land disturbance permit is not required for construction activities associated with the building of residences. If this is the case, the County should have not invoked its authority in Case Study D, since the fill activities in Case Study D were associated with the construction of a residence.

        One lesson from this case is the need for wetland delineations. If there is any question of a wetland being present, the property owner should consult with the Corps, DNR and/or County Planning Department and insist that the agencies conduct a wetlands determination. This determination will provide the property owner with stronger evidence compared to an agency letter stating whether wetlands are present. Corps delineations are often made in the office, using maps and other information, and may not be as reliable as a field determination. Agencies should conduct wetlands delineations in the field to support their claims regarding a wetlands determination. In cases where there may be controversy, wetland delineations should include multiple transects and be thoroughly documented.

        Case Study E

        Case Study E (Figure 3-5) is the only case study that does not directly involve a wetlands mapping issue. While a question regarding the exact boundary of a wetland eventually arose, the land was correctly mapped. This case study deals the draining/ditching of a wetland.

        After years of requesting the town alleviate flooding on their property caused by a town road, the property owners hired surveyors to map property elevations and then constructed a ditch along the drainage channel indicated by the surveyors.

        In the fall of 1996, the county ordered the property owners to remove the ditch and restore the area. The disturbed area was a mapped wetland. County ordinance prohibit the excavation of drainage ditches in zoned Wetlands. In addition, county ordinance prohibits any ditching or excavation activities that would alter a wetland. The property owners appealed the decision to the Board of Adjustment. The property owners based their appeal on two claims. First, the property owners stated they intended to use the land for silviculture activities. County ordinance allows for limited drainage, ditching, and dredging activities in wetlands for silviculture operations. Second, the property owners stated they created the ditch to prevent the flooding of their property resulting from inadequate road maintenance by the town.

        The town claimed the property owners caused the drainage problems themselves by lowering the ditch line. In addition, driveways were cutting off the flow of water. The town board voted to support the county's position on dredging. In addition, the town board voted to keep the existing town ditch in good condition.

        The DNR submitted a letter to the Board of Adjustment opposing the appeal. The DNR noted that the property owners should supply the county with a forestry management plan to support their claim of a silviculture operation. In addition, the DNR noted that the county ordinance allows ditching in silviculture operations to alleviate temporary drainage problems caused by abnormally wet conditions that would have adverse impacts on the operation if not addressed. To qualify for this exception, the abnormally wet condition must exist in the forested area, not downstream at the residential property. The DNR concluded that the conditions in the area were not abnormally wet and for that reason the appeal should be denied. The DNR stated that the property owner should work with the town to address any drainage problems.

        The property owner hired a land surveyor to investigate the site. The surveyor determined the ditch did not appear to be deep enough to drain the wetland. He also emphasized that it had not been anyone's intention to drain the wetland. Instead, the property owner had simply been looking for a means to address flooding problems on his property.

        Prior to the Board of Adjustment meeting, the Zoning Administrator noted a discrepancy between the county zoning maps and the DNR wetlands inventory maps. As noted previously, county zoning maps are based on the DNR wetland inventory maps. At issue was whether a portion of the ditch was located in an upland. The Zoning Administrator suggested that the County Planning Department and DNR conduct a joint inspection after the snow melt to determine the exact wetland boundary. If the determination concluded the area was a wetland, even though not a mapped wetland, county ordinance still prohibited ditching or excavation activities. However, if the determination concluded that the area was not a wetland, the property owner was within his rights to install a drainage ditch.

        That spring the Zoning Administrator and a DNR representative inspected the lot and marked the wetland boundary. The southern portion of the ditch was located in wetland. The county reinstated its order to remove the drainage ditch and restore the area. The northern portion of the ditch was located in upland and not subject to the restoration order. The county noted that there was standing water present on the site, resulting from the property owners filling a wetland.

        The property owner again contacted a land surveyor to review the stormwater drainage issues. The surveyor noted that construction of the road impeded the natural flow of water. After the construction of the road, a series of ditches and culverts were installed to address the drainage problems and allow for the continued flow of the water. The surveyor made several recommendations:

• allow the drainage ditch constructed by the property owners to remain;
• abandon or cap an existing culvert near the property owners' driveway;
• have the town clean out the ditches and outfall and monitor the situation on a regular basis.

        The property owner submitted the report to the town and county.

        The property owner continued to assert that his actions were necessary and the problem was at least partially a result of inaction by the town. The county again ordered the property owner to restore the site. The county also advised the property owner that if he continued to contest the order to notify the County Planning Department to reactivate the appeal pending before the Board of Adjustment.

        The County eventually took legal action against the property owners. The property owner agreed to pay the associated fine, but continued to contest the restoration order. The County Planning Department noted that receiving only a monetary fine would not be acceptable without restoring the wetland. Two years after the initial order by the county, the property owner restored the site and paid the associated fine.

        This case presents several interesting issues. First, the property owner truly did believe he was wthin his rights to construct a drainage ditch to alleviate flooding on his property. He did not intend to drain a wetland. After a conversation with the DNR and based on his interpretation of state regulations, the property owner believed he could construct the ditch. While the DNR did suggest some options, the agency representative did not state the property owner could construct the ditch. In addition, the property owner had not stated the area in question may have been a wetland.

        While legal action may have been necessary to force the property owner to comply, the case is unfortunate. A less controversial method may have resolved the problem more quickly instead of the two years needed to resolve the problem. The construction of the town road resulted in drainage problems because the road impeded the flow of water. In an effort to direct the flow of water, the town installed a series of ditches and culverts. However, the ditches and culverts did not address the drainage problems involved in this case. For this reason, a meeting could have been held between the town, property owner, and county to find a resolution to the drainage issue. The flooding experienced by the property owner was seasonal in nature and may or may not have been caused by the installation of ditches and culverts by the town. As the DNR stated in its letter of objection to the Board of Adjustment, this was truly a matter between the property owner and the town.

        This case shows how important it is for governmental authorities to work together. If the town, property owner, and county had worked together, the case may have been resolved more quickly. Additionally, this case study shows the importance of agency personnel to be careful when dealing with the public. The property owner believed he could alleviate flooding problems on his property. Agency personnel should make special efforts to avoid situations where the public may misunderstand a comment. This may include sending follow-up letters to the public after conversations to establish a written record of the conversation. The follow-up letters would also aid the public in their understanding of the conversation. This would result in additional workload for agency staff, but it may help avoid situations such as Case Study E.

       Summary

        The case studies present five different situations regarding wetlands. The cases involved wetlands rezoning, filling of wetlands, wetlands delineation, wetlands draining, and wetlands mapping. No two cases involving wetlands will be identical. Each case must be viewed individually. However, the cases emphasize the strengths and weaknesses of the current wetlands permitting process.

        One strength highlighted by the case studies is the wetlands rezoning process. The process corrects mapping errors that have incorrectly classified upland as wetland and vica versa. In addition, before an area designated as wetland can be rezoned, the property owner must follow a series of steps that ensure the land in question is not a wetland. The process involves all three regulatory agencies: County Planning Department, DNR, and Corps. Each agency is allowed to comment on the wetlands delineation. The final approval is given by the County Board. The series of checks on the process prevent an area that is truly wetland from being rezoned as upland.

        A second strength is the County Planning Department's current practice of conducting a site investigation for each zoning permit issued. This practice identifies wetlands that may not be mapped. Even though the county's authority is limited in these instances, the county can at the very least ensure that the property owner obtains the necessary permits from the Corps and DNR.

        The case studies also identified several weaknesses. These weaknesses may be part of the process itself or may be a result of different agency regulations. The most obvious weakness identified by the case studies is the inaccuracy of the wetlands zoning maps. Since the zoning maps are based on the DNR wetland inventory maps, the wetlands shown are limited to wetlands having a size of two acres or more. This allows many of the smaller wetlands to fall through the cracks. Additionally, the DNR wetland inventory maps are not completely accurate. Determining the exact boundary of a wetland via aerial photos and maps is difficult. As one wetlands expert noted, the line representing the boundary between the wetland and upland may itself represent 300 feet.

        Wetlands maps played an important role in each case. The maps determined the extent of county authority. In addition, the maps determined the types of activities a property owner could undertake. With the exception of Case Study E, the problems presented in the cases could have been avoided with accurate wetlands mapping.

        No mapping technique is one hundred percent accurate. There will always be errors. However, the county can investigate methods to address these mapping errors. Recent county actions have done just that. The wetlands setback ordinance applies to all wetlands within zoned regions of the county. The setback ordinance does not differentiate between mapped wetlands and wetlands that do not appear county zoning maps.

        However, the setback ordinance does not guarantee the county will retain primary regulatory authority. As shown in Case Study C, the wetlands setback ordinance applied to the wetlands. Yet since the wetlands were not mapped wetlands, primary regulatory authority shifted to the Corps. To meet the county setback requirements, the property owner increased the wetlands area to be filled. This allowed the property owner the space needed for the proposed residence and also provided additional space so the proposed residence would meet the applicable wetlands setback requirements.

        One method to increase the county's authority in these situations may be to expand the applicability of the land disturbance permit. By requiring all activities that disturb greater than 2,000 square feet of land to obtain a land disturbance permit in addition to any other applicable permits, the county could increase its protection of unmapped wetlands.

        The case studies show how the county, DNR, and Corps differ from each other. Each agency governs within the authority granted to it. The Corps operates within the authority granted by Congress. Similarly, the DNR acts within the authority granted by the Legislature and the County Planning Department acts within the authority granted by the County Board. These differences affect the strength of agency regulations. With the federal nationwide permitting in place, the county should address means to increase the instances where the county maintains primary regulatory authority governing wetlands.

        The County Planning Department, DNR, and Corps should be aware of each other's actions involving wetlands issues within the county. This provides the agencies the opportunity to comment on issues where the agency may not regulatory authority. For example, in Case Study E the DNR objected to an appeal before the County Board of Adjustment. In Case Study C, the county objected the to the granting of a 401 water quality certification. In both of these cases, the agencies did not have primary regulatory authority. However, their comments provided an additional perspective to the issue.

        Each of the three agencies face workload issues. However, the agencies should try to maintain communications with each other. If the county becomes aware of an activity that will impact a wetland but does not have authority to stop the activity, the county should state its objections to the Corps and DNR. Additionally, the Corps and DNR should comment on county activities that affect wetlands. The wetlands rezoning procedure specifically states the Corps and DNR must be advised of the proposed rezoning activity. As shown in Case Study A, both the Corps and DNR commented on the proposed rezoning activity.

        The case studies also show the confusing network of agencies, permits, and regulations facing a property owner if a proposed activity may impact a wetland. Table 3-3 presents a few examples of scenarios that may occur in the county. Key issues are whether or not the county zoning ordinance applies, the use of the setback and land disturbance provisions, and the involvement of the Corps and the DNR should an activity alter a wetland.

Table 3-3:  Examples of wetland scenarios in Door County

Conclusions  (Back to TOC)

        The qualitative research identifies the frustrations people feel about efforts to protect wetlands and to make regulatory processes more efficient. The need to simplify the process, and to make it more understandable looms large in the minds of stakeholders who offered their opinions for this study.

        Equally apparent is the commitment that stakeholders have toward protecting ecologically important areas such as wetlands in Door County. Stakeholders from real estate professionals, to Door County Planning staff, to local elected officials value wetlands and seek creative ways to protect them.

        At the same time, participants to the study want to educate Door County residents about the critical role that wetlands play in protecting water quality, providing wildlife habitat and preserving species. Stakeholders seem willing to take the steps necessary to retain wetlands as a critical natural resource in the county.

        The next chapter highlights strategies that citizens may want to consider in improving current wetland protection efforts.

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