DNR-88-001-RL
7-2000-1743-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES
In the Matter of the FINDINGS OF FACT
Application of Bayport CONCLUSIONS AND
Marina Ventures to Amend RECOMMENDATION
Minnesota Department
of Natural Resources
Permit No. 83-6110.
The above-entitled matter came on for hearing before Administrative Law
judge Richard C Luis on November 18, 19, 20, 23 and 24 at the Washington
County Courthouse in Stillwater. The hearing continued at the Office of
Administrative Hearings in Minneapolis on November 25, 1987, and January 28
and 29, 1988. The record in this matter closed on September 7, 1988,
Christopher J. Dietzen and Forrest D. Nowlin, Larkin, Hoffman, Daly
Lindgren, Ltd., 1500 Northwestern Financial Center, 7900 Xerxes Avenue South,
Bloomington, Minnesota 55431, represented Bayport Marina Ventures ("Applicant",
"Bayport"). A. W. Clapp, III, Special Assistant Attorney General, Suite 200,
320 Lafayette Road, St. Paul, Minnesota 55155, appeared on behalf of the staff
of the Minnesota Department of Natural Resources. Carl A. Sinderbrand,
Assistant Attorney General, Justice Building, P.O. Box 7857, Madison, Wisconsin
53707-7857, appeared on behalf of the Wisconsin Department of Natural
Resources. Public testimony was offered by several individuals, including
Representatives of the Lower St. Croix Management Commission ("LSCMC") and the
Minnesota-Wisconsin Boundary Area Commission ("BAC").
This Report is a recommendation, not a final decision. The Commissioner
of Natural Resources will make the final decision after a review of the record
which may adopt, reject or modify the Findings of Fact, Conclusions, and
Recommendations contained herein. Pursuant to Minn. Stat. 14.61, the final
decision of the Commissioner shall not be made until this Report has been made
available to the parties to the proceeding for at least ten days. An
opportunity must be afforded to each party adversely affected by this Report
to file exceptions and present argument to the Commissioner. Parties should
contact Joseph N. Alexander, Commissioner of Natural Resources, 500 Lafayette
Road, St. Paul, Minnesota 55155-4001, to ascertain the procedure for filing
exceptions or presenting argument.
STATEMENT OF ISSUE
Whether Bayport Marina Ventures should be granted an amendment which
modifies the Minnesota Department of Natural Resources permit governing the
operation of the Bayport Marina in accordance with its Application submitted
to the MDNR in November 1986 and revised on September 2, 1987.
Based upon all of the proceedings herein, the Administrative Law judge
makes the following:
FINDINGS OF FACT
1. Bayport Marina is located on the St. Croix River at the south end of
the city of Bayport in Washingtor County. This amendment Application concerns
the usage of slips in the harbor portion of "le Marina. The harbor was
created by a dredging and filling operation conducted over a number of years.
Two peninsulas, or "fingers" of land run parallel to the riverbank in a
generally north-south direction from the northern pier of the harbor. The
eastern peninsula is longer than that on the west, and curves back to the west
at its south end to form a shelter for the harbor.
2. The Marina contains 231 boat slips. On December 10, 1982, following
a lengthy administrative hearing process, the Commissioner of Natural
Resources issued an Order authorizing the mooring of up to 50 its,
60 sailboats and 80 motorcraft, plus one boat for each dwelling unit
construrtel. fourty-one of the 231 slips were constructed to accommodate a
41.unit condominium which -is to be built elsewhere or the marina property,
out the condominium building has never been built.
3. Bayport Marira received a permit for construction pursuant to the
Commissicner's Order on September 30, 1983 (recorded January 9, 1984), and
slips and buildings *ere constructed in 1984.
4. Pursuant to its Application for amendment of the permit, Bayport
Marina seeks to convert 35 of Its sailboat slips and '- of its transient slips
to "unrestricted" usage. The Marina currently has ar extensive waiting list
of motorboat owners who desire slips to rent on a yea basis. The effect of
granting the amendment would be to allow the Marina 135 motorboat slips,
25 sailboat slips and 30 transient slips.
S. The Bayport Marina site has been used for commercial purposes
intermittently since the 1920s, when it was used for a large enclosed roller
skating rink. in the early 1960s, the site was owned by H. A Goglin, who
planned to develop a marina on it. His plans formed the basis of subsequent
dredging and filling. Goglin operated a nightclub on the site but did not
undertake any dredging and filling operations.
6. In 1964, Moelter Construction Company acquired the land from Goglin
and applied to the U.S. Army Corps of Engineers and the Minnesota Conservation
Department for permits to dredge and fill for purposes of creating a marina.
On December 17, 1964, the Corps granted the requested permit, and that permit
was extended to December 31, 1971. On Decemser 17, 1964 the Minnesota
Conservation Department granted the requested permit, which was subsequently
extended to November 30, 1971. The applications and permits were for dredging
and filling. They did not detail the configuration cc operation of a marina
although that was the intended use.
7. At various times between 1964 and 1971, Moelter dredged and filled
pursuant to the permits. Mcelter was in the excavatior business, and would
work on the Marina when its dragline was not otherwise ised in its business.
Almost immediately after purchasing the property from Goglin, Mcelter placed
the land for sale. Between 1964 and 1976, a number of transactions for the
-2-
sale of the property were commenced, but none were completed. All of the
transactions prior to 1972 contemplated Moelter's completing the dredging and
filling to make the land usable as a marina.
8. in 1976, a group of four individuals (Carl "Al" Holmen, David
Parkhill, Fred Sauer, and Donald Perrenoud), operating informally as the
"Bayport Marina Company", entered in an earnest money agreement to purchase
the land, subject to their being able to obtain the necessary permits for a
marina.
9. The administrative hearing on Bayport Marina Company's permit
Application proceeded on several days in 1979, recessed for completion and
approval of a final Environmental Impact Statement, and reconvened and
concluded on January 18 and 19, 1982. The Report of the Hearing Examiner
Administrative Law judge) was issued on August 11, 1982, and the
nommissioner's decision was issued on December 10, 1982. The Application
under consideration in the 1979-82 proceedings was for either 237 in-water
slips plus a 200-boat dry storage shed, or 244 slips and a 41-unit condominium
Development. The Commissioner's decision, based on "fairness" to the Company,
allowed SO motorboat slips, up to 60 sailboat slips, up to 50 transient slips
And one slip for the use of each condominium unit.
-he Aoplicants did not appeal the Commissioner's decision.
10. The owners of Bayport Marina elected to install all 231 slips allowed
by the permit in one construction operation.
11. The permit sought to be amended in this proceeding is the only permit
for a marina an the Lower St. Croix River which regulates the specific types
of boats which may use the permitted slips.
12. In 1985, the Marina did not conform to the slip use provisions of
their permit, ant did not document their slip rental as required by provision X
of the permit. They leased 133 slips that year, approximately 10 of which
were for sailboats, and transient slips were rented for time periods exceeding
those specified in permit special provision VIII.
13. A 1985 application to amend the permit by eliminating the restrictions
on all of tre slips was denied by the Minnesota DNR by letter of March 7, 1986,
which stated
The Department would consider a request for permit
amendment *hen:
(a) User studies indicate that additional
recreational use can be accommodated.
(b) The Marina operates within the terms of the
Department of Natural Resources and U.S. corps of
Engineers permits.
14. In April 1986, an amendment of the 1983-84 permit was ajthorized by
the Minnesota DNR That amendment allows the use of eight transient slips by
demonstrator boats (boats offered for sale at the Marina) and the unrestricted
use of eight of toe 41 condominium slips until the conoomdniums are
- 3-
constructed. However, the Corps of Engineers refused to allow the use of
eight condominium slips for unrestricted rental.
15. The current Appli c ati on wa s submitted by Bayport Marina Ventu re s .
This entity is a partnership managed by Pemble & Associates of Bloomington,
Minnesota. On April 6, 1988, the Marina was sold by Bayport Marina Ventures
to Bayport Marina & Yacht Club, Inc., a Minnesota corporation In connection
with the sale, the new owner retained the right to proceed with the Amendment
Application.
16. The November 1986 Amendment Application, which is the subject matter
of this contested case proceeding, was supported by and submitted together
with a pilot study by Dahlgren, Shardlow & Uban (DSU) relating to the impact
of boats emanating from marinas on the Lower St. Croix. The DSU study was
used to formulate and justify the amendment and explain its impacts and
benefits.
The DSU study examines certain assumptions and conclusions drawn
principally from previous studies performed by the Minnesota-Wisconsin
Boundary Area Commission (BAC) relating to the use and impact of the Marina on
the river, including the Marina's percentage of peak use contribution to river
surface use and locations where Bayport boaters travel on the river. In
addition, surveys of beached boaters and experienced boaters were undertaken
as part of the study. The results were included with the Application.
17, The 1986 Amendment Application was denied by the Minnesota DNR by
letter dated June 30, 1987.
18. In July 1987, the Applicant requested a contested case hearing
regarding the amended Application and its denial. On July 15. 1987, the State
of Wisconsir intervened in the proceeding in opposition to the Application.
The Application is also opposed by the National Park Service, the Lower
St. Croix Management Commission (LSCMC), the Minnesota Wisconsin Boundary Area
Commission (BAC), the Lower St. Croix River Association, the Sierra Club, the
City of Lakeland, and several individuals. It is supported by the City of
Bayport and several individuals.
19. The 20 transient and 35 sailboat slips which would be reclassified to
motorboat use are not now used because there is no demand for them. There is
a large unsatisfied demand for motorboat slips. Therefore, the 55
reclassified slips would change from no use to motorboat use. Changing 35
sailboat slips to unrestricted use would, in effect, expand the number of
boats seasonal ly stored in the Marina because those slips are not occupied at
present. The change of the 20 transient slips would also effect an expansion
in the number of boats moored on a seasonal basis at Bayport because transient
slips are used as temporary stopping places for boats already on the River
rather than as a base from which boats go out on the River,
20. If the Application to amend Bayport's current permit is granted, the
new permit would increase the number of boats going out on the River from the
Marina in the same proportion as the number of boats seasonally moored is
increased, as follows:
-4-
Moored Moored After Percent
Now Amendment Change
Motorboats 80 135 +691
Motorboats + Sailboats 105 160 +521
21. in 1985, at 2:oo p.m. on peak days, somewhat less than 34 percent of
Bayport Marina's boats were out of the Marina. In 1987, the comparable
vacancy rate was 18 percent. Over the years, the figure for al I marinas has
Consistently averaged 29 percent. The rate for individual marinas varies from
year to year . The 1985 survey figure of 34 percent of Boats on the water at
1:00 p.m. on peak days is too high because, at the ntime of the 1985 survey,
,he BAC, which compiled the data, had not been supplied with an updated
version of a map or diagram showing which slips at Bavport were rented for toe
season. Bayport' s v acancy ra te is likely lower than that of other marinas an
the River because Bayport has better on-site amenities such as a
restaurant-bar and swimming pool. it is reasonable to assume that the vacancy
at Bayport Marina at a peak time (2:00 p m. ) on a peak day ( Satur day,
Sunday or a no! !day be toe en Memori al Day and Labor Day) is Ies st man 29
percent.
2 2 . in 1971, a study based on a 1970 boat survey stated: "ReGreational
itilization of the St. Croix River Valley has been judged to be at or near its
optimum level,"
The 1976 Final Master Plan for the River found: "Overuse of the Lower St.
Croix by a II types of water craft is a ser ious threat to the river environment
and the quality of the river user's experience" and " . , traffic on the
p ower St. Croix re a c he s a satur ation point on most summer weekends. (Ex. 15,
pp. 23, 58.)
On October 4, 1978, the Lower St. Croix Management Commission, reviewing a
1977 study conducted "to determine the optimal carrying capacity of the Lower
St. Croix Rive -way" found " that water-based recreational use of the Ri verway
i s rapidl y increasing and causing crowding, potential serious safety problems,
conflicts between types of recreational users, conflicts between users and
riparian landowners , and serious reducing water quality. ' On that day, the
LSCMC declared its objective to "maintain the riverway in its present state;
resource quality should be maintained in its present condition and peak period
recreational use should not exceed present levels." (Ex . 51 -A, )
23. The Lower St. Croix River, between the dam at Taylors Falls,
Minnesota and the River's confluence with the Mississippi River at Prescott,
Wisconsin is part of the National Wild and Scenic River System, designated
under '6 U.S.C. 1271(a). The National Wild and Scenic River Act was passed
in 1968, and the Lower St. Croix was added as a designated segment under that
Act on October 25, 1972. it has also been designated ss a Wild and Scenic
River by the States of Minnesota and Wisconsin. See Minn Stat. 104.2S
@first adoptel in 1973) and 30.27, Wis. Stats.
2 4 . The Lower St. Croix s managed jointly, by the two states through
the c Departments of Natural Resources and by the fede, a' Government thrOUgh
the National Parks Service. Management of the River coordinated through
-5-
tie Lower St. Croix Management Commission, which consists of one commissioner
from each of the three managing governments.
25. From the inception of its designation as a Wild and Scenic River, the
Lower St. Croix has been heavily used by recreational boaters, particularly
that portion of the River below the Arcola sandbar and the City of
Stillwater. intensive studies have been performed of the lower St. Croix by
the two states, primarily through the BAC, since 1976. The studies generally
consist of repeated aerial su-veys by the BAC over the course of a season
chemorial Day to Labor Day) every two years, The available data relating to
toating patterns on the Lower St. Croix is considered better than data an
other similarly protected rivers.
27- Data for the River demonstrates a consistent around increase in boat
traffic of rearly six percent between 1970 and 1987. this increase is
attributable to all sources of river traffic -- marinas, public and private
access ramps, riparian owners and traffic coming into the St. Croix from the
Mississippi River.
28. Due to boat congestion on the River, river use has been regulated by
!he Minnesota and Wisconsin Departments of Natural Resources. Regulations
include slow, no-wake zones and restrictions on waterskiing. in addition, the
USCMC has established a policy of, at a minimum, reviewing existing
regulations when river density exceeds 15 acres per boat and requiring the
implementation of surface water regulation when density exceeds 10 acres per
boat.
29. in 1987, six of the 13 zones on the Lower St. Croix below the Arcola
sandbar exceeded a seasonal average of 10 acres per boat and two others
approached 15 acres per boat.
30, Since the issuance of the January 9, 1984 permit now sought to be
amended, boat congestion on the Lower St, Croix has increased.
31. Boat congestion on the River has had a significant detrimental
impact. Surface water congestion has contributed to erosion and turbidity.
Seach congestion has caused litter and deterioratior of beaches. Congestion
also alters the Quality of the recreational experience and creates safety
concerns.
32. The LSCMC, and Minnesota and Wisconsin Departments of Natural
Resources prefer limiting access rather than surface water regulation as a
means of regulating the River. Access limitation maintains the broadest range
of recreational uses and is more economical as a method of protecting the
River. However, the agencies recognize that surface water regulations are
necessary where appropriate.
33. The boating patterns of motorboats and sailboats have not changed
since the issuance of the 1984 permit.
Motorboats and sailboats have different impacts on the River Motorboats
tend to use teaches, which are generally in the most congested waters
portions of the River. Motorboats also tend to congregate and are generally
destination oriented. Sailboats rarely beach They primarily use !me widest
portion of the River, south of the 1-94 bridge at Hudson, Wisconsin. To a
-6-
lesser extent, sailboats use the portion of the River between @e c i ty of
Stillwater and the railroad bridge north of Hudson, which is the segment on
which Bayport Marina is located.
3 4 . Boats moored at Bayport Marina use ,in varyi ng degrees , the entirety
of the Lower St . Croix National Sceni c Riverway between Prescott and the
Arcola sandbar Some of the boats travel from the Marina past Prescott and
Into the Mississippi River, but anything coming out of Bayport is -using" tie
vortion between Arcola and Prescott for at least some of its time. Aerial
survey data show that average peak day boating use at 2 00 P.m.. counting
cumber of boats on the water sur face and not beacnec , tetween the Arcc 1 a
iandbar and Pres@ott grew between 1980 and 1987 from 417 coats to 526 boats,
-his 26 percent increase in boats using the river surface lowers t"o space
available per coat on the L)wer St Croix from 19.6 acres of water to 15.6
acres of water
35. The Commissions break boater survey data into '--es ne!wpen
Prescott and the Arcola qanabar. in 1987, the four la, f these zones (2,
5, 8 and II- ani cn contain 81 percent of the water surfs oa In all zones)
neld an average cf 327 mov i ng watercraf t , prov i di ng 20 . 3; as uf water per
boat -
The portion of the Pover most immediately accessible to Bayport Marina
extends from the Hudson narrows on the south to Stillwater in the upstream
direction, which is zones 9 through 12. At 2:00 p.m. on peak days in 1980,
1983, 1985 arc 1987 the number of boats in these zones *ere, respectively,
110, 123, 133 and 156. The resulting densities worsened f,om 23 3 acres per
boat in 1980 to 17.8 acres per boat in 1987.
3 6 . The percentage of the 55 addi tional motorboats t@ be moored
at Bayport if the permit amendment is granted that would the River
on an average peak day at 2:00 p.m. is in dispute. The M apartment
of Natural Resources contends that a figure of 29 percent It @ ng an
average vacancy rate from all marinas on the River over ;me !as, everal
years, should be used. Bayport contends that a Fl gure of 1 8 to L2 percent
should be used, with 18 percent reflect! ng 1987 actual iata. in any event,
the parti es are i a sutstant i a! agreement that approx 1 mate I i n a 1 f of tie coats
whicn have vacated their marina slips at any particular time are neacned, and
half are moving on the River.
3 7 . in its assessment of the impact of adding 55 motc at s lips to those
currently rented on a seasonal basis at Bayport Marina, t' tdplicant makes
certain assumptions, based upon survey data and observatt. )f experienced
boaters, which lead it to conclusions regarding the amoun, itional river
traffic that will result at peak times on peak days if !he ont i s
granted. Bayport be! i eves about one-tal f of tne coats iqe"at ng out of tneir
facility stay within five miles either di rection from ine Yar@na 7hat
ten-mile reacn of River luns from zone 7 south of the Hudson 1-94 image
through zone 12 it the ngrto end of Stillwater. Their Belief is @ippcnted by
the actual disvvjbuticr cf boats at 2:00 p.m. an a vean !a, in '@i7 as shown
by the table on page two of Exhibit 59, It shows half :f tie moving power
boats tc be 'n zoren 7-1?.
3 8 . baypoz i Mari na assumes that hal f cf tne Loati !-a: tave jacated their
s I i ps at Eaypc@t at any particular time ire wi thi r ;he .,c -'!v of Bayport and
that half are elsewhere on the River (either moving or reai7el)
-7-
- , 9 . If the low" figure of 18 percent vacancy i s used, approximately ten
coats :II percent of 55) oil! be added to the River if ill 55 of the slips
proposed to be converted to motorboat use are rented out, These boats are the
number that can be assumed as added to river traffic at 2:00 p.m. on a peak
day . Of those ten boats, approximately five will be beached and five will be
moving or the River Approximately five will be in the zones adjacent to
E iypor t Mar i na and f i ve wi I I be on othe r par t s of t ne R i v e - , in the area
I amel i a te 1 y adj ac en t to Baypor t Mar i na , the numbe r 3t ijc i t i ona i boa t s mov 1 ng
on the R i ver , i f t he amendmen t i s gr an ted , a t a peak t ' me on a weak day thus
cpluces itself to Between two and three.
40. The Minnesota DNR argues that approximately 16 ti P percent) of the
55 additional motorboats that would be moored at Bavpcr he amendment were
granted would be out on toe @iver on an average ceio i i 0 M. E i gnt
of those 1 6 wou i a be added to oc ats movi ng on tne r i ver . ine Minnesota
Decartmert argues tnat an average of 1.3 boats would ne Added to !he 87 24
boats already moving in zone 1', tne zone in wnich the marina ii actualiv
located. This addition would L-ange the density figure from 23.2 to 22.1
acres of water pen coat.
41 . Regardless of which calculation methodology and r@nuits are accepted,
the addi t ion of 5S incestri c tew ( motor boat) s 1 i ps to Balpo-I Mari na wou 1 d add
73 the number of boats on the river. Since 1984, boat traffic has increased
and congestion, whether measured by number of boats or density standards, has
worsened. The add i tion of 55 "new" motorboat s I i ps at Bayport would exacerbate
the congestion in terms of number of boats and density.
42. Granti ng Bayport Mari na i ts assumption that 50 percent of any of the
boats which vacate their slips on a peak day are beached at any one point in
time, any additional seasonal motorboat rental will contribute to already
existing beach crowds, which are concentrated in narrow areas of the river
that are already congested and in which safety regulations iave already teen
imposed. Current prabl ems of beach congestion and 1 i tte@- i r@g vc)u 1 d be
increased.
43. Even if 50 percent of powe,boats which have vacates their mccring
si ips are beached at any given point in time on a peak day , those powerboats
moving or the wate- surface will generally be found in cre of tne five most
densely-used zones. More powerboats wi I I be found moving n sucn zones than
sailboats. (Exhibit 59 indicates that at 2:00 p.m. on 3 peak day, 50 percent
more powerboats will be found moving in one of the f ive mo@t densely-used
zones than sailboats.)
Tak frg moving and beached boats together, only 10 percent of !he sai lboats
compared to 45 percent of the pcwerobats will be n toe f i we most crowded
zones . Seventy- s i x percent of the sa i 1 boats , but Dn 1 ; 30 wercent of the
powerboats, will be in the five least crowded zones.
44. Sa i 1 ors and pcwerboater i use d i f f erent ;at - s 1 , the i er because
they seek out different settings. Sa 1 or s want to be opera the r i ver 1 s w i de
and open to the nind, Powerboaters seek cut teacnps sri -better from the
wi nd , and tend t i c Dngrega te wi th f r i enci ano acqua - n t a -@ e @ who iep I oy s 1 m i ' a r
craf t
8-
4 5 . Powerboats move ras ter than s a i Iboats, and make more wake ,
Therefore, they j ved a I arger zone of saf ety ( avoi dance a r ea) around them.
Sa i Iboats move by tag k i ng and run in packs when r a c i ng . They are also granted
toe right-of-way In any gi ven s tretch of r i ver , it is no: more congest i ve to
3 id a sai Iboat to the traf f I c than to add a motorboat.
4 6 . Baypoi t proposes to offset the i ncre as e @ n crowd! ng whi ch wou id
vpsult from 55 motorboats occupying now-empty si ipn by adding beaches to the
: ver . The additional beacnes would accommodate ilO beached boats, based on
approximately 300 feet of beach being developed at tne marina and 2000 feet at
oDIliner Park.
47, (olliner Park is on toe Wisconsin shore across from the City of
Stillwater, which Dwnn the 5arv Approximate! 300 f ee i o@ proposed teacn 1 1 e
@crtn @f the S:,Ilnater H cu @ , Do Er 1 ige and 1 7 -,7 f eet : @ o, conec npat@ space
tarts 3gproximateiv 300 feet soutn cf tne o-ioge, Some years ago, tne City
closed toe park to Access from lana. The Ct ty coes not stop soarers from
ceaching there , but neacnipg is extremely rare necause the shore 1 s brusny and
full of gravel, and the offsnore area is quite rocky.
48. -he LSCMC believes that new beach areas need to be created at
oublicly-owned recreation sites such as Kollirer Park in order to relieve the
already.existing heavy use pressure on beaches The Commi@sion la5 adopted a
policy that new beach areas should be created. See Exhibit 45, pghs D 1. and
2 Whether additional beaches would draw boats that would otherwise be
moving, or boats that would otherwise be beached elsewhere is not established
on this record. Some of the 55 additional powerboats at Bayport would 1 ikely
use Kolliner Park beaches if they were developed and made @uitable for landing
and land activities.
49. Negotiations between the City of Stillwater ard Bayport Marina for
development of toe Park have continued since the granting of the current
permit in early 1984, Development of the Park was considered as part of the
proceeding that led to the 1984 permit. Since then, the Marina manager has
appeared before the City Parks Commission. A draft lea,e has teen presented
to the Stillwater City Attorney, according to Commiss'on minutes, but the
draft was not offered for the iecorl.
50. -he Applicant proposes to contribute $20,000 towa,; the development
of Kolliner Park. How the money would be applied is unspecified. The Park is
in a state of substantial disrepair. it is not established on the record that
the proposed contribution would have any practical benefit to the public,
because the cost of making Kolliner Park attractive to beach users is
unknown. 'he beach area is in disrepair and has been unused for many years,
The cost of cleaning up the on and off shore areas so that boats can land and
boaters wil I be attracted to use the beach fa:il@ties is jnkncwn. ?ISO
unknown is the cost of continuing to manage --e property to keec It in a state
that would attract boaters for teaching purpcies. No cne as e,pressed a
willingness to develop or manage the Park (in fact, each co the parties has
expressed a lack of Interest).
51. As additional mitigation, the acolic3qt or7D77p; :'ani-g -'2 rap and
-he @iver s'de cf the jetty fear, neri-iola @- 7-o "atira. to
enhance 'ts 3osthetic qualities. -he evidence lemonstr3!ei -hat the , @p rap
necessary rot inly for aestnetin purposes, tut to c:ese,.e r7e oetry
9-
, tqe i i Placement of some of the rip rap would have to be done c 4 tne Marina
in any event, in or le r to Q reven t part of the r i verward jetty f r @m wa sh i ng
away
5 2 Revegetation of the jetty would be in the public interest. However,
tie proposal essentially replaces vegetation which was required as part of the
)84 permit and which is necessary to comply with state regulations regarding
: r e e n i n g . Therefore, it is eic enti a II y a proposa I to do something wni cn is
,tnerwise already required.
5 3 , Public test@mon - y offer en in support of the ippi 1 c it!on 0 7r amendment
i:atec several bases fDr support. They include the fact tiat acci!lanal slips
ire needed on the river, inat Bayport Marina s economic su:cess is lesiranle
"ec ause it in a good mar i ri , and th at mog t of the congest 1 Dn pror ' em; come
0, Dm " n3Dcu t: nat a i e ' iurc rel 'r Dm - imcs a long tne @mor ? 1 bc, - , n 'erms vf
numcers 3 no i r t Me a f ed Or poor , dangerous n a v 1 gat i cn ) P @b I i c witnesses
emonas i z?d t hat DQer at ion of Doat s in an uns a f e manre r was tne 1 r numuer c ne
@ifety concerr , especially speeding, Alcohol abuse and la:k of --a in i ng
Experience ano responsibility also contribute to congestion prou@ems
5 4 . S i n c e 1980, the silos at four marinas of the Lcwe@ St. :roi x -awe
@een sold to individual owners by cooperative and condominium arrangements
Sunnysidei Stillwater Yacht Club (Muller's), St, Croix Marina; and Windmill.
These marinas had 879 of the 1770 slips on the river available for seasonal
lease. Most of the slips that have been condominiumized ane cwner-occupied
and no longer available for seasonal leasing by the public. The number of
sucn slips that have been !eased out by their owners is unknown.
55. The number of boats that can gain access to the Lower St. Croix via
the thirty-ore trailered access ramps is uncontrolled. Some access ramps have
limited parking capacity, out most do not and in instances where parking is
limited, part ing restrictions are frequently violated. The only 1 imi tation on
:he number of trailered boats which can use the river from such ramps is the
!!stance the ramp user is willing to walk from the spot he parks nis trailer
lo the ramp, and wnether or not any parking space is available within
Reasonable wa!Ving distance. Some riverside communities, quch a; Hudson,
Wisconsin, restrict on-street parking near lots provided to launin ramp users
ty limiting street carking to local residents.
56. The 1987 BAC Survey indicates that the proportional contribution of
trailered or launched boats to peak period surface use ras increased from
19.91 in 1985 to 24.61 in 1987. The 1985 survey results are skewed, to an
unknown degree, by the fact that the survey did not include "ground truthing"
or all-inclusive photo coverage of the ramp parking areas. BAC studies from
earlier periods indicate a progressive growth in the ontribution of boats on
tne river from public launch ramps 11.7% in 1981, 15.7% in 1983)
5 7 . No legal contrcls or limi ts on access ramp intrioutiors i-e
contemplated. The M!nnesota DNR is currently engagea in developing new a@cess
-amps on the river, which ramps will have space for tne parking if an
additional 100 cars and boat trailers.
5 8 . Whet4er 3 ratt!Ea a, port' Dr of tte Ri ver !i " inlei!e: 1, !E
Subjective as well as an objective jetermination. 7Lnge,t'on 1- ' ' -k a i '
iafetj and both legend in the amount :f water sirface a,ea neetei I:r the
.. 1 0-
different uses sy the River Tne uses vary by location on the River. Aater
qurface Lses include canoeing, water skiing, sailing, cruising, filing or
n:enic touring. Eaqh nucn "user" has a different perception of "cop;estion",
Since the Order issued by the Commissioner after the first hearing of this
matter, the 'trigger level" for considering the imposition of surface water
n3ntrols has been changed from one boat per twenty azres tc one boat per
fifteen acres of water. The standard of ten acres per boat remains as tne
density level celow which surface water controls must be implemented.
60. Marioas ire the plurality contributors of water craft to @irfale use
on the 4ower 5t :roix. -he Minnesota DNR is drifting regulatory @tandaris
which would make new marinas a prohibited use, oar tie expansion of ootn
ivorage and laurqr 7apacity at existing marinas, and tar new or expanded
. suncn - imp 5 & - 7"Di 2ub 1 i 7 ic @es s to the e tent i ' ' iwei ty the pc 1 , 1 - n -- -ne
@ower Sc. Cio@@ Yanagement Commission. These standards as yet nave not been
proposed for puli,c near ng, nut they do demonstrate tre present !SCK Of 3
marina expansion moratorium.
61. On Memorial Day, july 4 and Labor Day of 1980, 1981, 1982, 1983, 1984
lid 1987, aerial tjeorape photographs of portions of the St, Croix tetween
Stillwater and Prescott were taken from a helicopter. The photography was
none between the nours of 12:00 noon and 2:00 p.m. Dnly the 1987 videotape
(Exhibit 356) was admitted to the record. The tape showing views from earlier
years (Exhibit 35A) was not admitted due to internal lack of specificity
Tegarding what was being depicted (T. VIII, pp. 361-69). This video indicates
open water conditions for most of the length of the River shown, but a
clustering of boats at beaching areas.
62. Exhibit 56 depicts the location and capacities of marinas on the
Lower St Croix. Five marinas at Stillwater have a total capacity of
581 craft. Sunn side Marina at Oak Park Heights has a 241-boat capacity.
7hree marinas at Bayport have room for 323 boats, 231 of which are slips at
Bayport Marina. Two marinas at Hudson, Wisconsin can accommodate a total of
148 craf:, two at Afton have an aggregate capacity of 369, and '*o at Prescott
can acc3mmocate 61 :raft.
The Prescott-Hastings area has four marinas on the Mississippi River.
These marinas have a total of several hundred craft, many of which enter the
St, Croix at Prescott and spread themselves out across the Lower St. Croix for
boating activities.
63. Exhibit 55 depicts the locations of 35 ramps from which access to
boating on the Lower St, Croix is available. Four of the ramps are on the
Mississippi River near Hastings and Prescott. The others are spread out along
;me St. Croix, with concentrations near St. Mary s Point, 4odSOn-LalelanC.
Bayport, Oak Park Heights, Stillwater, Marine-on-St. Croix and Oicecia Most
of the ramps are privately owned, some are open tv tre public and nome 3ne
restricted to certain usens only. Some of the putlic-use ;amqs are free and
some charge fees
64. in acd'''cn to t-e az:ve.noted BAC io-';' -2,)Pvs a
iu-iey :' St iri@, Ri@e, 7caters aas performel i. l@-do;fer i,sic,ite7, :nc
unle- ii-ecticn of its president, Dr. David Ar-o3;ler 7he metnodi of
13mpitng, @;cvey iomin'it,ation and ;esponie rate MaKe the survey esu ts
-11-
@iqhiy -enable Data from this Survey has been used by tie Administrative
-iw jusle in developing Findings about tendencies of pcwerdoatern and
i a i !boa ter s on the St. Grol x regai ding how they operate tne i r c raft and where
they go on the River, including beach use patterns. 5ee Exhibits 58-60.
Based upon the above Findings of Fact, the Administrative Law 3odge makes
toe fallcwingi
CONCLUSIONS
1 Ary of tie foregoing Findings of Fact wnich ;noun be more procerly
ze designated as Conclusions are hereoy adopted as sucn
I -he Denartment gave orooer notice of tne hearing '- tnis matter and
-is :area i re! ev in 7 -onstant,;e and u,oceoural rpiulremenli of law Dr
The Gammissioner of Natural of Resources and tne Administrative Law
:uage nave ]uri@aiction in tnis matter in all respecti
3. -he Lower St. Croix is source of recreational, scenic and aesthetic
7atural resources as those terms are oed in Minn. Stat. 116D.04, subd. 6.
Tre ;Pquestea permit is a permit fcr iatural resources management.
4 . The 198d permit may be amended only if the proposed amendment is:
reasonable, practical and adequately protects public safety and promotes
p;blic welfare (is in the public interest); and (b) consistent with the values
reflected in the designation of the Lower St. Croix as a Wild and Scenic
River. Minn. Stats. 104.25 and 105.45.
5. The Applicant has the burden of proving its entitlement to the
Amendment by the preponderance of the evidence.
6. The proposed Amendment is inconsistent with state law and the
regulatory policies of the Minnesota DNR and Lower St. Croix Management
Commission for the following reasons:
a. it joys not enhance the preservation of the aesthetic,
recreatioral, scenic and environmental qualities of the
RI wer @
b. it is a marina expansion beyond the constraints imposed
by Commission policy and Minn. Rule 6105.0410, suop. 2.
7. The Applicant has failed to meet its ourden of proof that the
amendment is in the public interest. A granting of the amendment permit would
have a detrimental on river use and the quality of the river resource The
only benefits woui d accrue to the owners of tne Marina 6nc lessors of tne
additional slips.
8. The Appli cant's reliance on the case Df Application of Orr 396
N . W , 2 d 657 ( Min n . App . 1986 ) is misplaced . In Application Of Orr, there was
currently no problem on Mille Lacs Lake, and a grant !me permit would
not change conditions enough to cause a problem. The "',-Psota PNR'T T:q7e-r
was that i@nce at iome fiturn ttme there could be ens",@ 7 ' ' l' @ r a q g e 1
tie Lake -o cause a problem, the type of change asked '-r c-i "7e AcDl'nant
-eeded tT be denied from the ;tart so as not to create i 7ini,pg iTEceoent"
- 1 2 -
The Bayooct Mdt , na in not , 1 n' , 31 y 1 1 t6a tea to the M I 1 le La Cs L ake oar nor
app!ilation, because bcat Llcwding Dn the Lower St. Croix already is a p,ablem
Based upon the Foregoing Conclusions the Administrative Law )udge makes
tne following
RECOMME-NDATI-ON
!T IS HEREBT RECOMMENDED tnat the amendment application of Bayport Marina
Ventures be DENIED.
Dated this 31st day of October 1988
RICHARD C. LUIS
administrative Law Judge
NOT !CE
Pursiant to Minn. Stat, 14.62, subd. 1, the agency is required to serve
its final decision upon each party and the Administrative Law judge by first
c I ass ma i 1 .
Reported: Taped, Transcript Prepared by Jeffrey j. Watczak, Court Reporter.
ME-,MCRANI'DUM
The record in this case demonstrates that the addition of 55 "unrestricted"
slips at the Bayport Marina, slips that are currently not used by the tyoe of
boats for whicm they are reserved (sailboats and trans iert boats). would te
oc @ ipi ed I U i C K ' y by DOW e T- t S , @Tcs t of on i c h are at 1 east 30 feet 1 Dng Some
of these DoatS ocu 1 d f -eq jent 1 y trave 1 tre ent 1 re qav i ganle length of the
Lower St , Crol x R i iei , some t i me s at 4 i gh speeds . caus i ng wake and eros , an
problems, The evidence also snows that the boats stop at some of the '@mited
beaching areas, adding to congestion Dn the water surface in the vicinity of
the beaches and to the crowded conditions on the actual beach area None of
these results can be viewed as a 'public benefit" in an area designated for
protection by a wild and scenic riven status. The benefits that result from
gvanting the application accrue, for the most part, to the first 55 power ocat
cwrer s on Bayoor t ; s eu , -ent wa i t 1 ng 1 i s t and to the Mar i na s operators , 7:
say :na t the se benef i c i ai 1 e s const 1 tute the " oub 1 i c " cc r! eTp i a teo ' - t re
gco e, , i mg nti!jtei and L@es 's a a3rs:rjc:icn the Admir'nt@ at 1 e LS. I . 1 1 e
cainct a@:ept
D p 1 1 iant @as lore ir acmir atie ]co ir dem, r@l! S7 1 , g 7
we 3 a i t tte a i cwd , , q 1 Dnges t i on saf ety and ;c t nn E b ns t a
3 1 o a, p 1 1- el ti per i 1 it on the Liwe,
00' Via: -- 01 n:n I 00 Ti@'q,
ne e.@ it, a:'rg that or!, I D- 3 rcre kca7i ne Mr i
e o !t-v cl Ea-wpc@t M@! 'ia it or, gi,ep -amert on 3 p p 3
- 1 3 -
ocating lav. Even if that level of impact is what results from granting the
amendment , however . the Admi n i str at! ve Law Judge s ti II 2ancludes tnat the
amendment should not ce granted.
Two issues dominate the consideration of this applicat on. First. the
compatibility with the general standard applicable to all marina applications
most be Considered. Minn. Stat. 105.45 provide,, in aer7inent part
if the Lommissioner concludes that the plars of the
applicant are reasonable, practical and will adequately
protect public safety and promote the public weifdre, toe
@3mmissioner shall grant the permit - - Giherwi,e the
Commissioner inall reject toe application or ma, eauire
modification - f -tie pian a; tne commi ss i one r f i nd @ sT ore,
-: p-q,e:t t-0 2uoiic interest :n permit 3EP n@
dppilcdnt nas tne ouroen or proving tnat tie sroposeo
cro@ect in reasonable, practical, and will aleiua7e!y
protect public safety and promote the publin 4elf3re-
in granting a permit the commissioner may include in it
terms and reservations about tie amount anc manner of the
use or appropriation or methoi of construction or operation
of controls as appear reasonably necessary for the safety-
and welfare of the people of the state.
in addition to determining whether the proposal will "adequately protect
public safety and promote the public welfare", a determination must also be
made concerning the amendment's compatibility with the des gnation of the
Lower St. Croix as a Wild and Scenic River under Federal, Minnesota and
Wisconsin Law. Minn. Stat. 104.25, subd. I provides:
The Lower St. Croix River, between the dam near Taylors
Falls and its confluence with the Mississippi River,
Constitutes a relatively undeveloped scenic and
recreational asset lying close to the largest Aer@ely
poou@atec acei of Minnesota. The preservation of tnis
jnique scenic and recreational asset is in the public
interest and oil! tenefit the hea Ith and welfare of the
citizens in Minnesota. The state of Minnesota therefore
recognizes and concurs in the inclusion of toe Lower St.
Croix River into the Federal Wild and Scenic Rivers system
by the Lower St. Croix River Act of the 92nd Congress,
Public Law No. 92-560. The authorization of this act of
the state of Minnesota is necessary to the preservation and
administration of the Lower St. Croix River as a Wild and
Scenic Ri;er, particularly @n relation to those portions of
the River which are jointly preserved and admiris7e,ed as a
Wild and Scenic River by the states of Minnesota anc
Wisconsin.
In addition to the above-quoted general statement of policy and purpose. Minn
Stat. l04.25, subd. 3(c) imposes on the Commissioner of Natural Resources
responsibilty for the administration in cooperation with appropriate
federal authorities and authorities of the state of Wisconsin of state land
and waters in conformance with this act, the federal wild and Scenic rivers
Act, and the federal Lower St. Croix River Act of 1972".
- 1 4 .
7heTerore vne Commissioner may issue a permit amendment only if it is
consistent 4itn tne itate and federal wild and scenic river statutes and
rules, is well is t4e master plan for the River and the regulatory and
management policies of the pertinent state and federal agencies.
The designation of the Lower St. Croix as a Wild and Scenic River carries
with it several conservation and maragement objectives The purposes of the
0 ederai designation are set forth in 16 U.S.C. 1271, which provides, in
;ertinent part:
:; 1; rerely leclared to be tne policy of the initeo Gtates
tnat certain selected rivers of the Ndt'on whico, with tneir
@mmel'sio environments, oosiesn outstanding'; -emarkanie
ice'll ral, ;ec'Dqlr, @tnn inj wi@ci,te, niclorir
juitji3i, or other similar values, snail oe preserved in
I-ee 1 owing condition, 3no that tney ina the,r @mmeoiate
env,,inments inall be protected for the ceneft! &nd
enjoyment of present and future generations
in addition, 16 U. S.C. 1281(a) provides:
Each component of the National Wild and Scenic River System
shall be administered in such manner as to protect and
enhance tne values which caused it to be incluied in said
system without, insofar as is consistent therewith, limiting
other uses which . . . interfere with public use and
enjoyment of these values. In such administration primary
empnasis shall be given to protecting its esthetic, scenic,
historic, archeologic, and scientific features. Management
plans for any such component may establish varying degrees
of intensity for its protection and development based on
the special attributes of the area.
Section 1274(a)(9) of the Federal Wild and Scenic Rivers Act added the Lower
St. Croix as a designated part of the system in 1972.
The River has also been similarly designated by the two bordering states.
Minn. Stat. 104.25, subd. 1 mandates the "preservation of this unique scenic
and recreational asset . . .". Section 30.27(l), Wis. Stats., includes
identical language and further provides that a purpose of this designation is
"to guarantee the protection of the wild, scenic and recreational qualities of
the river for present and future generations".
The Lower St. Croix Final Master Plan, produced as a Joint effort of the
National Park Service and the States of Minnesota and Assconsin in 1976,
states, at page 58, that "From recent boater surveys, Ot was found trat
traffic on the Lower St. Croix River reaches the iatu@3:ion point on most
summer weekepas . Therefore, no new public access points are propcsed 'n
the - @ - area from Stillwater to Prescstt . . @ The scoition Df new marina
facilities and boat access areas wi I! be ;ermi t ted on @ ) a f ter rev i e4 and
approval by t"e Lower St, 7roi. R'verway managing age,7'es"
The Lower St Croix Management :immiss@on has devel:ced nime,oui codes
for ve, mar3gement , 1 nc 1 ud 1 ng poll es re! at! ng t 7i@ 1 r a level Dpment 1
5 -
@ zi i 1 @ 3 , AP '- 1 @ j82 , 3rd cant i nu! ng to the present , tne LSCMC has !a o a po I 1 cy
ti limit marinas and marina expansions:
New smai 1 mar i nas and capac i ty expans ions of et i gt i ng sma II
mar i nas of up to a max i mum capac i ty of 40 water craft may
be permitted if the marinas are located in non-congested
riverway reaches. Larger marinas will not be permitted,
with toe exception of the pending permit applications.
(Exhibit 51C pgh. C. 1 at 3. )
At the time thin oolicy was aoopted, tne original Bayoort "arina application
was ine only pending permit application. Bayport Mar 1 na : i ear I y is not a 'new
smal@ marira ', and the capacity ewpans ion asked for in tni4 amendment is not
:re @f 3n 'eviii,nq ;mall marina@ havi no a ma<l num caoaciti of 40 watercraft
1, joci!-on, 7h, r- e, --iiel zone, T 1],a:enr to ano -ni, the M;r i i,e
congested an neak iays, given Bayport' s location between two prime Reaching
areas, the mucson Nar-cws and the Stillwater islands.
Minn. Rules 6105.0410, subp. 2, provides, in pertinent part:
New ma! na i Dr mart nas expans ions may be perml t ted on! y if
they a re @ n the pub I i c i nteres t , the i r s i ze does not exceed
the resource 1 imitations of the site, and their design
i nvo 1 ve s ut i I i z at ion of ex is t i ng harbors in the watercour se
for construction of harbors landward of the watercourse.
The above-quoted language comes from a rule specifically governing design
standards for marinas in areas protected as wild, scenic and recreational
r i vers .
The proposed amendment fails to meet the above-noted standards. Bayport
Marina does not fall within the definition of a small marina, as it already
exceeds 40 watericaft. It is further concluded that the proposed amendment is
not in the "Public interest" as contemplated by the aocve-quoted federal and
state statuten and regulations. Public safety i s Jeopardized by adding any
more boats to a!reaay-crowded be achi ng areas on peak days, an effect certain
to occur to some degree, under any view of the evidence, should this
Application be granted. The 'we 1 f are" promoted is prima r I ly t hat of owners of
the Marina and !he S5 new boat owners.
Test i mony at the hear i ng a I so demonstrates a f a i 1 u re to meet ot her
applicable criteria. The Admi ni strati ve Law Judge agrees with the testimony
of Wisconsin's District DNR Director, who is also a member of the LSCMC, that
t he propos ed Amendme n t i s con t rary to t he " pre s e rva t i on" c r i te r i a embod i ed i n
the federal and state s ta t ute s , bec a u s e the add i t i on of more boa t s " wou I d
exacerbate those condi tions whi ch are the greatest vqrear to preservation of
the river". ( E x h i b 1 t 53, P. 5) - Particularly sign4f!:ant are the resultant
increase in turbidity, erosion and litter as well an safety problems
attributable to crowding on the water and on beachen.
The Lower St. Crol i , tei ng protected under federal inl state statutes
designed to pre@e,@e i t. has al ready had its use re;t '-lei due in 7--olei
conditions. luci oitr'ctions are consistent with ;-Pie .@ng ano area z,-n
the aesthetic 3ad sienic features of this river, in i::cy!3nce with he
federal act, 74@lp 'patAreS 3@e being fuit7er ::mp,om!seo eacm yea,
- 1 6 .
Permi tti ng ljr the r t raf f i c , part i :s !a r I y from irger , 76; e pcwei T u ; coots wi
only exacerbate this condition. The proposed amendment @i inconsistent with
*ne goals and 2r i or il i es emoodied in the federal and state designations, even
if the relat i ve i mpac t of the amendment i s mi n i ma I .
The Applicant must demonstrate by a preponderance of the evidence that
conditions since the issuance of the 1984 permit have Qnanged sucn that it is
in the publi c i ntere s t to add more motor boa ts to the LowE r @ t . il Ci K Ri ver .
The evidence does not show that river use has cnangeo in 8 way vpdt can
accommodate more motor boats. The evidence does demonstrate just the
)Ppcsl te- - tha t t he r i ver has become progres s 1 ve I y mor e c @@ woed .
in an effort to demonstrate the appropriateness of gr6nt@ng ;he permi;
imerdmen t , tne Apo 1 i can t of f ered ev i dence regard i ng ; , p , mric t @l -m old 1 t 1 r na 1
,Ca t ; , rha t 1 a 1 ova t 1 3 re a s ncnae s t , ve or mgre : Dngo , - , i i , 7 : i 7 a t 1 i
that otner oeneficiai and mitigating measures proposec n tne application
should ne considered in determining the "public interent" Benefited oy tne
granting of the application.
The Administrative Law Judge agrees with the argument, advanced by counsel
for the Wisconsin DNR, liat the data collected in the :Su Study and relied
ipon by the Applicant, does not sucrort the conclusion 3CVdnced by the
Applicant. Those conclusions relate to the contributions of traffic to the
river from various sources, peak day impact and relative congestion of sail
versus motor boats, On cross-examination aid redirect, John Shardlow, the
witness sponsoring the DSU study, repeatedl downplayed the significance of
the study by characterizing it as his "only data". At one point, Mr. Shardlow
conceded that the data col I ected i n h i s study d i d not suppor t the conc I us i ons
he reacned (T 11, 245). The DSU Study was undertaken to test and analyze the
data which had been collected and analyses performed by the BAC since 1979.
The BAC data and studies, which have been characterized as some of the best
available, support the conclusion that the proposed amendment should not be
granted, Shardlow conceded that these studies, using methodologies developed
by nationally recognized experts, were "excellent" (T 1, 144),
Some of the problems associated with acceptance of the DSU study and
supportorg testimony are illustrated by its examinat @cr ;f public ramp
contributions. One component of Bayport's argument is ;hat its contribution
to traffic on the River is proportionally less than tie 55C studies show
because the BAC studies underestimate contributions from ramps where trailers
are parked off-site. The contention is that the aerial photographs do not
capture all of the trailers representing boats that are on the river at a
particular point in time because the photographs do not go far enough back
from the shore. On c-oss-examinaticn, Mr. Shardlow testified that it was his
opinion, based on personal experience, that the contrioution accounted for in
tne BAC studies from trailer iauncn ramps to total boats cn the river was low,
and Mr. Shardlow admitted that his purpose for surveying the access ramps was
to try and determine to what extent they were low. When asked whether he then
concluded that his study of his access ramps demonstrated tnat the BAC in its
aeria@ surveys :id r@t capture the volume of boats lasncned from ramps because
of off site parking, Mr Shardlow admitted that the sirvejs conducted by the
DSU T7Udv did n7t al!Cw him t: mave that conclusion le further admitted that
hi i : inc; u i i in - ae- p z an ec Do 5e- i Dna 1 - b se! vat i inn i-7 pe- iona I eYpeT 1 ences
cn the n'ien, out that the actual study was inconc@uii.e. 'T 1, 151.152). The
?Jmtnis7iati,e law 3@iie 's anacle tc accoii as much eight to conclusions
-1 7 -
developed bv i witness s selected j,3@6s,ions witn boateri and observations at
Bayport Mat 7, juring tne course ot his investigation tnan to conclusions
developed f;:m iorvey data whose systematic basis ;i inimpeachel on the record
The impact assessment offered by Bayport (Exhitit 15) of granting the
amended permit is problematic. In its exhibit, Bayport attempts to show how
a I Iowing 55 more boats on the mar i na wou Id resuit in a peak day contri bution
if only two boats to the segment of the river north of the 1-94 bridge. T n e
exhibit is f@awec in tnat it mixes a variety of different averages to arrive
at what purports to be a peak day impact. For example, the 22% vacancy rate
@elied upon Cy the Applicant (18% inner a @ater-filec exhibit) is a
preliminary :ilcjiation of the average peak day Fo- '087. it is also
onaolusted for oeatner. Toe vacanc - rate presumption ignores ovailanie
i nf ormation f -cm the oreceoi nq nurve v ve ars 183, 1 485 it livo failv tc
recognize 1-ir :r 7-e I- :i, i icr ii '70 Neg.-,l
experiences rs nignest vacancy t a[es. it ignores Ine idta that :,e BAL nas
ODSErVeO Peak iaL marina i3:ancv rates is nign as 60%.
A presumption that 50% of any boats outside the marina are beached at any
one time also causes problems in calculating impacts Mr. Sharalow admitted
that data for nighest use days in 1983 show far fewer than 50% of the boats on
the river were beached kT 11, pp. 253.55), and the same holds true for 1985
(Ex. 49S, p 8),
irrespective of the inaccuracy and inapplicability of statistics regarding
beaching, it is inappropriate to ignore the impact of beached boats. F i r s t ,
these boats have to travel to get to the beaches. The vast majority of
beaches are adjacent to or below the Hudson Narrows, so that beaching boats
use the most congested segment of the river. it is also undisputed that there
is a significant shortage of beaching areas along the Lower St. Croix, so much
so that boaters often congregate near beaches waiting for beaching space.
The Administrative Law judge has concluded that the statistical analyses
relied upon Cy the Applicant underestimates the likely contribution on highest
use lays, the very days when the r i ver c an 1 east acccf@@@li@e more traff i c . A
primary reason f3r that conclusion is that the Applicant wrongly assumes that
beacned boats should not be considered in measuring "@orgestion". As noted
above, additional beached boats add to the problems of Preserving the Lower
St. Croix's wild and scenic character.
According to the Final Master Plan, river use was at or near optimal
levels in 1971 (Ex@ 15, p. 48). Since that time, boat traffic has increased
by an average of nearly 6% per year (Ex. 49S, p. 10) In authorizing the 1984
permit, the Commissioner determined that the river could only accommodate up
to 80 motor boats from Bayport; however, river use has increased since that
time.
The LSCMC uses boat density as d measure of a3ngest4on. According ;i !987
data, six of tne zones along the lower St. Croix were few 10 acres per Coat,
and two otne,s were odproaching 15 acnes per boat Et 11, table 1), The
highest dersity zones are also those which have the :,iTe ceacning areas,
Including teiarp- '-poientel by Bayao,t motorbcati
Another 'cc Li cf the Apo I i cant : @ as e has been -he - )r 'on , tat i a 1 1 bDa : i
are is iinges7,.e as Dr more congestive than moto-ncati The evidence
- 1 8 -
4resenteo by the Aoplicant on this issue is, at best, -Conclusive the 1 a v
opinions of uiers of the Ri4er can the gamut. The most apparent conc Iun ion
@ egard i ng tne re! at!ve i mpac t i of s a i Iboat and motor oca t tr a ve I are that they
are different and non-comparable. it is undisputed that @ail and motorboats
tend to use different parts of the River, with sailboats primarily using the
less congested , wider zones and Dtorboats using the more congested areas.
Motorboats tend to beach, and beaches tend to be in the most congested
z3nes , SUCM dS vne Hudson and the Ki nn i ck inn i ck Narrows and t ne St i II wa ter
islands. Sailboats tend not to beach. The evidence shown that motorboats
;r 1 mar i 1 y i mrac t t nose are as wh i c 0 , for safety and env, ronment a I teasons, @ an
I east affcri additional ;raffic. Sailboats, on the owner and, have tneir
gre ate s t i mqac : Dn the least congested segments of the Pi ver .
: n 3 in! t D, - 7 jeek , ng to eacini its n 1 in , enra i iesmilit,es, !ne
4colicant nas arferec wrat it purcorts to be mitigating or ceneticiai
reas ires The eilience fails to demonstrate a perceptibly cubit c benefit from
tnese measures The Appilcant suggests that it is proposing to develop
beach 1 ng at Kol 1 i ner Park to accommodate approx i mate 1 y I 00 boats . However,
the amended application substantially withdraws that proposal. Bayport is now
proposing to provice up to $20,000 toward the developmert of the ParK if the
Development is undertaken by the states of Minnesota or W'sconsin. On
:ross-exami nation, the Mar ina manager expressed a reluctance to develop Or
Doerate the Park. He testified that he believed that the city of Stillwater
was willing to negotiate a lease, that such negotiations nave continued since
1983, that there have not teen any communications in over a year, and that the
Drocess was now dormant. (T III, 494, 525, 541) There in no demonstration of
what the proposed monetary contribution would buy or *nether additional monies
would be necessary to make the park useable. Neither state has expressed an
interest in operating this Park, and the Applicant's proposal is, as the
record now stands, more a speculation than an implementable project.
Bayport'n other proponed mitigation is to rip rap, vegetate and provide
limited beacning space on :he east side of the marina Pretty. Although
characterized as an improvement to screen the marina from the river and to
prov i de aes t4e;7 c enhancements, tne propos a I is in f act neces s a ry for Bayport
to comply with :ne screening and vegetation requirements @n its ex isting
permit and in orier to comply with Minn. Rule 6105@0410 sjbp, 2 . A promise
to do something wnich the promisor is already obligated to perform does not
provide an additional benefit or constitute mi tigation of the detr imental
impacts of granting the permit amendment.
Finally, it is noted that the Administrative Law Judge agrees with the
argument advanced by counsel for the Minnesota DNR regarding why the
Commissioner of Natural Resources authorized a permit fcr 80 motorboat slips
and 151 slips 'or other usage in nis Order following tve t@rst Bayport Marina
Hear i ng . The Commissioner found that he was not obligated 1 egally to allow
construction Df a marina, 'but that does nct put tc rest ?he question of
fairness" Par reasons stated in hi s Order the Commissioner concluded that
what was Lei rg '3ffered" to Bayport Marina was "essential! y" an 80-boat
marina. T h i n aides that the Ccmmi ssioner reasoned ;not on I v motorboats ma0e
in impa:t cr "e ;Ive- He :on s i ce! ed adliig 9C m7tTr7 i7 i 3 ""p3 s ' b le i - d
IrClenr 3 '10'- -' n :!On" tE-t a' :' @he rlrl;V-P t it:, -1 FIT -hP 1 I e !
St. C@oi, Natlinal Scenic qiverway" in the Opinion ' e Adm,nintrati ve t aw
rude . the L[s - Lact; took a f i nanc t al gamble in 3ec'i,-; ri construct a full
- 1 9-
@' 3 1 s 1 i P ma na in !984, after te,ng granted a permit o6 ioi @w Litt
Commissioner i Order following the first hearing The testimony of Mr.
ParKhill, to toe effect that toe Marina would "try other mixes of boats at
the Marina if that originally authori zed proved unsuccessful Pi nancially, is
not supported by the record. It is clear that the Commissioner of Natural
Resources decided in December of 1982 that the Lower St. Croix River could
accommodate only 80 motorboats from the new marina authorized in his order.
. he record in this proceeding indicates that the authorization of another
t5 motorboats would be inconsistent with the 1982 order because the River has
gotten more crowded. Therefore, the Administrative Law judge has recommended
a denial of toe permit amendment application.
The 4ooiicant makes the equi table argument that inv 1 q;act of ljding
i5 motorboat nlins to their mar! na is alleviated bv ine n t ov iilon 7i 110
Ee3cnlnc 103nis it Kolliner Si,. 3no A mpg Sloe r-, -I : Fo - 7" @ -
argument is urDeTSUdSl ve DeC3USe tne Kolliner ParK OCIPC Sdi, woicn Accounts
@or approximately 90% of the orocosed new ceacning a,ea. s too vague, 1 n
addition, there in no evidence tnat establishes how manv of the 55 additional
Motorboat operators would use the Vol I i ner Beach , or ;he ten beaching spaces
Adjacent to the Marina as opposed to the current beaches @n the Hudson Narrows
and elsewne-e. it is reasonable to assume that some of these people would
congregate on the Hudson Narrows beaches and woul d contr i bute to the al ready
existing problems toat, for the reasons stated above, act as a bar-to the
Marina expansion proposed.
Another equitable argument which the Commissioner may consider but which
was not considered in the development of evidence in this case or in the
development of Admini strati ve Law Judge ' s Recommendaiion , i s the notion that
other control measures can be taken to lessen the impact of crowding on the
River, apart from limiting access from marinas. These other measure include
speed control s , the closi ng of other access poi nts , and the setti ng of time
parameters within which certain slip owners would not be allowed to enter the
R i v e r . Such policy alternatives, if considered and commented upon by the
Admi ni strati ve Law judge , would consti tute "management aivi ce" outs i de tne
legal parameters of this hearing record. The judge ittetated to limit this
record to an anal ys i s of the impact of addi ng 55 n&N s @ 1 ss and creati ng , wi th
that addi tion , !he potenti al of 55 new boats or the Liwen St - @roi x The
record , and thi s Report , were developed wi th a vi ew to 1 1 Di t 1 ng the anal ysi s
to the impact of granting tne Amendment on the River as it exists. The
current condi tions on the River , as opposed to what caused them, were a
g i v e n " @
The Applicant attempted to introduce evidence regarding the economic
hardship that would face the enti re Bayport Mari na project if the Amendment
Application is not approved. The Administrative Law judge excluded that
information from the record. He judged it immaterial ;: ;he issue of what
impact granting of the Amendment would have on the Pive- ;urface. The name
reasoning applied to his decision to exclude evidence @egarding what else
might he dcre to alleviate River crowding (limitation if ramp use, more speed
and "no wake" zones) and regarding what other factor; c3u;e Congestion and
danger ( such as impai red boat operators , i ncompetent vper ators and "npeed"
tcati ) -he -,Jge teloeves Ve was correct, legally, - i'miti@g scope cf
!nation in hp :,d l@ the :nmm'ii!Dner pointed -kt p i'e @weoei
"that does not out to rest the question of fairnesi
.2 0.
7ne AdMini3linti@e Law judge is aware tnat other measures can We taken to
Compensate for the ertects ot adding 55 motorboat slips aT Bayport Sucn
options are left to the Commissioner and other River managers. They can
choose to keep Bayport's allotment at 80 motorboat slips, but the
Administrative Law judge is convinced that doing that without making changes
elsewhere would not be in the public interest. What is in the public interest
is left ultimately to the Commissioner and other River managers. They may
decide that something should be done, on their part, to a low more powerboat
operators access from Bayport Marina. The demand is certainly high and it can
rever be fully satisfied. The River's proximity to a large metropolitan area
that seeks outdoors diversions during the simmer accs pressure to recreate on
-he St. Croix. The obvious implication from the record in that the Warina's
Operators need the rental income generated from the add)t onal powerboats to
nontinue operating. it !; equally rleac. nowever, that "he River managers are
-qe- -o i ;Ca loiliat@Dr to :ce, p Mon-,noal Ti Cn it 11/nor, - n! tor3USe
people want inem in6,or because so coin, mignt alleviate 'ne consequences of a
ousiness decision to fuliv ceveiop Tne iitp 'up front
It is possible that this controversy is beyond the scope of a contested
case hearing to handle adequately. Altern rive dispute Psolution, such as a
mediation process. may ultimately resolve i@. The River , managers may
decide, in the future, to limit Public access to the Lower St. Croix and
encourage marina expansions. Such considerations are be ond what the
Administrative Law judge can recommend here. Such broad r implications belong
as considerations entering into resolving a dispute alternatively--through a
mediation rather than an adversarial process. It is the ;udge's understanding
that this dispute came very close to a mediated resolution, Perhaps such a
process can still be utilized to put the matter to rest.
The Minnesota DNR argued that this matter should not have been heard
because the Commissioner's December 1982 Order, having not been appealed, was
dicata and "nothing has changed since". The Admini@trative Law judge
rejected that argument because he believed the Applicant had a right to
remonstrate that conditions had changed in its favor since 1984. After
consideration of this ecord, he concludes that they have not made that
demonstration.
A final matter left unresolved in formulating the reio-d was a determina-
tion by the Judge of which portions of Bayport Exhibit 31 (Direct Testimony of
Bob Berg) would be excluded from the record as "management advice". it has
been decided to exclude the first 12 lines on page five, the first 24 lines on
page six, and the last 10 lines on page seven of the Exhibit. The noted
portions were not considered by the Judge in formulating inis Report.
Prior to assignment of this matter to the Administrative Law Judge as a
contested case, the parties to this case, along with re5rosentit@;es of the
National Park Service and U.S. Army Corps of Engineers, 3ttemptec to resolve
this dispute alternatively through a mediation process @orijcted by another
Administrative Law V6dge in the Office of Administrative Knari-ji.
The undersigned administrate Law Judge has not d2n:@inel ;he mediation
E,ccess with the Admin'strat'ae law judge 3TS!gred t: -,e -eciat'D@ :r with
an@are el ne 4e - Anaware of hat Dccurred @- t!e L 7 '-!OLT o@ :D won
was involved and that the process was a long one. Nc- -., qe discussed the
sub!Ect matter of the contested case with anyone
R.C. L.
- 2 1 -