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Committee postpones wetlands boathouse rule after concern over blanket ban on dug‑in basins
Summary
The Administrative Rules Committee postponed Department of Environmental Services wetlands rule 25-127 after members questioned language that read as an absolute prohibition on new dug‑in boathouses; staff attorney said waiver process exists and agreed to submit written conditional language.
The Administrative Rules Committee postponed Department of Environmental Services (DES) wetlands Rule 25-127 after committee members raised concerns that the rule text read as an absolute prohibition on new dug‑in boathouses.
Courtney Lockwood, a staff attorney at DES, told the committee that “there is rarely ever a prohibition in rules because we have a waiver process.” Lockwood said the agency could revise the language so the approval criteria make clear that over-water structures are the department’s preferred, less-impactful option but that an applicant could request a waiver or demonstrate the dug-in basin was the least-impact alternative in rare circumstances.
Committee members questioned whether the rule’s wording exceeded the agency’s statutory authority by effectively forbidding a construction type without allowing for exceptions. One legislator said the committee’s concern was that the language “makes it sound like it's an absolute prohibition” and that the statute’s intent was to favor less impactful alternatives rather than to categorically ban dug‑in basins.
DES proposed options including removing the absolute prohibition language from subsection (a) and instead adding conditions to the approval criteria in subsection (b), or explicitly referencing the agency’s waiver rules (identified in the discussion as EMVWT 204) as an exception. Lockwood said some dug‑in basins could be necessary in extremely rare circumstances tied to navigational hazards, but that dug‑in basins are “much more disruptive, to the shoreline, to the neighbors, to everyone to dig out and carve out your shoreline. Most people do not want these.”
Committee members concluded that the matter required more precise drafting and moved to postpone the item for one month so DES could file written conditional approval language. The postponement motion was seconded and passed by voice vote. The committee asked the department to submit a written recommendation for a conditional approval that the committee could consider at the next meeting.
The item had been removed from the consent calendar earlier in the meeting to allow fuller committee discussion. The postponement preserves committee review and requests clearer rule text that balances environmental protections with the agency’s waiver authority.
