Commentary: Kitchens’ on West Side, Let the Healing Begin

By Representative Joel Kitchens

While I normally make it my policy not to respond to letters to the editor, I feel it is necessary to clarify my position regarding the Sturgeon Bay waterfront, which Nancy Aten has intentionally misstated. I have consistently stated throughout this controversy that I would not introduce legislation to set the Ordinary High Water Mark (OHWM) for this property. The dispute has gone to court, as is appropriate, and the judge ruled that the experts at the DNR should set the OHWM. Once the DNR has announced their decision, it is my intention to introduce legislation to reaffirm it, saying that the legislature recognizes their determination as the OHWM. I am announcing my intentions before we know what their determination might be, so that I cannot be accused of taking sides in the dispute. I am doing this out of concern that one side or the other will appeal the decision and this could drag on for years. I do not believe that a continued court battle is in the best interest of the citizens and taxpayers of Sturgeon Bay.

Ms. Aten states that the determination should be made by “knowledgeable natural resource professionals” and I could not agree more. Despite her statements, determining an OHWM on filled land is not a simple matter. If it were, the DNR would not have taken these many months to make it. She quotes an attorney who retired 10 years ago in saying that determining the OHWM on these filled lands is not a difficult task. I have spoken with current DNR scientists and they do not share this opinion. The intent of any legislation I might introduce is to support and reaffirm the decision of these natural resources professionals.

To her second point, I did not sit on the board of the Wisconsin Coastal Management Council in 2011-2013 when grants were issued to the City of Sturgeon Bay, but the grants were entirely appropriate regardless of the OHWM determination. These grants were consistent with the public trust and served to provide public access to the waterfront.

The Public Trust Doctrine is a vital part of our constitution and must be protected. The framers of the constitution were intent on protecting navigation, however, and clearly did not envision the circumstances we face today, particularly in dealing with historically filled lakebeds. My goal is to support the DNR professionals in their determination and put an end to the politicizing of this issue. I love Sturgeon Bay and it is painful to watch the division and bitterness that has arisen from this issue. Our city is not defined by this one little parcel of land. It is time for a decision to be made and for the healing process to begin.