Kitchens Plans High Water Mark Legislation After Sturgeon Bay Hearing

State Representative Joel Kitchens announced on Aug. 31 that he will introduce legislation to end the disputed Ordinary High Water Mark (OHWM) on the Sturgeon Bay West Waterfront after the Sept. 6 declaratory hearing by the Wisconsin Department of Natural Resources.

“Otherwise this could drag on for years,” Kitchens told the Pulse. “I’ve told the Friends [of Sturgeon Bay Public Waterfront] group that. I’ve told the city that. I just don’t want one group to say after it’s over that he sided with them. I just think for the people of Sturgeon Bay, everybody wants it done. To have this drag out in appeal a couple more years and have the dirt piles sit there, I just don’t think that’s in anybody’s best interests.”

Kitchens had earlier been chosen to mediate a solution between the city and the Friends of the Sturgeon Bay Public Waterfront, the group that sued the city regarding the OHWM, but that attempt was fruitless.

Kitchens said the sorely needed legislation will include an explanation of how the OHWM was determined.

“It’s become a state issue because of the public trust doctrine,” he said. “Sen. [Rob] Cowles and I have talked about it. I do plan to work out how an ordinary high water mark is determined on these filled lands. The big issue right now, there really is no definition on filled lands like that. It’s actually a huge issue when you consider that every community on the Great Lakes has land like that. We need to have something more certain because you can’t have every one decided by a lawsuit. When the DNR was asked to make a determination, they said, ‘That’s an impossible task because there is no definition. We’re going to get sued no matter what we say.’ So there needs to be a definition in here, some way of determining that.”

In an April 14 letter to the city, the DNR issued its preliminary determination based on aerial photos, lake surveys, maps and historical descriptions of the area, but added that the determination would be an educated guess because “the physical or biological indicators typically used to locate the OHWM at a site have been destroyed at this site.”

That preliminary ruling would have allowed for the disputed hotel to be built on that parcel, however, since then hotel developer Bob Papke has pulled out of the agreement and filed suit against the city.

“I don’t know what the determination’s going to be,” Kitchens said. “We’ve got the preliminary, obviously, but we don’t know if they’ll go with that or not. The one caveat I’ll put in, unless they come up with something where you totally can’t put anything at all, or if both sides come to me and say, ‘Hey, we both want you not to do it,’ Then I won’t do it.”

The DNR’s declaratory hearing is at 3 pm Sept. 6 in the Jane Greene Room of the Sturgeon Bay Public Library.