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MDEQ to decide on Bete Grise South permit
MARQUETTE - The Michigan Department of Environmental Quality (MDEQ) must decide by Thursday, July 27, whether or not to grant a permit to Lake Superior Land
Co./Champion International/International Paper to build a road across a wetland at Bete
Grise South, on the east side of the Keweenaw Peninsula, near Lac La Belle.
The purpose of the proposed road is to provide access to a potential lakefront
residential development the company wishes to build just south of the Mendota Lighthouse on Lake Superior.
Keweenaw County and Grant Township officials, some businesses and some local
residents have supported the project because they believe the potential lakefront
properties will provide a property tax base for the county and the township.
Opponents of the project include local permanent and seasonal residents; conservation
and environmental groups such as The Nature Conservancy, the National Wildlife
Federation, the Lake Superior Alliance, the Association Working Against Keweenaw
Exploitation (AWAKE), Friends of the Land of Keweenaw (FOLK); and Native
American representatives. Both individuals and groups have written to the MDEQ and
the Army Corps calling for preservation of the delicate ecosystem of the wetland site,
which The Nature Conservancy has identified as a globally rare Great Lakes Marsh.
Native American leaders have expressed concern about the projectís potential impact
on fishing and spawning areas at Bete Grise and on cultural resources believed to be on the property.
Ginny Pennala, district supervisor of the MDEQ Land and Water Management Division
in Marquette, said she is waiting for some important information - including the written
report of a recent plant survey made by a state botanist - before issuing a final decision
on the road permit. State law requires the decision be made within 90 days of the last public hearing on the issue, held in Mohawk on May 1.
"This is going to be a final decision," she said. "Weíve considered everything that is
pertinent to the statutory criteria . . . Itís a district decision. Itís not being made by Lansing."
Pennala added the decision could be contested in a hearing in Lansing. In an
administrative (contested case) hearing, the petitioners and the department each present
evidence for their case, and an administrative law judge decides.
"Anybody can request a hearing on any action or inaction of the department," she noted.
Three state statutes under Public Act 451, the 1994 Natural Resources and Environmental Protection Act, govern the issuance of this permit:
- Part 301, Inland Lakes and Streams, which requires a permit for certain
activities impacting wetlands, including dredging or filling bottomland; constructing
a structure on bottomland; and structurally interfering with the natural flow of an
inland lake or stream. ("Bottomland means the land area of an inland lake or
stream that lies below the ordinary high-water mark and that may or may not be covered by water.)
- Part 303, Wetlands Protection, which requires a permit for depositing or
permitting the placing of fill material in a wetland; dredging, removing or permitting
the removal of soil or minerals from a wetland; constructing, operating or
maintaining any use or development in a wetland; and draining surface water from a wetland.
In addition, section 30311 of this statute states: "A permit (for one of the
activities listed above) shall not be approved unless the department
determines that the issuance of a permit is in the public interest, that the
permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful."
- Part 17, the Michigan Environmental Protection Act, or MEPA, which
supplements the first two statutes by stating that alleged pollution of natural
resources shall not be permitted if there is a feasible and prudent alternative
consistent with the reasonable requirements of the public health, safety and welfare.
The proposed project also requires a federal permit from the United States Army Corps
of Engineers under Section 404 of the Clean Water Act, which covers putting fill in
wetlands adjacent to navigable waters of the United States. The wetland to be impacted by the proposed project is adjacent to Lake Superior.
The MDEQ and the Army Corps issued a second joint public notice on the project in
March, 2000, after which the MDEQ responded to public comments by calling a public
hearing May 1, almost a year after the first public hearing on the project, held on July 14,
1999. Both hearings were held in the Mohawk School and attracted large audiences.
At the May 1 hearing, several proponents of the application, including some county and
township officials, said they believed the project was in the public interest because the
proposed residential development would bring tax revenues to Keweenaw County and Grant Township.
Other individuals and group representatives at the hearing questioned the need for the
proposed residential development that the road is meant to access and expressed
concern about the environmental impacts of both the road project and the potential development.
Timothy Bureau, president of Resource Management Group, Inc., Environmental
Planners and Consultants of Grand Haven, Mich., addressed the question of whether or
not the project is in the public interest at both public hearings and in letters to the MDEQ
and the Army Corps of Engineers. Bureau represents the Mendota Conservancy and
Gary Kohs - owner of the Mendota Lighthouse, which is adjacent to the project area.
"There is no need for the project," Bureau states in his May 8 letter. "A tour of
Keweenaw County prior to the Hearing revealed a significant number of homes,
including those riparian to Lake Superior, with ëFor Saleí signs. The applicant has failed
to submit any information regarding the need for additional housing in Keweenaw County."
As Bureau indicated in his letters and in his statements at the May 1 hearing, Part 303
lists need as one of the criteria for determining whether or not the project is in the public
interest. Under section 30311, #2 of this statute, the MDEQ is expected to evaluate: "(a)
[T]he relative extent of the public and private need for the proposed activity" and "(b)
[T]he availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity."
Adds Bureau, "Lake Superior Land Company currently has an inventory of 127 platted
lots in Keweenaw County which remain unused. This number does not include the
applicantís subdivision at Bete Gris North, where all remaining lots have been withdrawn
from the market - Regardless of need, there remain many alternative locations in which
to achieve the basic project purpose of providing residential housing. The applicant
attempts to justify using the subject location because no other site can provide what they
believe their customers are looking for. Thus, the applicant is supporting the fact that
Bete Gris South is a rare resource. It is ironic the rarity of this geomorphological
complex is being used as justification for its destruction."
Pennala noted her department has considered Bureauís comments on alternative
locations in their evaluation of the road permit application. Cary Gustafson, district
representative for MDEQís Land and Water Management Division in Crystal Falls, has
been working with Pennalaís regional office on the decision-making process for the application.
At the May 1 hearing an environmental and a civil engineer raised questions about the
design and location of the proposed road, indicating the road as planned could seriously
impact wetland hydrology and prevent natural flow. They pointed out that the proposed
hydrologic equalization channels could degrade to a non-functional status as they
become clogged with fines and organic detritus, thus preventing the flow of water to and
from Lake Superior. Their comments were based on U.P. Engineers and Architects
revised design for the road, which was submitted to the regulatory agencies in January,
2000, as part of their revised report on the project. The January report was a response
to issues raised by the MDEQ in their September, 1999, denial of the permit.
One of those issues the applicant was asked to address was that construction methods
could impact surface and subsurface flows associated with stream and wetland hydrology.
Since their January report, however, it appears Lake Superior Land Co. and U.P.
Engineers and Architects have not made any changes in the road design.
Mark Pontti, public affairs manager for International Paper, said to his knowledge the
only significant revision of the project plan since the May 1 public hearing was a second
plant survey by Steve Chadde in late May, which, like his first survey last fall, found no
endangered or threatened plants in the area of the project.
"We feel the plan that was discussed at the last public hearing was sound and was what
the DEQ and the Army Corps should consider," Pontti said. "The Steve Chadde plant
survey proved . . . what we have said all along - that there are no circumstances that should prevent us from obtaining the permit."
Pennala did not disclose the name of the state botanist who did the most recent botanical
survey of the area, since she was still waiting for the final report on the survey.
The MDEQ is also required to take into consideration the secondary impacts of the
upland development on the wetland, including the possibility of pollution by septic effluent.
"Thatís one of the things weíre considering - possible secondary impacts (on the wetland)," she said.
Pennala said she had not seen a plan for the upland development or any evidence that
the applicant had applied for septic permits from the Western Upper Peninsula Health
Department. She noted sometimes a decision may be made on the lack of information.
"If you donít have the information . . .then you can assume (there will be) secondary
impacts," she added. "Weíre assuming that there could be secondary impacts because of
the groundwater table being close to the surface on the upland."
While the MDEQ is only concerned with secondary impacts on the wetland, the Army
Corps has the responsibility of looking at secondary impacts of the upland development
since, in this case because of the wetland, a federal permit is required to access uplands for development.
Richard Gutleber, Army Corps spokesman in the Marquette office, said secondary
impacts from the development - besides septic systems - could include such possible
pollutants as fertilizer or gas and oil from automobiles that could affect water quality.
Residential development could attract scavenger predators such as skunks and
raccoons, which have an effect on wildlife, he added, and dirt from the road could kill
insects that birds eat, so that birds would have to move to other areas.
"Because of our federal 404 responsibility," Gutleber said, "we will look at secondary
and tertiary impacts (of the upland development)."
He noted the Corps could issue a permit with conditions attached, but they would have
to be conditions they could legally enforce. They could not, for example, impose a
condition related to septic tanks, since the health department has jurisdiction over those.
The secondary impacts could cause the Corps to deny the permit if they determined that
the cumulative adverse impacts were more than acceptable, he said.
Unlike the MDEQ, the Army Corps is not under a time constraint to make a decision.
Gutleber said he is still working with U.P. Engineers and Architects on the wetland
mitigation plan, which is not yet complete. He said he could issue the permit with a
condition that they complete the wetland mitigation plan before beginning the project.
Gutleber noted also that the road construction and the construction of wetland mitigation could happen simultaneously.
"In this case I expect the mitigation plan is going to be part of both permits," he said.
"We want a wetland that tries to replace the functions that are provided by the impacted wetland."
Some functions, or benefits, of natural wetlands, as described in Part 303, include:
providing breeding, nesting, cover and feeding grounds for wildlife, waterfowl and rare,
threatened or endangered species; protection of subsurface water resources and
provision of valuable watersheds and recharging ground water supplies; pollution
treatment by serving as a biological and chemical oxidation basin; erosion control by
serving as a sedimentation area and filtering basin; sources of nutrients in water food cycles and nursery grounds and sanctuaries for fish.
Wetland mitigation requires monitoring, normally every year for five years, Gutleber noted.
"We could require 10 years of monitoring," Gutleber said. "Itíll be a joint review by the
state (MDEQ) and the Corps."
While environmentalists have questioned the ability of the man-made wetland to replace
the functions of a natural wetland, Gutleber noted the area selected for the wetland
mitigation does have wet soil. The question is whether or not the hydrology will support true hydric soils and plants.
Gutleber said it may take more time for the Army Corps permit decision, but he wants to
make a timely decision to be fair to the applicant.
"Weíll make the decision when we have all the facts, and the timeís right," he said. "Our
decision, in this case, will probably come after the stateís decision."
If the MDEQ denies the permit, the Corps cannot issue a permit.
- Michele Anderson
July 26, 2000
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