MDEQ denies road permit for Bete Grise  South

MARQUETTE ì For the second time within the past year the Michigan Department  of Environmental Quality has denied Lake Superior Land Companys application for  a permit to build a road across a wetland at Bete Grise South.

The purpose of the road is to access a potential lakefront residential  development near Lake Superior. The application, which included a January, 2000,  revised report by U.P. Engineers and Architects, seeks to place about 3,600  cubic yards of fill in a 0.77 acre area of wetland contiguous to Lake Superior  for building an access road to the upland the company has hoped to develop. The  revised report includes a plan for a 10-foot clear span bridge crossing of a  creek that outlets to Lake Superior.

In a letter to Walter Arnold, director of sales and marketing for LSLC/International  Paper, Virginia (Ginny) Pennala, district supervisor in the Marquette office  of the DEQ Land and Water Management Division, states: "After due consideration  of the revised permit application, public comment, the site specific wetland  characteristics, and other pertinent materials, the Department finds that the  proposed project will have significant adverse impact on the natural resources  associated with the wetland."

Pennala notes in the letter that this wetland is considered "the best example  of this type of coastal wetland in the state, based on its size, diversity and  hydrological integrity."

She then mentions several negative impacts on the wetland of both the  proposed road construction and the proposed project: "The proposed road  construction will impact the surface and subsurface flows associated with the  hydrology of the wetland. The proposed project would severely and negatively  impact established biological communities, which provide habitat for migration,  breeding, nesting, feeding, and rearing of a wide variety of wildlife species.  It is further determined that this project, if authorized, would adversely  affect the wetland functions and result in the likely degradation and/or  impairment of associated water resources."

The National Wildlife Federation, which has expressed its opposition to the  proposed project both at public hearings and in letters to the DEQ, was happy to  hear of the decision.

Said Tony DeFalco, NWF’Ä™s Lake Superior Project Organizer, "NWF is pleased  with the DEQ's and Corps decision to protect the globally rare resource that is  Bete Grise. Protecting a place like Bete Grise is a step toward fulfilling the  Binational Program to Protect and Restore Lake Superior.  Lake Superior's  coastal wetlands are invaluable, and acting to protect them from unnecessary  development will help maintain the integrity of the ecosystem for years to  come."

While some local county and township officials have supported the proposed  project on the basis of their perceived need for a tax base, NWF is not alone in  finding the proposed development at Bete Grise "unnecessary."The DEQ letter  further supports its denial of the permit on the premise that "a feasible and  prudent alternative exists."

Pennala cites Section 5(2) of Part 17 of the 1994 Natural Resources  and Environmental Protection Act, Public Act 451. She explains that Part 17  "prohibits the Department from issuing a permit for activities that will or are  likely to cause pollution, impairment, or destruction to the States natural  resources when there exists a feasible and prudent alternative consistent with  reasonable requirements of the public health, safety, and welfare."

The letter notes LSLC has not demonstrated that there are no off-site  alternatives which would minimize or avoid resource impacts. Pennala adds the  DEQ believes on-site alternatives exist.

"There is existing upland available on the parcel, located along the Gay Lac  LaBelle Road," Pennala writes. "Furthermore, there is existing residential  development on the upland area where the additional development is being  proposed. This development area has historically been and is currently being  accessed by watercraft."

Mark Pontti, manager of public affairs for International Paper, said he was  not sure of the exact location of the alternative sites referred to in the  letter. However, he noted Friday afternoon that the company has had the letter  of denial for less than 24 hours.

"Itís being reviewed, and Iím sure it will be discussed over the next several  weeks," Pontti said.

Timothy Bureau, president of Resource Management Group, Inc., Environmental  Planners and Consultants of Grand Haven, Mich., said he is aware of the  "feasible and prudent alternatives" that LSLC could develop without impacting  the wetland at Bete Grise. He said the company owns many platted lots in  Keweenaw County which remain unused.

"Good deal!" was Bureaus spontaneous reaction to the DEQ decision.
Bureau, who represents the Mendota Conservancy and Mendota Lighthouse owner  Gary Kohs, whose property is adjacent to the proposed project site, said the DEQ  permit denial is stronger than the previous one, which asked for additional  information.

He noted especially the strong language of Pennalas letter, which reads,  "Based on the foregoing findings, your revised application is hereby denied. A  permit cannot be granted to place fill for the construction of a road in the  wetland."

"I feel that this is a strong denial because it not only recognizes the road  impacts but recognizes the impacts of the project as a whole," Bureau said.  "Theyíre taking a pretty strong position here."

Kohs was equally happy about the decision.

"Iím delighted that the DEQ made the correct decision," he said. "I think  itís time for the people of Keweenaw to open their eyes to exactly what Lake  Superior Land and International Paper are trying to do to the Keweenaw."

Janet and Bud Avery of Gratiot Lake, both members of the Association Working  Against Keweenaw Exploitation (AWAKE) agreed the DEQ did the right thing  according to state laws. They both said they believed Lake Superior Land Company  had plenty of alternative residential development options.

Greg Kudray, a wetland specialist who wrote to the DEQ on the projects  potential impacts to the delicate ecosystem of Bete Grise wetland, agreed the  DEQ decision was an important one and noted the availability of alternative  development sites.

"I believe the DEQ decision recognizes the uniqueness of the patterned  wetland at Bete Grise," Kudray said. "Along with other ecologists, I have  emphasized to the DEQ that there are very few undeveloped coastal wetlands that  have this kind of beach ridge and swale topography, created centuries ago by  receding Lake Superior shorelines. There are many other areas in the Keweenaw  that can be developed without threatening the very special resources and habitat of Bete Grise."

Kudray added, "It isn't a question of development or no development, it's a  question of development in an appropriate location that doesn't destroy unique  resources. I hope the new parent company of Lake Superior Land Company,  International Paper, will realize that proper resource stewardship involves a  combination of resource use and habitat protection, and won't continue to pursue  a permit."

In addition to Part 17 of the 1994 NREPA, PA 451, as amended, the DEQ  regulates wetlands under PA 451, Part 301, Inland Lakes and Streams, and Part  303, Wetlands Protection. The DEQ letter also informs the applicant that the  proposed project is inconsistent with the Michigan Coastal Management Program,  and thus federal permits cannot be issued. Pennala notes the federal Coastal  Zone Management Act of 1972, as amended, gives the applicant the right to appeal  to the United States Secretary of Commerce within 30 days of the receipt of the  letter.

Richard Gutleber, United States Army Corps of Engineers spokesman in the  Marquette office, said earlier this week that if the DEQ denied the permit he  could not issue any federal permit. He was not available for further comment as of Friday afternoon.

Kim Rice, field coordinator for the DEQ Land and Water Management Division in  Lansing, said LSLC has a right to appeal the permit denial in an administrative  (contested case) hearing.

"There is an appeals process for any action the department takes," she said.  "They have 60 days to file that petition." 

Pontti said he thought the appeals court would be a first avenue of action,  but added he had not had the experience of this type of appeal in his tenure  with the company.

"Weíre going to take some time to evaluate our options," he said.

Bureau said Michigan law requires the applicant to exhaust administrative  remedies before taking their appeal to a circuit court.

"If Lake Superior Land appeals," Bureau said, "I will recommend to the  Mendota Conservancy that we petition to enter the contested case hearing process  as a third party to assist the DEQ in defending and sustaining their denial."

He added the conservancy, as an adjacent landowner, has the right to enter  the process as a third party and would have equal status with the DEQ as a  defendant in the case.

"The administrative appeal process strives to be as fair as possible to all  parties," Bureau said.

Some Keweenaw County residents, but not all, were delighted with the DEQ  decision.

Said Lac La Belle resident Sandy Britton, "Our reaction down there at the  camp (Paul and Anita Campbellís) when we got the word was a ringing YES!"

Robert "Dutchy" Piche, whose home faces Mt. Bohemia, also had a positive  reaction.

"Wonderful! I was happy when I heard that," Piche said. "Iím really pleased  with it, and now I hope they work with the ski hill. Iím not happy about the ski  hill."

Keweenaw County Board Chairman Lyle Peterson had a different reaction.

"We wonít get near the tax benefits we would have gotten if it was  developed," he said. "If it was me theyíd have a lawsuit."

He added the county needs the taxes a lakeshore development could provide.

 Michele Anderson
July 28, 2000