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Document
defends DEQ permit denial for Bete Grise South
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The Michigan Department of Environmental
Quality has twice denied a permit to build a road that would
access a potential residential development on this stretch of Lake
Superior shoreline at Bete Grise South. (Keweenaw Today file photo)
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GRAND HAVEN ’Äì A document
based on state and federal laws for protection of
environmental and historic resources could,
according to its author, settle the contested denial
of a permit to build a road across a wetland at Bete
Grise South, an area of Lake Superior shoreline on
the east side of the Keweenaw Peninsula.
The document, a Motion
for Summary Disposition, was filed on May 18, 2001,
by intervenors in the case, who are supporting the
decision of the Michigan Department of
Environmental Quality (DEQ) to deny the permit to
Lake Superior Land Company (LSLC), now a subsidiary
of International
Paper (IP). The intervenors ’Äì Mendota
Lighthouse owner Gary Kohs and Timothy Bureau,
author of the Motion and president of Resource
Management Group, Inc., Environmental Planners &
Consultants in Grand Haven, Mich. ’Äì claim
LSLC did not meet statutory/administrative timelines
and requirements in their appeal of the permit
denial.
The DEQ Office of
Administrative Hearings in Lansing ordered both
parties in the case (LSLC and the DEQ Land and Water
Management Division) to respond to the Motion by
Friday, June 15. As of 3 p.m. on June 15, the Office
of Administrative Hearings had not received any
response ’Äì by fax or by mail ’Äì from either
party. However, a response postmarked by June 15
would be acceptable, according to a representative
of that office.
Neither the DEQ Land and Water
Management Division nor LSLC/IP’Äôs Public Affairs
Manager Mark Pontti would comment directly on the
case, which is pending.
Pontti simply said, ’ÄúAs for
Bete Grise South, we continue to evaluate our
options.’Äù
Karl Weber of Plunkett and
Cooney (Marquette), LSLC’Äôs attorney, said he
intended to respond to the motion by the deadline
but added he was not prepared to comment on the
case.
Harold Martin, assistant
attorney general, who is defending the DEQ Land and
Water Management Division in the case, said on June
8 that he expected to file a general agreement with
the motion.
’ÄúI don’Äôt disagree with
their motion. I’Äôm prepared to defend the DEQ’Äôs
position,’Äù Martin said.
Since September 1999, the DEQ
has twice denied LSLC a permit to build an access
road through this wetland because of potential
impacts to its ecosystem. LSLC has stated that the
purpose of the road would be to access a proposed
lakeshore residential development on about a mile of
upland adjacent to the wetland and south of the
Mendota Lighthouse.
After a public hearing in
Mohawk on July 14, 1999, followed by a public
comment period, the DEQ denied the permit
application on September 3, 1999 ’Äì based on Part
301, Inland Lakes and Streams, and Part 303, Wetland
Protection of the Natural
Resources and Environmental Protection Act (NREPA),
PA 451 of 1994, as amended. After
LSLC provided the DEQ with additional information,
including archaeological and plant studies, a second
public hearing was held in Mohawk on May 1, 2000. The
DEQ denied the permit a second time in July 2000.
Officials of the DEQ Land
and Water Management Division based their second
denial mainly on impacts to the wetland hydrology
and wildlife habitat. They also noted nearby
alternative sites where the company could put the
proposed development.
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Timothy Bureau, president of
Resource
Management Group, Inc., Environmental Planners &
Consultants in Grand Haven, Mich., is an intervenor
supporting the DEQ in an Administrative Law appeal by Lake
Superior Land Co. of the DEQ's denial of a road permit at Bete
Grise South.
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In September 2000, LSLC filed
a petition for a DEQ Contested Case Hearing on the
permit denial. Kohs and Bureau later applied to
intervene in the case in support of the DEQ Land and
Water Management Division. On May 18, 2001, Bureau
submitted the Motion
for Summary Disposition, based on five instances in
which Petitioner LSLC did not meet
statutory/administrative timelines and requirements
after the first DEQ denial:
1)
The
petitioner failed to file a State administrative
appeal of the first DEQ denial within 60 days.
The Motion demonstrates that the Sept. 3, 1999,
denial letter from the DEQ to Don Schwandt, then
LSLC president, includes a statement informing LSLC
of that deadline. A Jan. 10, 2000, request under the
Freedom of Information Act confirmed no appeal had
been filed, Bureau notes in the Motion.
2)
The petitioner failed to appeal the finding
of Coastal Zone Management inconsistency within 30
days. In order to
support his claim of the importance of this
deadline, Bureau
includes in the Motion document an excerpt from the
1972 Coastal Zone Management Act (PL92-583) Rules. The DEQ letter of Sept. 3, 1999, states
federal permits cannot be given because the project
is inconsistent with the Michigan Coastal Management
Program. Bureau concludes this situation made the
project unlawful under Part 301 of NREPA, Section
30106, because of activities that would
’Äúunlawfully impair or destroy any of the waters or
other natural resources of the state.’Äù He also
concludes the project cannot be approved under Part
303 of NREPA, Section 30311 (1) ’Äúunless the
department (DEQ) determines that the issuance of a
permit is in the public interest ’Ķ’Äù
3)
The petitioner failed to respond to a
Department request for further information within 30
days. Bureau’Äôs
Motion includes a reply from Schwandt to the DEQ
dated Sept. 9, 1999, in which LSLC acknowledged five
types of additional information requested by the DEQ:
a.
a revised wetland delineation map;
b.
a biological survey of the project site
documenting whether state-listed threatened,
endangered or special concern plants would be
impacted by the proposed development;
c.
an archaeological survey of the project site;
d.
a detailed plan to indicate how hydrology of
the stream and wetland would be minimized with road
construction methods (This plan was later questioned
by professors of civil engineering at the second
public hearing on May 1, 2000);
e.
a detailed wetland mitigation plan.
Bureau notes Schwandt
did not request additional time to produce the
required information and, further, a DEQ response to
his FOIA request confirmed at least 130 days elapsed
without any documents being submitted to the DEQ.
Said Bureau, whose FOIA
request included phone calls, ’ÄúThey (LSLC) never
even called to say it would take longer than 30 days
to provide the information.’Äù
4)
The project as proposed is unlawful under
Section 106 of the National Historic Preservation
Act of 1966, as amended. Bureau notes that the
Mendota Lighthouse is eligible for listing in the
National Register of Historic Places. He explains
that the State Historic Preservation Officer (SHPO),
in a Feb. 2, 2000, letter, specified that the
surrounding land may only be developed if a certain
set of conditions are met in order to protect the
lighthouse and historic outbuildings. SHPO required
that the United States Army Corps of Engineers agree
to these conditions and execute the SHPO enforcement
document before a permit could be granted. However,
Bureau adds, the Army Corps is legally barred from
entering into such an agreement.
’ÄúThus,
the Contested Case Hearing process is moot and the
conditions for approval from SHPO cannot be legally
met,’Äù Bureau says in the Motion.
Furthermore,
a 1983 Memorandum of Agreement between the State of
Michigan and the United States Environmental
Protection Agency (USEPA) requires the EPA be
notified about sites identified or proposed under
the national Historic Preservation Act. Bureau notes
consultation with the USEPA has not been conducted.
5)
The petitioner did not submit a
development plan for the property. Without this
plan, since both existing and potential
adverse environmental effects need to be determined,
the department cannot issue a permit, Bureau states.
Without a development plan, the DEQ is unable to
determine the following:
a.
That adverse effects to the environment and
the public trust are minimal and will be mitigated
as much as possible.
b.
That the resource affected is not a rare
resource. (The Nature Conservancy, or TNC, has
identified this wetland site as a globally rare
Great Lakes Marsh and as their number-one priority
Keweenaw area for preservation. Tina Hall, TNC
Upper Peninsula conservation director, has said the
conservancy would purchase the area to preserve its
sensitive ecosystem if it were for sale at fair
market value.)
c.
That the public interest in the proposed
development is greater than the public interest in
the unavoidable degradation of the resource.
d.
That no feasible and prudent alternative is
available.
’ÄúThe denial stands,’Äù Bureau
said this week in an explanation of the Motion for
Summary Disposition. ’ÄúThey (LSLC) did not protect
their rights. They did not exhaust their
administrative remedies. Case closed.’Äù
Bureau repeated what he had
stated at the May 1, 2000, public hearing in Mohawk,
’ÄúWe shouldn’Äôt even be here.’Äù
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AWAKE Trustee Janet Avery of Gratiot Lake
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Janet Avery, trustee of AWAKE
(Association Working Against Keweenaw Exploitation),
said she believes the 60-day filing deadline is the
most important of Bureau’Äôs points in the Motion.
’ÄúThey (LSLC) let it go,’Äù
Avery said. ’ÄúThe other thing that is important is
that we have not seen any plan for this housing
development, which is a stated outcome of the road.
That has always bothered us (AWAKE).’Äù
Besides AWAKE and The
Nature Conservancy,
organizations that have opposed the permit for a
potential road and development at Bete Grise South
also include the Lake
Superior Alliance, the National
Wildlife Federation and FOLK
(Friends of the Land of Keweenaw).
During the time period between
the two DEQ permit denials, Schwandt disappeared
from his position as president of LSLC.
A Jan. 12, 2000, article in The
Daily Mining Gazette said former Lake Superior
Land President Don Schwandt was no longer employed
in that position. At that time, LSLC was a
subsidiary of Champion International, which later
merged with International Paper, Inc. Champion
officials, the article noted, declined to say
whether Schwandt had been fired or resigned. The
article also cited Art
Abramson, then general manager of
Champion’Äôs Lake States Region forest resources (He
now holds that position for IP) as saying
development issues, such as the proposed development
at Bete Grise, were not a factor in the Schwandt
decision but were a company concern.
Bureau said neither the fact
that Schwandt no longer held his LSLC position nor
the merger of Champion with IP had any bearing on
the facts presented in his Motion.
Bureau spoke at both public
hearings on the Bete Grise issue, outlining how he
believed the proposed road and development are in
violation of both state and federal laws.
’ÄúWe intend to continue to
fight to protect that area to the best of our
ability,’Äù Bureau said this week.
Click
here for Keweenaw Today’Äôs
July 26, 2000, article, which gives more background
on the Bete Grise issue, including statements made
at that time by Tim Bureau and by Richard Gutleber,
Army Corps spokesman in Marquette.
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’Äì
Michele Anderson
June 16, 2001
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