By Paul J Sniadecki, MLSA Board Director
This article continues our focus on EGLE permits that riparians might find of interest. We will occasionally provide info about permits issued, or denied. We are also providing updates about contested permits challenged by various groups in the contested permit process through the Michigan Office of Administrative Hearings and Rules (MOAHR).
The permits/cases of interest in this article are:
CAFO – MOAHR Docket # 20-009773
This appeal involves the new CAFO (Concentrated Animal Feeding Operation) permit requirements issued by EGLE on April 1, 2020. For background, please refer to Part 3 of this series in the NEWS section of our website: https://mymlsa.org/news/
Significant testimony in this case did occur during two weeks in December 2021. Administrative Law Judge (ALJ) D. Pulter has been assigned to hear and decide the appeal. Additional hearing dates have been scheduled for testimony and will occur on February 7-9, 2022. Most of the witnesses will be from the intervening parties. The hearings are open to the public and will be conducted using the MS Teams application. If you wish to watch the proceedings, please reply to this email and links will be provided.
MINOR PERMIT CRITERIA OF INTEREST – EXISTING SEAWALLS
Part 301, Part 303, and Part 325 of the NREPA authorize the Department of Environment, Great Lakes, and Energy (EGLE), Water Resources Division (WRD), to define types of regulated activities that would be expected to have only minor impacts and that can, therefore, be reviewed through an expedited permit application process. The WRD controls the Minor Projects (MP) permit process, and in 2021 the WRD issued an updated document containing the fifty-four categories for minor permit applications.
Of interest for riparians with seawalls is category 42, it has some interesting criteria for the repair and/or replacement of existing seawalls. The category requires the use of a Best Management Practice (BMP). The category describes possible BMPs as follows:
“For inland lakes, the applicant must include one of the following best management practice measures to mitigate for the loss of habitat and to provide a use for fish and other aquatic life:
- Reduce the length of the seawall by 25% and use either riprap following MP rirprap shoreline protection or bioengineering following in MP bioengineering practices for stabilization of inland lake shorelines.
- Incorporate coarse woody structure as approved by EGLE.
- Maintain a minimum of a 6-foot wide no-mow zone or native planted buffer strip above the wall extending the entire length of the proposed seawall. Minimal breaks in the buffer strip are acceptable for exercising riparian rights. For example, acceptable breaks in the buffer would include having a break around a dock or a small access point for a swimming area.
- Other measures approved by EGLE staff”
These provisions are in alignment with our MLSA goals to support the preservation and expansion of natural shoreline features needed for healthy lakes now, and for future generations. There was a webinar put on by EGLE staff that provided information about these changes in January, if you missed that presentation we will provide a link to the video recording as soon as it is available. There will also be an article in the spring 2022 issue of The Michigan Riparian magazine about these changes.
NEW BOATING ACCESS SITE (BAS) – MOAHR Docket # 16-015208
This case involves an application by the Michigan DNR to fill just under half an acre of Eagle Lake and construct a totally new BAS without any DNR provided disinfection/decontamination station for the control of aquatic invasive species (AIS). The lake has four different AIS species present, and can be viewed as a “predator” lake if exiting watercraft are not properly disinfected/decontaminated. With four AIS already flourishing, the lake can also be viewed as an “incubator” lake if any of the Michigan Watch List AIS Species enter the lake via contaminated watercraft. The matter went to a three and a half day hearing in January 2021. ALJ D. Pulter issued a Proposal For Decision (PFD) affirming EGLE’s issuance of the permit with no AIS protections. The appellants filed exceptions as allowed under the Michigan NREPA. As this newsletter goes to press, the final decision by the EGLE Director has not yet been issued and has been pending the final agency decision since October 21, 2021.