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:
APPLICATION FOR MARINA PERMIT – MiWATERS #HPC-JEM9-EXPBJ, HUTCHINS LAKE: This application involves the request to install a new marina that includes permanent and seasonal docks/piers with finger docks/piers, and wetland fill within Hutchins Lake, Clyde Township, Allegan County. The marina is intended for use by multiple families/land owners. It is not a commercial marina in the traditional sense. EGLE does not require permits for seasonal docks/piers placed by riparians on their bottomland, and used only by the close immediate family of the riparian. However, once non-family members use a common dock/pier, then a permit is required by the Michigan Natural Resource and Environmental Act (NREPA). (NOTE: Previous info on this permit application was reported in our newsletters and can be found at mymlsa.org/news)
On July 11, 2022, the Water Resources Division of EGLE, issued a four page letter DENYING the application for permit. Portions of the letter listed the following as some of the reasons supporting the denial:
“ … After due consideration of the permit application, site conditions, and other pertinent materials, your application is denied for the following reason(s): a. The proposed project will have significant adverse effects on the natural resources and Public Trust (emphasis added) associated with Hutchins Lake and adjacent wetland. b. Feasible and prudent alternatives are available to accomplish the basic project purpose with reduced impacts. Section 30106 of Part 301 prescribes that:
- EGLE shall not issue a permit if it finds that the structure or project will adversely affect the public trust or riparian rights.
- EGLE must consider the possible effects of the action upon Hutchins Lake, and the uses of its waters including for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce, and industry.
- EGLE shall not grant a permit if the structure or project will unlawfully impair or destroy any of the water or natural resources of the state…”
The Hutchins Lake Association, and many concerned riparians, used the public notice period, the public hearing, and evidence submitted for the record to help stop this permit application. They used scientific evidence, professional reports, and reasonable questions to prevail in this matter. EGLE taking notice of Public Trust concerns is also noteworthy.
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 analysis and background, please refer to Parts 1- 3 of this series in the NEWS section of our website: mymlsa.org/news/
The Petitioners, Respondent (EGLE) and Interveners have submitted Post-Hearing briefs. In an interesting twist in the case, the Petitioners have included a challenge on the grounds that EGLE had to first make a new “Rule” before the 2020 CAFO permit conditions could be issued. Petitioners also went into detail alleging how EGLE did not follow its own rules. The matter is complex and a Proposal For Decision (PFD) by the Administrative Law Judge will probably be issued sometime before the end of calendar year 2022.
NEW BOATING ACCESS SITE (BAS) – MOAHR Docket # 16-015208: This case involves an application by the Michigan DNR to fill just under a ½ 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 matter was contested in the MOAHR forum for Contested Permits. 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 when the full hearing process was concluded. For analysis and background, please refer to previous articles about this permit in the News section of our website: mymlsa.org/news/