|
Read the Supreme Court Opinion Read the Court of Appeals Decision April 2004 newsletter has answers to some FAQ Monitoring Violations at a Sand Dune Mine - Some helpful hints. Map showing location of mines in Covert & Hagar Townships Screen image Preview (37K) or Adobe Acrobat format (198k) Dunes Day. Front Page Article in The Paper March 16-22, 2000 issue. Legislative & Administrative Agenda A Story of Shifting Mining Boundaries or one way the MDEQ aids sand dune miners. Check out an Information Sheet prepared in 1980 by Hope for the Dunes. You will be surprised how little has changed. |
Benefit Held on July 19! Everyone there had a great time. Over a hundred attended the event at the Fenn Valley Winery. It was also an opportunity to sample a number of the vineyard's wines, get some fabulous bargains in the silent auctions, hear some folk songs, meet other members, see what other environmental organizations are doing, and have a tasty buffet meal. SOS Dunes News The newsletter is being distributed monthly via email. Publication of the paper version will be reduced to two or three times a year. So to keep up with what is happening along the lakefront dunes sign-up at the "Guestbook."
You can now make a donation to Preserve the Dunes online. Just select the "Fund Raising" button to make a donation on-line using your credit card or your Pay-Pal account. Preserve the Dunes is an IRS 501(c)3 organization. All gifts are tax deductible.
Previously, we notified you that the Van Buren County Board of Commissioners was considering selling North Point Park. Many of you responded with calls and emails to the commissioners. The board tabled the issue of selling the land. Three scenarios for use of the land were created by Friends of North Point and presented for public comment. They ranged from minimal change to significant expansion of facilities. Comments were received and presented to the commission. The majority of respondents preferred minimal change. The "Friends" proposed that the land be protected through a conservation easement and be open to the public in perpetuity. The commissioners have responded positively to the proposals. The full presentation is available on line. The details of conservation easements will be discussed when the board meets as a committee of the whole on March 25 at 4:30 PM on the second floor of the Administration building in Paw Paw. The commissioners may consider the plans for North Point at the regular meeting of the board immediately following at 5:30 PM. PTD Design Awards Featured The winning projects of the PTD Critical Dunes Residential Design Awards were pictured in the April issue of Shore Magazine. The article describes the pressure to develop versus that to protect the dunes. As the price of land increases, the pressure to increase development density and size of homes mounts. Realtors and home builders emphasize property rights. Environmentalist emphasize preservation of an irreplaceable natural resource. The text of the article is available on-line; photographs and descriptions of the winning projects are available at the PTD website. DEQ Reviews Critical Dune
Law Last fall, the DEQ assembled a group of over 30 "stakeholders" of the Sand Dune Protection and Management Act to take a fresh look at the law and how it has been enforced. When the law was first enacted in 1979, the legislature intended local units of government to adopt zoning regulations for dune development that implemented the provisions of the law. For townships, towns and cities that did not adopt such regulations, the DEQ would enforce the law. Only two towns amended their zoning ordinances to include approved provisions. The remainder were worried about being sued for "takings" of private property. There are five clear requirements of the law that apply to all development within the designated Critical Dune Areas (CDA).
Builders, realtors, property owners and architects have expressed a great deal of dissatisfaction with the law and the DEQ's enforcement, as described in the Shore Magazine article. Complaints include: It takes too long to get a permit. The requirements are not clear. The process is opaque and burdensome. The emphasis on slopes does not actually protect the dunes and limits site and building design unnecessarily. In a series of 5 or 6 plenary sessions and 5 or 6 meetings of a subgroup, a strategy for regulation emerged. It is a two step process. In the first step, the site is evaluated for its significance and level of necessary protection. Lots located in subdivision-like settings would have a lower score than those in exemplary dunes. Critically imperiled, imperiled and vulnerable settings would have higher scores. Once the lot is evaluated, the proposed development is scored. Actions that damage the dunes are given points and those that protect or mitigate damage are to be given negative points. The object is to get a low score, as in golf. This approach allows an owner to make tradeoffs. For example, one might want to clear a larger area in tradeoff for removing invasive species. Over the next six months the standards are to be calibrated through testing with data from a large number of completed projects, refined, and reviewed with legislators. Warren Dunes State Park Threatened A legal battle could determine whether Michigan will retain
control of Warren Woods State Park and part of Warren Dunes State
Park. Alternatives to Sand Dune Mining A recently completed study has taken a fresh look at alternatives to sand dune mining. It evaluates alternatives that will meet the specifications for automotive castings in a feasible and cost effective way. Some of the factors considered were:
The study was undertaken by Alliance for the Great Lakes, Ford Motor Company and Michigan State University through a grant funded by NOAA through the MDEQ, Coastal . For more information on this issue or to download a copy of the report. Development in the Dunes Gets TV Coverage Michigan has laws to regulate development and activity in our geologically unique shoreline dunes. The question for today is: are those laws working? WMMT Kalamzoo has an interesting article/video on the dangers that development is posing for West Michigan's Lake Michigan shoreline dunes. It was aired in two parts on November 13 and November 14.
Your support of Preserve the Dunes can help create a strong voice for protecting the dunes. Judge's Ruling is Appealed PTD's appeal to the Circuit Court of the DEQ's renewal of the Nadeau Site sand dune mining permit was denied by Berrien County Judge Paul Maloney. We have now made application for leave to appeal to the Michigan Court of Appeals. PTD is maintaining that TechniSand's permit should not have been renewed because the sand dune mining law requires that in responding to an application for a permit to renew or amend a permit, the DEQ first determine if the operator qualifies for a permit. TechniSand does not. The critical dune area was not included in the mine when TechniSand bought the mine in 1991. In order to qualify for the permit, the company would have had to have owned the adjacent critical dune area prior to 1989. But the company did not even exist until 1991. Judge Maloney failed to address this issue in his decision. Our brief to him had been filed in March. Covert Township Adopts New Zoning Ordinance The Covert Township Board at its October meeting adopted the new zoning ordinance as submitted except for adding the Nadeau Pit sand dune mining site back into the Environmentally Sensitive Overlay District. While many of our concerns had been addressed in earlier versions, most of the regulations that weakened the protections of the environmentally sensitive areas were not revised. These are documented in our comments presented to the township board. In addition, there are some conflicting regulations and obtuse regulations still remaining. The simple story is that the Planning Commission and the Township Board purposefully reduced protections and allowed denser development along the lake front. The puzzle is why? There is no constituency among township citizens and property owners that requested or will benefit from the watering down of requirements that have been on the books since 1989. The beneficiaries of the changes are future developers and the land owners whose property was made more developable with greater densities when it was removed from the environmentally sensitive areas -- the largest landowner being TechniSand, the mining company that has removed tens of millions of dollars of sand from the township and paid property taxes as if the land were vacant farmland. Covert Township Board to Meet The Covert Township Board will meet on Tuesday, October 10, 2006 at 7:00 PM in the township hall to consider adoption of the new proposed zoning ordinance and map. The current version is much improved from earlier drafts but still provides weakened protection for the dunes, wetlands and other fragile environments in the township. PTD has provided comments for consideration of the board at its meeting. Our attorney, Catherine Kaufman, who has assisted in the review of the multiple versions will attend and speak for PTD. Others are encouraged to attend and speak if you desire. This is probably our last chance to comment. PTD provides comments to Van Buren Planning Comm. PTD presented its concerns at the meeting of the Van Buren County Planning Commission on Wednesday, September 27 in a letter and verbally. The comments were well received and are likely to be incorporated into the planning commissions comments and suggestions that will be sent to the township board for its consideration. PTD provides new comments on Zoning Changes The Covert Planning Commission will review the new zoning ordinance at its next meeting at 6:00 PM on Wednesday, July 19 at the Covert Township Hall. After the hearing on May 24 the Planning Commission directed its consultant, Chuck Eckenstahler, to make a number of revisions that reduced many of the threats to the dunes and to the character of the lake front. PTD was furnished with a copy of the new revision. Our attorney and we have reviewed it. Comments are been prepared and a draft copy has been sent to planning commission representatives (a final version will be printed and delivered early next week). If you wish to comment, fax your letter to the Planning Commission at 269( 764-1771) or mail them to Covert Township Planning Commission, P.O. Box 35, Cover, MI 49043. PTD Appeal To Be Heard in Berrien County Court RESCHEDULED The hearing of the appeal of the DEQ's issuance of a renewal to TechniSand for its sand dune mine at the Nadeau Pit in Hagar Township has been scheduled for 1:30 PM August 16, 2006, in the court of Judge Paul Maloney in the Berrien County Courthouse. The DEQ issued a renewal for the sand mining permit at Nadeau Site on January 19, 2006. The decision was rendered by Harold Fitch, Office of Geological Survey. The appeal is based on the fact that the permit which TechniSand sought to renew was unlawfully issued. The permit allowed mining of a Critical Dune Area (CDA) despite the fact that TechniSand did not qualify for either of two exceptions to the ban on mining in CDAs that was added to the Sand Dune Mining Act (SDMA) in 1989. PTD's brief on appeal was submitted on March 27. Critical Dunes Residential Design Awards Announced Preserve the Dunes (PTD) has announced four winning projects in its 2006 Critical Dunes Residential Design Awards Program. Projects were selected based on excellence in design, and the degree to which they take advantage of the dune setting while minimizing impairment of the dunes. Any residential project located in a Critical Dune Area of Michigan, built after 1989 when the Sand Dune Protection and Management Act was passed, and designed by a registered architect was eligible. Entries were received for projects located from as far south as Michiana to as far north as Frankfort. Architects from Michigan, Indiana, Illinois, and North Carolina submitted entries. "The quality of the projects submitted was excellent. The jury had a difficult time choosing those to receive the awards." Charles Davis, President of Preserve the Dunes, said. Preserve the Dunes is preparing to publish a guide to building in the sand dune areas of Michigan. Many of the entries will be used in illustrating principles and strategies for construction in the dunes. Awards were made to the following projects and architects:·
Additional information, jury comments, photographs of these projects and contact information are available at http://sosdunes.daac.com/PTDdesignawards.pdf. The next critical dunes residential design awards program is planned for 2008. Planning Commission Holds Hearing; Postpones Action The Covert Planning Commission held the public hearing as scheduled on May 24. Approximately, 20 citizens attended and about half of those present spoke in opposition to a number of provisions. The commission recognized that there was strong opposition even before the meeting began and announced that no action would be taken at that time, but that comments would be received, necessary revisions would be made and the revised code would be reviewed at the July 19 meeting of the Planning Commission. PTD conveys concerns to Covert Planning Commission Covert Township Planning Commission has been working for months on revisions to the zoning ordinance. The draft was completed and distributed at the end of April. The revisions are extensive. One of the purposes has been to coordinate the ordinance with state law. The Planning Commission member have stated that they wish to keep the coastal area as low density housing similar to its current use. However, PTD is concerned that the intent of the revisions and the actual provisions are different; and has filed its concerns with the Planning Commission. Read the Transmittal letter, Comments, and Appendix . The hearing is scheduled for 7:00 PM, May 24 at the Covert Township Hall. If you wish to comment, fax your letter to the Planning Commission at 269( 764-1771) or mail them to Covert Township Planning Commission, P.O. Box 35, Cover, MI 49043. PTD opposes renewal of mining permit at Nadeau Site Honigman, Miller Schwartz and Cohn LLP, attorneys based in Detroit representing PTD wrote to the DEQ opposing the renewal of the permit. In that letter, they presented a legal argument against renewal. TechniSand was given an opportunity to comment on the letter and their attorney submitted a letter in response that mischaracterized the Michigan supreme court's ruling in the MEPA case and made a faulty res judicata argument. Honigman's response pointed out those errors. Despite the cogent arguments put forth, the DEQ issued the permit on January 18, 2006. A complaint contesting issuance of the permit is being prepared by PTD's attorneys. It must be filed with the court within 21 days of the permit being issued. PTD Completes Rogers Creek Analysis PTD has completed its analysis of the flow in Rogers Creek. For years we have been stating that the base flow in the creek has been reduced. The base flow is the flow which is dependent on groundwater discharge into a stream, i.e. excluding run-off from rain and snow melt. Measurements indicated that the flow in the creek at the Blue Star Highway is 0.28 cubic feet per second. This is about one-half of the DEQ's estimates made in 1998. About 75% of the base flow is from groundwater discharge along the edge of the Nadeau Pit sand dune mine operated by TechniSand under permit from the DEQ. The study concludes that the primary cause of the reduced flow is the removal of the dunes in the adjacent strip mine. The drop in the water table reduced the groundwater storage significantly. The water that is no longer available could have maintained the base flow for up to three years. The report (7.5Mb) in Adobe Acrobat format is available for download. Critical Dune Residential Design Awards PTD has announced an awards program for residential projects set in the critical dune areas of Michigan. The awards will recognize architectural design excellence in residential projects in the dunes of western Michigan that is responsive to the project's setting and that protects the dunes. It will also identify design strategies and construction techniques that protect the dunes and dune ecology. The awards will be publicized in regional and local media, as well as the architectural press. Registration has closed. Submissions must be mailed by April 14. The awards will be announced no later than June 15. The original announcement (7.1Mb) is available on-line. Michigan Supreme Court issues ruling on beach walking At the end of its session the Supreme Court ruled that the public had the right to walk on the beaches of the Great Lakes even though the land was privately owned. The ruling and its effects are discussed in the current newsletter. Or check out the actual ruling. DEQ to Raise Permit Application Fees The DEQ has announced plans to raise fees for permit applications in critical dune areas. This has become necessary due to the shortfall in tax revenues in Michigan. For complete coverage and a list of the proposed new rates see the newsletter from last Spring. Dredging at Nadeau Pit As reported in detail in the last SOS Dunes News, the DEQ issued a permit to dredge the lake at Nadeau Pit. Subsequently, PTD and the Thunder Mountain Heights Association (TMHA) appealed the ruling under the Administrative Procedures Act. They maintained that Rogers Creek had been impaired by prior operations at the pit. In the appeal, PTD and TMHA requested that TechniSand be required to accurately monitor flow, temperature and oxygen content in the creek during the permit period - and that they be required to stop dredging if the creek was significantly affected. At the suggestion of the DEQ, we entered into negotiations with TechniSand. We made a verbal proposal to TechniSand to which they agreed in principle. The proposed agreement was put into writing and sent to them on November 13. About a month later, on December 10, they rejected the proposed agreement and without explanation declined to participate in further negotiations. This is yet another example of TechniSand's unwillingness to voluntarily take any measures that can protect the environment and to be a good corporate citizen. PTD then began conversations with the DEQ. As a result, the Department has agreed to measure the water flow several times this summer to determine the "base flow" (or minimum flow rate) in the creek. Once this is known, there will be a base line against which it can be determined if the creek is being further impaired. In subsequent years, PTD and TMHA will make measurements in the creek to identify any impairment of the creek. Court of Appeals Rules on Remand As reported in the last newsletter, the Michigan Supreme Court overruled the Michigan Court of Appeals and then remanded our suit back to that court. In that 4 to 3 contentious ruling, the Supreme Court maintained that the Michigan Environmental Protection Act (MEPA) could not be the basis for rescinding a permit, even if it had been unlawfully issued. With the heart of its argument cut out, PTD had little hope that the court of appeals would do other than allow the trial court's ruling to stand. TechniSand is now removing the critical dunes at the Nadeau Site in Hagar Shore - and all because the DEQ unlawfully issued a permit in 1996, and four of seven elected Supreme Court judges were more concerned with business interests than environmental ones. We will continue our efforts to stop destruction of the dunes
by sand mining; to ensure that any mining that is permitted complies
with the law and the permit; and to make sure that mine sites
are adequately reclaimed.
The photograph above shows the Nadeau Site expansion in the foreground, the Nadeau Pit in the center of the photo (across I-196) and Lake Michigan at the top left. The bare sand beyond the Nadeau Pit is the south face of Thunder Mountain, the highest point in southwest Michigan. It was mined in the 1930's and 1940's and left unreclaimed. The court's ruling stopped mining of the critical dune area in the Nadeau Site expansion. Mining continues at the Nadeau Pit and in the non-critical dune area at the Nadeau Site (see below).
Nadeau Site, Covert, August 29, 2004. The area below the orange snow fence is outside the critical dune area (CDA). It has been mined since the injunction was issued last September that stopped mining of the CDA. TechniSand has constantly argued that they were running out of sand. Since the trial in May 2002, they have predicted that they only had one year of sand remaining. Two years later they say they have a year of sand remaining. In trial they argued that the sand at the Nadeau Site that lies outside the CDA is worthless unless they can mine the CDA. Yet they are mining it.
About us Preserve the Dunes is a grass roots not-for-profit organization whose members have an interest in preserving the sand dunes of Southwest Michigan that are being destroyed by sand mining and are threatened by over development and incompatible use. Register your support at the guest book At this web site we have posted:
|
