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E-M:/ MDEQ Beach filling on Great Lakes general permit



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Enviro-Mich message from "Scott McEwen" <scott@watershedcouncil.org>
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The following Army Corps of Engineers write-up is in response to
requests by riparians to allow mowing, disking, and filling in Great Lakes
bottomlands.  According to the July 22, 2002 press release from
MDEQ, the Land and Water Management Division has issued a "general permit"
to
allow filled beach pathways on Great Lakes.  The following Corps
article explains why such bottomland manipulation is problematic
and destructive in the Saginaw Bay, and by extension, most of
the Great Lakes nearshore areas.

Scott McEwen
Tip of the Mitt Watershed Council

THE CORPS OF ENGINEERS JURISDICTION
OVER THE CONTROL OF EMERGENT VEGETATION
ON THE SHORELINE OF SAGINAW BAY

We know from geological evidence and more recent record keeping that the
water levels of Saginaw Bay fluctuate widely and continually. The wetland
plant communities of Saginaw Bay evolved under these conditions of
constantly changing water levels. Saginaw Bay's persistent emergent wetland
vegetation displays a cyclical pattern of growth that reflects changing
water levels. Plants such as bulrushes and cattails are classified as
emergent wetland vegetation because their stems, leaves, and flowering parts
“emerge” from the water. Emergent wetland vegetation grows most robustly in
shallow water conditions. Prolonged high-water conditions will eventually
wither the stems of emergent wetland vegetation and reduce the plants to
living mats of roots and tubers in the sediments. The next cycle of low
water exposes the roots, rhizomes, and seeds to the air, prompting the
regermination of the vegetation's stems and leaves.
For the past 30 years or so, the Great Lakes have been at very high levels.
The high water continually inundated near-shore portions of Saginaw Bay and
gradually thinned out the above-water portions of vast beds of bulrushes and
cattails in the 1970s. The roots, rhizomes, and seeds of these emergent
wetland plants could not germinate under conditions of constant inundation
and, as such, much of Saginaw Bay's emergent marsh habitat resembled open
water areas by the mid-1980's.
Since 1998, the water levels of the Great Lakes dropped significantly. The
current low-water conditions are responsible for changing formerly
open-water areas along Saginaw Bay's shoreline into a mosaic of exposed sand
and mud flats and shallow water areas. The plants that were unable to
germinate during the many years of inundation are rapidly sprouting and
growing in these flats and shallow water areas. Low-water conditions have
allowed for the reemergence of vegetated marshes along much of Saginaw Bay's
shoreline.
The wetland vegetation in the near-shore portions of Saginaw Bay is valuable
to the public in its emergent or growth stage and in its dormant stage. The
emergent wetlands provide foraging, nesting, resting, and hiding habitat for
multitudes of wildlife and fish species. The vegetation's masses of roots
and rhizomes anchor the Bay's sediments, which is of particular importance
during high water periods. The stems and stalks of the vegetation disperse
wave energy, protecting the shoreline from erosion during storms. The
vegetation also filters nutrients, suspended materials, and other
pollutants, which would otherwise be free to degrade Saginaw Bay. In broad
terms, the emergent wetland vegetation growing on the near-shore portions of
Saginaw Bay is (1) creating recreational opportunities for the public (e.g.,
hunting, fishing, bird watching) and (2) conserving public monies spent on
shoreline protection, water treatment, and fish stocking.
The value of the emergent wetland vegetation the Saginaw Bay shoreline is
also a matter of perception. Many shoreline property owners on Saginaw Bay
desire a sandy beach or an otherwise open shoreline and value an
unobstructed view of the water. Patches of emergent vegetation in near-shore
areas can obstruct views of and access to the water. Many shoreline
residents do not appreciate viewing or walking through patches of mucky
sediments trapped by vegetation and/or exposed by receding water levels.
Low-water conditions have left countless pockets of shallow water along the
shoreline—although desirable from an ecological standpoint, the insects that
hatch in these waters are perceived as a nuisance by many shoreline
residents.
Some Saginaw Bay shoreline residents, apparently viewing the growth of
emergent vegetation along the shore of Saginaw Bay as an intolerable
situation, have taken a variety of measures to control the vegetation's
growth. The control methods we have documented are mowing, discing, grading,
plowing, and raking of the vegetation. These control methods weaken or kill
the vegetation. The resultant increase in shoreline and sediment erosion,
decrease in water quality, and decrease in fish and wildlife habitat will be
most apparent when high-water conditions return to Saginaw Bay. From what we
know at this time, these control measures have caused or will cause serious
long-term problems from both a public values viewpoint and a lakefront
resident perspective concerning shoreline stability.
Most, if not all, of these control efforts have occurred on Lake Huron
bottomlands and fall under the regulatory jurisdiction of the Corps of
Engineers. The Corps of Engineers has been given authority to regulate
certain activities under two Federal laws, Section 10
<http://www.lre.usace.army.mil/functions/rf/html/section10.html> of the 1899
Rivers and Harbors Act (Section 10), and Section 404
<http://www.lre.usace.army.mil/functions/rf/html/section404.html> of the
1977 Clean Water Act (Section 404).
Under Section 10, a Corps permit is required for any structures or work
over, in, or affecting navigable waters of the United States waterward of a
line on the shore known as the Ordinary High Water Mark (OHWM). Some typical
examples of structures or work requiring Section 10 permits within this
jurisdictional area include beach nourishment, boat ramps, breakwaters,
bulkheads, dredging, filling or discharging material such as sand, gravel or
stones, groins and jetties, mooring buoys, piers (seasonal or permanent),
placement of riprap for wave protection or streambank stabilization, boat
hoists, pilings and construction of marina facilities.
Section 404 requires a Corps permit for the discharge of dredged or fill
material into waters of the United States including adjacent wetlands. The
area of Corps jurisdiction under Section 404 extends to the OHWM, and
landward of this to the upland boundary of any wetlands adjacent to
navigable waters. Projects involving discharges typically include placement
of fill material for homes and landscaping, impoundments, causeways, road
fills, dams and dikes, riprap, groins, breakwaters, revetments, and beach
nourishment. Section 404 also regulates discharges of dredged material
incidental to certain activities such as grading, mechanized landclearing,
ditching or other excavation activity. Certain pile-supported structures
also constitute discharges of fill material.
Saginaw Bay is part of Lake Huron, which is a navigable water of the United
States. The OHWM of Lake Huron extends to the existing 581.5 foot contour
line using the 1985 International Great Lakes Datum elevation reference or
to approximately 582.3 feet using the 1929 United States Geological Survey
elevation reference. The OHWM is a fixed contour and is used to define the
shoreward limit of the Corps' regulatory jurisdiction. Although Saginaw
Bay's water levels and shorelines constantly fluctuate, the Corps
jurisdiction over activities in Saginaw Bay is fixed to the unchanging OHWM.
The Corps' Section 10 and/or 404 jurisdiction is also independent of
property lines. The Corps jurisdiction extends to the landward extent of the
OHWM even if property lines are platted to the “water's edge” or a meander
line. A substantive body of Federal case law has affirmed the Corps' Section
10 and Section 404 jurisdiction in navigable waters.
Vegetation control methods that involve the action of moving soil over soil
on Saginaw Bay bottomlands--such as plowing, discing, grading, raking,
and/or dragging--constitute discharges of dredged material under the Corps'
Section 404 jurisdiction and as work under Section 10 jurisdiction. A Corps
permit is required for any activity involving discharges of dredged material
as described above. Mowing vegetation does not require a Corps permit as
long as the mowing does not physically disturb the bottomland substrate or
soils. A Corps permit for mowing vegetation is required under Section 10 in
situations where a tractor, pulling a mower or brush-hog, creates deep ruts
in the bottomland substrate.
We suggest that anyone wishing to perform vegetative control work along the
shoreline of Saginaw Bay contact our Saginaw Field Office or District Office
in Detroit well in advance of conducting the work to find out: (1) if the
work is waterward of the OHWM of Lake Huron and under Corps jurisdiction and
(2) if the work requires prior Corps authorization. We are willing to meet
on site to discuss matters of jurisdiction and application/permit
requirements. The Corps has no application or pre-application meeting fees;
does not charge a fee for minor permits; and only charges ten dollars for
standard permit issuance. The telephone numbers for our Saginaw and District
Offices are, respectively, (989) 894-4951 and (313) 226-6812.
The Corps of Engineers' permit program
<http://www.lre.usace.army.mil/functions/rf/html/RPP-bro.html>is mandated to
balance the needs and/or desires of shoreline property owners against the
interests of the general public. We have several minor-project permits in
place that can allow property owners to access the water or to clean up the
shoreline in ways that only minimally disturb Saginaw Bay's shoreline
marshes. Vegetation control work that will have more than minimal individual
or cumulative adverse effects on Saginaw Bay's environment or is otherwise
contrary to the public interest is not eligible for our minor-project
permits.
Projects having a more than minimal adverse impact on the public interest
must be evaluated under our standard permit process. We have to send out a
public notice on projects requiring a standard permit. Responses we receive
from the public and from other agencies (e.g., U.S. Fish and Wildlife
Service and Environmental Protection Agency) are incorporated into an
environmental assessment (EA) we must perform on the project. The EA is our
basis for determining if a project is contrary to the public interest. We
cannot issue permits for projects deemed contrary to the overall public
interest.



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