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Re: E-M:/ Re: / Judge OKs dune waste pipe



Title: Re: / Judge OKs dune waste pipe
Cynthia, Tanya, and Chris,
 
Thank you for the clarification. Sorry for my confusion, although, for us on the east side, it is very important to distinguish yourself from the SOS over here.
 
Having been through a few DEQ administrative hearings, the beginnings of a few failed MEPA suits, and studied the transcripts/files of several in-depth, it seems that the judicial system is usually incapable of protecting significant natural resources due to ignorance, bias, inconsistency, and the reality of nature which usually does not survive court-imposed timelines, not to mention the influence of politics and money. There is a tendency for judges to defer to anyone making the case for non-regulation, with little or no justification. The most egregious contested case I am familiar with resulted in an ALJ ruling over the heads of several DNR/DEQ staff through the misapplication of federal hydrology criteria to a State-regulated wetland, among other things. Also, in this wetland, the Purple Loosestrife was "stressed", according to 3 consultants, indicating that the hydrology was on its way out, and the ALJ bought it. If you ever get the chance, read the transcripts of the "Relleum" case in Fort Gratiot Township, St. Clair County. It's a classic. File 88-11-0352 (1996). This was a real eye-opener for me. Up until that decision, having been a wetland consultant for 7 years, I actually believed that if any wetland was State-regulated, it was protected. The elimination of this wetland led to the elimination of extensive regulated wetland across an adjacent site, with the help of the same consultant.
 
This from pages 54-55 of "RESULTS OF U.S. ENVIRONMENTAL PROTECTION AGENCY REGION 5 REVIEW OF MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY'S SECTION 404 PROGRAM, NOVEMBER 2002"
http://www.epa.gov/region5/water/wshednps/pdf/mi_404_program_review.pdf
"A case in which the absence of procedural rules defining the issue to be decided and burdens of
proof resulted in a particularly egregious decision is In re Relleum, Inc., No. 88-11-0352W (June
18, 1996). A contested case hearing was held during 1995 over MDEQ staff’s denial of a 1992
permit application. The applicant’s first permit application, submitted to MDEQ in 1988, also had
been denied. As part of its first application, the applicant had provided MDEQ an expert
wetlands delineation showing 19 acres of wetlands on the property; the presence of wetlands was
confirmed in 1991 by the applicant’s contractor. But during the contested case proceedings the
applicant denied that wetlands were present on the property: between the application date and the
hearing date, the applicant had performed extensive land-clearing activities on the property,
removing surface vegetation and as much as seven inches of soil. The Proposal for Decision,
adopted by the Final Decision without further explication, reveals confusion as to what legal
standards were to be applied to the evidentiary issues; and to the extent that it announces legal
standards, seems to fail to apply them to the facts of the case. The presiding officer began by
correctly placing on the applicant the burden of proving whether wetlands were present at the
property. He then stated that because the property had been disturbed the criteria of whether
wetlands vegetation was present should not be applied (rejecting evidence presented by MDEQ
that during site inspections wetlands vegetation was observed despite the severe disturbance);
instead the soil characteristics criteria should be examined. MDEQ presented evidence that the
soils at the property were wetland-type soils. The applicant presented no evidence on soil
characteristics, but instead presented results from three years of piezometer readings collected at
the property after the 1992 application had been filed and after the landclearing. In finding that
wetlands did not exist at the property, the presiding officer appears to have relied solely on this
hydrological evidence, even basing conclusions about the soil characteristics criteria on the
hydrological data, and appears to have wholly rejected MDEQ’s evidence. Moreover, after
finding that there was insufficient evidence to establish what the soil characteristics were in one
portion of the property the presiding officer, rather than ruling that the applicant had not borne its
burden of proof on this issue, found that the lack of evidence supported a decision to issue the
permit. Finally, without stating any authority for applying this standard, the presiding officer
determined that the issue at the contested case hearing should be not whether wetlands existed at
the time the permit application was filed, or at the time the application was denied by MDEQ, but
at the time the hearing was held. In doing so, the presiding officer rejected not only all of
MDEQ’s scientific and technical evidence showing that wetlands existed, but also disregarded the
applicant’s own earlier wetland delineations."
For anyone getting into a MEPA suit, it is nice that MEPA assigns any citizen of Michigan legal standing. That is a major obstacle in successfully petitioning for a contested case (administrative) hearing. But once begun, expect the other side to use the legal concepts of "laches", "res judicata", and "collateral estoppel" shamelessly, especially if you did not petition for a contested case hearing, or did not intervene. You may be OK on the west side of the state, but over here at least, I feel it is important to highlight the concept of "de novo" built into the MEPA. The judges over here think that just because someone has all their permits (even if they don't) that a MEPA suit is precluded, when, in fact, you should be given the opportunity to make the case for any level of protection that you can demonstrate is warranted by a significant natural resource. SWAT found that out in Chesterfield Township, Macomb County.
 
Bill Collins 
 
Huron Ecologic, LLC
3335 Crooks Road
Rochester Hills, Michigan 48309 USA
phone & fax: 248-852-4682
e-mail: huronecologic@netzero.net
 
Huron Ecologic provides wetland delineations, wetland permitting, wetland mitigation design & monitoring, tree inventories, botanical & ecological surveys, natural area protection, nature education, and technical training.
-----Original Message-----
From: Cynthia Price <skyprice@iserv.net>
To: Chris Grubb <chrisgrubb@watershedcouncil.org>; enviro-mich@great-lakes.net <enviro-mich@great-lakes.net>
Cc: huronecologic@netzero.net <huronecologic@netzero.net>
Date: Friday, February 27, 2004 5:23 PM
Subject: E-M:/ Re: / Judge OKs dune waste pipe

I'm sorry -- I should've sent out a general notice to Enviro-Mich with that information long ago.

The Muskegon Save Our Shoreline group has been in existence since 1974 and was originally formed to oppose a steel mill on the shores of Muskegon Lake, in which effort they were successful. (By the way, Muskegon Save Our Shoreline is the official legal name of the group, not simply Save Our Shoreline.) We were very distressed when the other Save Our Shoreline group started using a similar name, since it was apparent our goals were not at all similar. At that time I resolved to at least get that message out to Enviro-Mich, but lately have been waiting to make a general posting on the Nugent Sand situation. Now that the ALJ's decision is out, I should've done so right away, but Hamiltreef beat me to it!

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