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DEQ’s Weak Resolve to Follow Law Invites Court Challenges

Weak enforcement hinders environmental safeguards

February 28, 2000 | By Keith Schneider
Great Lakes Bulletin News Service

In 1991, when he marched into the governor’s office, John Engler’s view of environmental regulations was crystal clear. They were, he asserted, largely an intrusion into how businesses operate. The governor then appointed people to run the state’s environmental agencies who were more comfortable promoting economic activity than in actually conducting inspections, issuing fines, and aggressively enforcing the law.

Nine years later, the Administration’s hands-off approach has become not only a state and national issue, it is being tested in legal challenges brought by citizens, local governments, and even the federal government. Frustrated that the state Department of Environmental Quality likes to look the other way, the agency increasingly finds itself in court facing incensed groups that feel compelled to take environmental enforcement into their own hands.

The latest in the series of high profile court tests, this one involving wetlands, is being heard by Macomb County Circuit Court Judge Mary A. Chrzanowski. Other cases are pending in Detroit and Berrien County. The Macomb case, brought in 1998 by Mark Richardson, the county’s special environmental prosecutor, involves a developer’s decision the previous year to ignore a state inspector’s directive and fill an eight-acre wetland in Sterling Heights to build new homes without a state permit.

The 1979 Wetland Protection Act requires developers to acquire a permit from the state if they propose to fill or drain any wetland that is larger than 5 acres. The law specifically recognizes that wetlands are cost-effective natural resources that purify runoff, provide storage capacity that prevents floods, and give wildlife a place to live. No region of the state is suffering more from the loss of its wetlands to development – resulting in frequent flooding, contaminated coastal waters, declining habitat -- than Macomb County and southeast Michigan.

What makes the case especially interesting is the role of Chad McIntosh, the former Deputy Director of the state Department of Environmental Quality, which is charged with enforcing state environmental statutes. Mr. Richardson asserts that after the developer ignored the directive, Mr. McIntosh gave him an out by touring the site and then overruling his district inspectors. Mr. McIntosh issued his own finding in October, 1997, that said what the developer did was perfectly appropriate because it was exempt from the state wetland protection law.

Before leaving the DEQ last year to take a job at Ford Motor Company, McIntosh said his actions were proper and lawful. But Mr. Richardson is among a number of Macomb County officials who are wondering why the second in command at the state environmental agency inserted himself into a wetland permit dispute to approve activities they argue were plainly illegal.

The Sterling Heights case is not an isolated incident. Since taking power, the Engler Administration has systematically downgraded enforcement as a priority. Instead the senior staff of Michigan’s environmental agencies now regard themselves as partners to business. State regulators focus on educating polluters and coaxing them to accept voluntary guidelines that have no teeth. And rather than denying a permit for activities that harm the environment, they regularly find loopholes and compromises that allow development.

It’s unclear if Michigan’s anti-regulation reputation has played any role in attracting new jobs, which is one of the Administration’s justifications. But when it comes to the quality of the state’s natural resources, the evidence is mounting that conditions have deteriorated. Hundreds of thousands of acres of public forest land in northern Michigan have been fragmented by natural gas development. Fecal contamination is becoming more widespread in coastal waters. Erosion is increasing as bulldozers chew up thousands of acres of farms, wetland, and open spaces for sprawling development.

The Administration’s resolve to enforce the law, while never strong, grew noticeably weaker starting in October, 1995 when the governor split the Department of Natural Resources and established the Department of Environmental Quality. All of a sudden, activities that previously were held to be illegal by the DNR were judged to be lawful by the DEQ.

Late last year, for example, the DEQ approved an application by a couple from Antrim County, near Traverse City, to fill a wetland to build a home, garage, deck, and driveway, activities that had previously been denied by the DNR. Antrim County officials protested the decision to issue the permit, calling it unlawful, and the county is considering legal action against the DEQ.

In 1997, DEQ director Russ Harding issued a permit to a Texas company to mine nearly1,900 acres of the Minden Bog, a wetland in Sanilac County, to produce peat moss. Only two years previously, the DNR had reviewed the same application and denied the permit after judging that the mining would wreck a rare ecosystem and would violate the state wetland law. The U.S. Environmental Protection Agency, citing its authority under federal law, has since intervened in the case, which is being heard in federal district court in Detroit.

And in 1996, the DEQ issued a mining permit to a Michigan company to take thousands of tons of sand from critical coastal dunes in Berrien County. It is illegal to harm a critical dune under the 1976 state Sand Dune Protection Act. The DNR declined to issue the permit for that very reason in April, 1995, before the agency was split. But in April 1996, the newly formed DEQ advised executives that "changes in government" had occurred and invited the company to resubmit its permit application, which was approved 7 months later. A 450-member citizens group, Preserve the Dunes, filed suit in 1998 against the company and the DEQ to stop the mining. A trial is scheduled next month in Berrien County Circuit Court.

In these and several more cases, citizens and local officials have stepped in to challenge the DEQ and stop unlawful activities. That’s quite a statement about how Michigan is managing the environment. The very agency charged with enforcing state environmental statutes is arguably one of the worst violators.

A version of this article was published by the Detroit Free Press on February 25, 2000.

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