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State Issues Permit For Peat Mining of Rare Wetland Ecosystem

U.S. Environmental Protection Agency takes up the case

June 1, 1997 | By Keith Schneider
Great Lakes Bulletin News Service

Since taking office more than six years ago, the Engler Administration has made some of the boldest strikes of any state government against the environment.

Now the Administration has struck again. In June, the Department of Environmental Quality approved a Texas company's permit to remove tons of peat moss from nearly 1,900 acres of the Minden Bog, a wetland system in Sanilac County.

The DEQ decision was a reversal of a 1995 Department of Natural Resources ruling, which had denied the company's application to expand beyond the 951 acres it already is mining in the Minden Bog.

The permit is the largest ever issued for wetland development in Michigan. It allows the Michigan Peat Company to destroy a vast, saturated plain of sphagnum moss and rare plants, the southernmost ecosystem of its kind, that has changed little since the Thumb region first was settled.

Michigan Peat had filed suit against the DNR, claiming that the regulatory action was an unconstitutional "seizure" of property, and asking for $300 million to $500 million in "just compensation."

Peat moss, which home gardeners and nurseries use for mulch and potting soil, has been mined in the Minden Bog since the 1950s. Much of the company's case rests on the fact that in 1958, Michigan Peat swapped a parcel of land on Lake Huron for 1,280 acres of the bog owned by the state. As part of the swap, the company was given express approval to mine peat moss. The company argues in its lawsuit that the terms of the agreement have the legal force of a treaty, and must be honored.

State attorneys with the Michigan Attorney General's office disagree. They were prepared to argue that when it comes to protecting the public trust, the American judicial system always has evolved to take changed circumstances into account.

Just such a change is the emerging scientific understanding of the value of wetlands in purifying water, providing habitat, and soaking up floods. The 1979 state Wetland Protection Law was designed to give government the technical information and legal tools to protect these valuable and irreplaceable resources.

State lawyers, however, did not have a chance to make their case. DEQ Director Russell Harding said in a press statement that he decided the state should not invest in a defense of the bog.

•Mr. Harding said he was "extremely concerned with the trend in property rights decisions," in the Nordhouse Dunes settlement, and in the $5.2 million K&K Construction "takings" case. That is, Mr. Harding believed that state judges would rule in Michigan Peat's favor.

•Mr. Harding also said he took advantage of an opportunity for the federal government to take the case off his hands. Since 1980, Michigan has shared responsibility for protecting wetlands with the Environmental Protection Agency and several other federal agencies. In instances where a dispute arises, the United States reserves the right to take over jurisdiction.

Minden Bog is just such a case. The EPA and the U.S. Fish and Wildlife Service have formally opposed the expanded development there. When Mr. Harding granted the mining permit, the result was to automatically transfer control of the case to the federal agencies. "We believe that the federal government's resources better position it to withstand the company's legal challenge," said Mr. Harding.

Critics of the DEQ decision disputed Mr. Harding's logic. "It's the wrong decision. It's the wrong policy. It sends the wrong message," said state Rep. Karen Willard, (D-Algonac). "It completely decimates any credibility that the Department has ever had in terms of environmental regulation and enforcement."

Take Action
•For more information about how you can help the Thumb Bio-Regional Alliance build statewide support for protecting the Minden Bog, contact: Fred Fuller, St. Clair County Drain Commissioner, 21 Airport Drive, St. Clair, MI 48079, Tel. 810-364-5369.

•Contact your state and U.S. representatives and ask them to support the enforcement of wetland protection laws in Michigan.
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