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Good Laws Undermined

Great Lakes protection statutes not enforced by Engler administration

August 1, 2000 | By Keith Schneider
Great Lakes Bulletin News Service

In the 1970s, then-Gov. William G. Milliken and the Legislature took action to safeguard Michigan’s Great Lakes coast from unbridled development by approving a series of landmark environmental laws. These statutes, which the Engler Administration weakly enforces and in some cases directly ignores, include:

Shoreline Protection and Management Act (1970)
This law establishes setbacks on the coast defined as “high risk erosion areas”; provides for protections in flood plains; and allows for special protections in “environmental areas,” defined as necessary for shoreline dependent wildlife.
Landowners generally have cooperated with mandatory setbacks in high risk erosion areas, understanding the real threat of high water damage.
In contrast, protecting coastline habitat has been a struggle. Although the state designated more than 275 miles of “environmental areas” in the early years, resolve flagged in the 1980s. Lawmakers, property owners, and state agency chiefs rebelled against restrictions, and the state hasn’t designated any new environmental areas since 1985.
Townships also seem to have forgotten about their part in enforcing the law. Many unwittingly grant construction permits for environmental areas, or fail to notify the state when property changes hands.
Says David Kenaga, the sole DEQ employee overseeing the law, “You do your best to press on, but it’s a struggle — especially when enforcement isn’t very well carried out even when a violation is discovered. It was a lot better ten or fifteen years ago when we had people interested in the environment and not politics.”

Soil Erosion and Sedimentation Control Act (1972)
Generally enforced by county soil conservation district agents, this law was designed to prevent damage from construction. To obtain a permit, a landowner must limit the exposed area of disturbed land for the shortest possible time.
Like many environmental laws, this one contains fines too small to deter irresponsible developers. For example, the developer of Arcadia Bluffs Golf Course caused tons of soil and sediment to flow into Lake Michigan after clear-cutting acres of trees. The incident prompted Sen. Ken Sikkema (R-Grandville) to introduce a bill to strengthen the law — it has passed the Senate and awaits House action this fall.

Sand Dune Protection and Management Act (1976)
This law, initially passed to regulate sand dune mining, was amended in 1989 to protect 70,000 acres of “critical” dunes along the shoreline. The law limited how much vegetation could be removed during construction and banned building on slopes of 25% or greater, unless a property owner proved there was no other alternative. It also prohibited new companies from starting sand dune mining operations.
In 1994 the Legislature weakened the law by allowing construction on slopes up to 33% or greater, and provided for wider latitude for enforcement exceptions.
Four years later, legislators rejected a Michigan State University study that called for increasing the critical dunes to 82,000 acres. DEQ Director Russell Harding delivered the fatal blow in a letter to legislators opposing designation, fearing it would increase personnel costs and takings claims. Conservationists, citing the department’s own data, disputed his reasoning. Of the more than 2,500 permit applications for construction projects in the critical dune area from July 1989 to February 1998, landowners had raised just three takings claims – and all were decided in the state’s favor.
A month after Mr. Harding’s letter, the Michigan Supreme Court issued a ruling in a widely watched case involving K&K Construction (see the Spring 1998 Great Lakes Bulletin) that dismissed Mr. Harding’s view on property rights. The Court concluded that there is no taking when a reasonable alternative exists. Yet Mr. Harding continues to hide behind the threat of lawsuits to justify his blanket support for development and industry.

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