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Filling The Protection Gaps

How to improve and simplify shoreline protection

April 1, 2001 | By Jim Lively
and Patty Cantrell
Great Lakes Bulletin News Service

Despite state and federal laws, coastal communities are not safe from damaging residential, commercial, and industrial development. Michigan has several laws that protect specially designated features along the shoreline, but no comprehensive state law protects the entire coastline. Existing regulations leave out important shoreline segments, and state and federal agencies have a poor record of enforcing the laws on the books.

The problem is that agencies rarely say “no,” and questionable construction occurs on sensitive shorelands anyway. In northwest Michigan’s Leelanau County between 1990 and 1999, for example, the Michigan Department of Environ-mental Quality’s Land and Water Management Division, which enforces the state’s coastal regulations, approved 91.6 percent of all applications for permits to build in protected critical dunes and high-risk erosion areas.

Communities can use a shoreline protection overlay to add protections, such as vegetative buffers, to cases of lax permitting. They can also use it to check whether developers are meeting all requirements in state permits. It is difficult for state regulators to watch projects closely because they are not always in the area. Local officials can monitor a development more easily and catch problems before they become costly for both property owners and the shoreline. But finally, and perhaps most importantly, the overlay fills in legal gaps by protecting dunes and bluffs that state laws do not currently safeguard.

The shoreline overlay accomplishes all this not by duplicating existing laws but by adopting and supplementing important provisions in them. Specifically, the overlay:

• Adds provisions and standards where existing laws lack coverage or are vague.

• Adopts the same permit provisions that other regulators use so that local permit requirements are the same as state and federal permit requirements. This gives the local government the authority to follow up and enforce state and federal permit conditions.

Here is a list of the local, state, and federal laws that apply to coastal concerns and how the overlay complements them.

Shorelands Protection and Management Act
This Michigan law covers only those high-risk
erosion, flood-prone, and important shoreline habitat areas that have been identified and mapped by the Michigan Department of Environmental Quality. It does not apply to unmapped areas, which communities might determine are just as sensitive or valuable. It does authorize local governments to inspect development activities in the high-risk areas and to enforce state requirements.

Sand Dune Protection and Management Act

This Michigan law applies some protections to state-designated “critical dunes.” It does not apply to all sand dunes — only those specifically mapped by the Michigan Department of Environmental Quality. Neither does it cover all development threats in designated critical dunes. The law allows local governments to develop their own sand dune protections and for local zoning officials to enforce state provisions.

Wetland Protection Act

Michigan’s wetland law prohibits filling and dredging of only those wetlands that are five acres or greater in size or are directly connected to a Great Lake, inland lake, or stream. The law’s prohibitions do not apply
if builders argue successfully that they have no “feasible or prudent” alternative to the proposed filling and dredging. A local shoreline protection overlay can supplement this law with such additions as requiring a buffer zone around wetlands and including smaller wetlands. There are special considerations for local governments that wish to enforce more strict wetland protections than the Department of Environmental Quality.

Soil Erosion and Sedimentation Control Act

This state law requires landowners to obtain permits for any soil-moving activitywithin 500 feet of a lake or stream and sets best management practices for applicants to follow. County soil erosion control officers administer this law. Coastal communities can add provisions to the soil erosion law in their shoreline protection overlay. This allows local officials to reinforce the provisions and be actively involved in the site review process.

Endangered Species Act

This federal law requires developers to obtain permits when working in areas where an endangered species is present or that the U.S. government has listed as protected habitat. In nondesignated areas, it is up to local governments to make room for wildlife to feed, nest, roam, and remain a natural part of the region. Provisions in a shoreline overlay to preserve critical habitat for endangered species can significantly improve the chances for protecting these fragile shoreline residents.

Other Local Regulations

Nearly all development proposals that a coastal community will review for shoreline protections must first secure approval from other local officials, such as the county building inspector, drain commissioner, soil erosion control officer, and fire department.

The permitting process works best and is easiest on property owners if all agencies put their heads together over proposed site plans and help applicants develop a proposal that meets all requirements. Some counties host monthly meetings, where representatives of each permitting agency either sign off on particular site plans or work to resolve any conflicts between their different requirements. These meetings speed up the permit process.

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