Army Corps Stops Work on Elk Rapids Dredging after Wetland is Obliterated – SWANCC Case Likely to Determine the Corps’ Response to Issue

Army Corps Stops Work on Elk Rapids Dredging after Wetland is Obliterated – SWANCC Case Likely to Determine the Corps’ Response to Issue

Scott McEwen
Tip of the Mitt Watershed Council

An alarming situation is unfolding in the quiet Northern Michigan coastal Village of Elk Rapids. On February 15th of this year, the Michigan Department of Environmental Quality (MDEQ) allowed the Village to modify their marina dredging permit to place 7,000 cubic yards of dredge spoils into a wetland. (A typical dump truck holds ten cubic yards, so the permit modification allowed 700 dump truck loads of fill to be placed in this wetland.)

Background
In June of 1997, MDEQ staff made a determination that this particular wetland was “non-contiguous” or “isolated” from lakes or streams or to Lake Michigan via groundwater. Such a determination is a “kiss of death” to a wetland, but fully within the legal framework of Part 303 of Michigan’s wetland statute. Such a jurisdictional determination signifies that a wetland can be filled, dredged, or drained without any permit authorization from MDEQ.

The results of the MDEQ decision have been that a wetland over ten acres in size has been virtually obliterated under numerous feet of clay and fill. The clay is being used to create buildable sites for a 24-unit development in the wetland known as the “Elk Rapids Preserve.” The marina clay was being hauled free of charge to the Village by the developer to the site.

In March 2001, the Army Corps of Engineers (Corps) biologists, however, made a determination—that the wetland was within the Corps’ jurisdiction—and any efforts to fill or dredge in the wetland would require a permit from the Army Corps of Engineers. The Village of Elk Rapids and the developer received a permit modification from the MDEQ to place 700 dump truck loads of clay into the wetland, but no permit was obtained from the Army Corps. The placement of fill in this wetland is a violation of both the marina dredging permit and of Section 404 of the Federal Clean Water Act. The Corps ordered the work on the project stopped after the violation was detected.

These dates are significant because on January 9, 2001, the U.S. Supreme Court issued a decision in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers. The Court’s decision limited the U.S. Army Corps of Engineers protection of isolated wetlands under Section 404 of the Clean Water Act (CWA). Prior to the SWANCC decision, the Corps had adopted a regulatory definition of “waters of the U.S.” that afforded federal protection for most of the nation’s wetlands.

According to Jon Kusler of the Association of State Wetland Managers, SWANCC “potentially removes much of the Clean Water Act protection for 30% to 60% of the Nation’s wetlands.” A preliminary estimate from Wisconsin suggests that approximately 79% of wetlands will be removed in that state. Nebraska estimates more than 40%. Indiana estimates 31% of acreage and 74% of total number of wetlands. Delaware estimates 33% or more of the freshwater wetlands, depending on whether connections through drainage ditches qualify wetlands as “tributary” or “adjacent”. However, the amount of Clean Water Act protection lost due to the SWANCC decision removed will depend upon the definitions used by the Corps and EPA—and ultimately supported by the courts—for the terms “adjacent”, “tributary”, and “significant nexus”.

The Elk Rapids wetland is just one of thousands in Michigan and around the Great Lakes that are now vulnerable to draining, dredging, and filling post-SWANCC. How the Corps interprets the SWANCC decision will in large part determine whether the Elk Rapids wetland fill will be allowed to remain, or whether the Corps or the MDEQ will require full restoration of the Elk Rapids wetland site.

 

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