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Action Alert Posted By the Environmental Association for Great Lakes Education

08/14/2002

SEND QUICK FAX: STOP PERMIT VIOLATING DEVELOPMENT ON LAKE SUPERIOR NORTH SHORE---PRESERVE DOUBLE BAY, HOVLAND, MN. 

Developers in Hovland are illegally filling wetlands and beginning dredging in the bay. This aerial photo show the dredging damage these same developers did further up the shore near the Grand Portage Reservation. You can see how haphazard dredging by the developers is affecting the aquatic ecosystem and drinking water.

Take Action! Send a quick fax to Allen Garber, Commissioner of the Minnesota Department of Natural Resources. Fields in yellow are required. Full information on this issue can be found below this fax form. Thank-you.

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Residents of a small bay on Lake Superior, some 20 miles easterly of Grand Marais, have raised a challenge to the US Army Corps of Engineers, the Minnesota Department of Natural Resources, and Cook County.  The issue is the permitting of a large 100 ft. dock with 50 foot ell to accommodate a single family’s “marina scale boats  in a shallow residential bay and neighborhood and dredging  of a 150 foot boat channel to reach “navigable waters”project with no public input, and grossly insufficient planning and environmental documentation. 

Cook County has taken the position that they have no permitting authority in the issue, yet they permitted a 4,000 square foot “industrial sized” garage/storage building in a wetland where heavy equipment associated with the family’s former marina at Grand Portage  is being stored and operated in violation of numerous zoning regulations.

The wetland was to be the destination of dredged materials generated by construction of the proposed dock and approach channel.  Neither the Corps nor the DNR recognized the linkage between the proposed dock/storage building and dock installation, nor did they take into account the impact on over 15 –20 adjacent property owners who are “lake dependent” for their household water supply..  

 The process which was associated with the already-issued permits by the Corps and the DNR is an example of a permit process which addresses the dock application only, and ignores the numerous other impacts.  Water quality and the water supplies of residents will be affected;  fish spawning areas will be affected;  the resident and migratory waterfowl will be affected; the serene atmosphere of a residential area will be affected; the aesthetics of the small bay will be affected – yet all of these impacts have been given short shrift in the permit issuance.If this is the process which is designed to protect Lake Superior, then this lake’s viability as the cleanest fresh water lake in the world is at great risk.  When the County whose zoning Ordinance includes extensive protections in sections on “Shoreland Management” and “North Shore Management” claims that it has “no clout”, then the Lake is doomed.  For the Corps of Engineers and DNR to issue permits with little if no coordination, with one another or the County, in spite of extensive protections set forth in the Cook County Zoning Ordinance, is a dereliction of stewardship of the grossest kind. The precedent established by this faulty and negligent process is an insult to those who have worked so hard to protect the Lake from this very circumstance.  For Cook County to abdicate its responsibilities under its own Ordinance requirements is a violation of the trust of the citizens and residents it is charged to serve.  For the Corps and DNR to have so blatantly squandered an opportunity to exercise stewardship in the protection of Lake Superior is an apt example of a process gone amok.

 

TAKE ACTION: Contact Public Officials for Accountability and Revocation of these faulty permits

 Do not let the DNR and Army Corps refer you to the local officials at Two Harbors.  They are the ones who permitted this mess.

  • Governor Jesse Ventura  651/296-3391
  •  John Guenther, DNR Deputy:  218/327-4402.
  •  Commander Robert Flowers (Army Corps in D.C.)  202/761-0001.
  •  Major General Robert Griffin, Director Civil Works (Army Corps in D.C.) 202/761-0099.
  •  Robert J. Whiting, Army Corps, Regulatory Branch, St. Paul..
  • Cook County Commissioners:  Jan Hall 218/475-2307
  •  Jim Hall, Bob Fenwick, Carol Cresngzk, and Walt Mianowski:  218/387-3000.
  •  Cook County Attorney, Bill Hennessey, 218/387-3000
  •  Tim Nelson, Director of Zoning.  218/387-3000.
  • Rep. Tom Bak218/666-5041 or 218/741-6010

 For more information about this environmental calamity in the making and the failure of the process Contact: 


COPY OF FULL LETTER TO MN DNR:

Allen Garber

DNR Commissioner

500 Lafayette Road

St. Paul, MN  55155

 

Dear Allen Garber and DNR Staff:

            This letter is submitted on behalf of Penny and Rolf Hong and Helen and Charles Faust regarding the permit issued to Mr. Melby, #2001-2096.

            As you know, the Department of Natural Resources has jurisdiction over public and protected waters pursuant to Minnesota Statutes Chapter 103G.  Section 103G.245 grants the DNR authority to issue permits to build in public waters, provided that the construction complies with all applicable federal, state and local statutes and regulations.  The Permit # 2001-2096 as issued violates Minnesota law and regulations.  Furthermore, Mr. Melby has violated the provisions and restrictions contained within that permit.  Thus, the DNR should revoke the permit and prohibit further construction of the dock project.

The Permit Violated Minnesota Law

            Section 103.245G, subd. 7 states that “a public waters work permit may be issued only if the project will involve a minimum encroachment, change, or damage to the environment, particularly the ecology of the waterway.”  In this case, the proposed dock project has the potential to impact the ecology of Lake Superior, and this potential impact must be studied before a permit can be issued.  In an e-mail from Don Schreiner, DNR Fisheries, to Cliff Bently, the hydrologist assigned to evaluate the permit application, attached hereto, Don Schreiner states that the lake bottom to be disturbed by this project is fish habitat “which is important spawning substrate for lake trout and other species.”  The DNR has also stated that the project will change or damage the ecology of Double Bay or Double Bay.  The extent to which Double Bay will be damaged has not been examined by the DNR, and thus the DNR cannot fully determine that the project, as proposed, will involve minimum impact without further study.

            Additionally, the DNR failed to examine the cumulative impacts of the project on the ecosystem.  The permit for the dock and boat ramp are part of a larger project that also encompasses a 4200 square foot pole barn, built in 2001, for which Mr. Melby never applied for a DNR protected wetlands permit, see discussion below.  The regulations governing public waters define “project” as a “specific plan, contiguous activity, proposal, or design necessary to accomplish a goal . . . a project may not be split into components or phases for the sole purpose of gaining additional exemptions.”  Minn. R. 6115.0710, subp. 30a.  Mr. Melby built the pole barn in 2001, and then applied for the permits to construct the dock in 2002 in an attempt to disconnect the two activities. 

            Mr. Melby admitted in a Cook County Planning Board meeting that he intends to use the dock and pole barn in order to service his boats as well as his friends’ boats.  Additionally, Mr. Melby’s permit application specifically links the dock and the pole barn as a single project.  Mr. Melby states that excavated material will be transported across Highway 61 to the pole barn, and he attached the permits for the pole barn.  Thus, the two structures should be considered as one entire project.  Don Schreiner raised this issue with Cliff Bentley, noting in his email that “cumulative impact is a consideration that we should not ignore.” 

            To date, the DNR has ignored the cumulative impacts of this project on the ecosystem of Double Bay as mandated by Minnesota law.  No one from the DNR conducted a site visit before authorizing the permit for what the DNR characterized as “an experimental project.”  There was no hydrology study, no sediment boring,  no examination of the wetlands on Mr. Melby’s property, no water sampling of the bay, no wildlife  inventory – absolutely nothing was done to examine the current status of the ecosystem in order to determine whether the addition of the dock, in conjunction with the pole barn, would “encroach, change, or damage” the ecology of the bay. 

            Furthermore, Double Bay was the site of commercial fishing enterprises which used a combination of oil and gas products in outboard motors.  The potential exists for residual petroleum and solvents to be buried in the sediment of Lake Superior, which dredging could disturb, thereby contaminating Double Bay.  The DNR should have conducted studies to determine what the potential environmental effects of such dredging would be before issuing the permit.  Minnesota law mandates that the DNR evaluate such impacts under Minnesota law, and the DNR’s failure to do so violates its obligations under Minnesota law.

 

The Permit Violates Minnesota Regulations

            Minnesota regulations prohibit excavation of public waters under certain circumstances, such as those presented in Mr. Melby’s project.  Minn. R. 6115.0200, subp. 3A states that excavation shall not be permitted “where it is intended to gain access to navigable water depths when such access can be reasonably attained by alternative means which would result in less environmental impact.”  Mr. Melby has access to the navigable waters of Lake Superior via the marina at Grand Portage, 14 miles away, Grand Marais, the Hovland public launch and the public launch at Horseshoe Bay.  The furthest boat launch, Grand Marais, is only 22 miles away.  By using these already established launches, access is reasonably attained and the environmental impact to Double Bay is avoided.  Mr. Melby even admits in his application that the proposed dock is for his own “convenience.”  “Convenience” is not a justifiable reason to cause potential environmental impact to Double Bay. 

            Excavation is further prohibited “where the proposed excavation will be detrimental to significant fish and wildlife habitat, or protected vegetation and there are no feasible, practical, or ecologically acceptable means to mitigate the effects.”  Minn. R. 6115.0200, subp. 3C.   The DNR has conducted no field investigation or studies to determine whether or not the proposed excavation will be detrimental to fish and wildlife habitat.  Thus, until the DNR evaluates the potential effect of the ecosystem, it has not complied with its statutory mandate.

            Furthermore, Minnesota regulations require that permits issued for excavation be subject to certain criteria.  The project must be “reasonable and practical based upon geologic and hydrologic conditions” including sediment type, soil strata, the life expectancy of the excavation with respect to bedload, longshore drift, and siltation patterns in the project vicinity.   Minn. R. 6115.0200 subd.5A.  To date, neither the DNR nor Mr. Melby has studied these required criteria in order to determine the feasibility of the excavation of the 150 foot approach channel in such a shallow bay.  By failing to do so, the DNR has violated its own regulations.

            The current permit violates a long series of other regulations that are aimed at ensuring that projects impact the environment as little as possible.  Minnesota regulations require that the proposed project “represent a minimal impact solution to a specific need with respect to all other reasonable alternatives,” Minn. R. 6115.0200, subp. 5C.  Additionally, the biological character of the water “shall be affected to the minimum degree feasible and practicable” Minn. R. 6115.0200, subp. 5D.  The water supply “shall be protected to ensure that the interests of the public and of private riparian landowners” are not affected.  Minn. R. 6115.0200, subp. 5H.  To date, the DNR has not examined any of these factors, nor has Mr. Melby’s permit application addressed any of them.  The permit therefore violates Minnesota law and should be revoked.

            With respect to the dock itself, the DNR’s permit allows Mr. Melby to build a dock that violates Minnesota regulations on public waters permits.  Minn. R. 6115.0211 states that docks shall extend into waterway only to a navigable depth, generally considered to be no greater than four feet.  The DNR permit allows Mr. Melby to build the dock to a depth of five feet.  Additionally, the regulations limit a dock width to six feet, while the DNR permit allows the dock to be eight feet.  Finally, the regulations require breakwater to be appropriately sized to provide a single mooring space for each riparian lot served.  Minn. R. 6115.0211.  Mr. Melby states that he intends to moor three boats ranging in size from twenty to twenty-eight feet in length. 

            With respect to the boat ramp, the regulations permit boat ramps to extend only ten feet beyond the ordinary level or into water more no more than four feet, whichever is less.  Minn. R. 6115.0210.  The DNR permit, however, allows the boat ramp to extend 65 feet.  Additionally, Mr. Melby has not demonstrated the need for a launching facility, as required by Minn. R. 6115.0211.  Although he states in his application that the nearest launching facility is fourteen miles away and he cannot use that on advice of counsel, evidence suggests otherwise.  The Grand Portage Band has publicly stated that Mr. Melby can use the marina on their reservation, see enclosed statement, and closer facilities include the Horseshoe Bay boat launch one mile away from Mr. Melby and the Hovland public launch and dock two miles away from Mr. Melby.

Finally, Don Schreiner states in his email to Cliff Bentley that the project should not exceed the footprint of the old dock with the exception of the 60 ft. dog leg.  Yet Mr. Melby submitted no footprint of the old dock, no dimensions, no engineering drawings.

Mr. Melby Has Already Violated the Permit Conditions

            Mr. Melby’s conduct under the permit further demonstrates that revocation is appropriate.  The General Provisions of the Protected Waters Permit issued to Mr. Melby require that if the permittee’s project results in the taking, using, or damaging of any property rights or interests of any person or persons, or of any publicly owned lands or improvements thereon or interests therein, the permittee, before proceeding, shall obtain written consent of all persons, agencies, or authorities concerned, and shall acquire all property rights and interests needed for the work.  There is no question that the construction of the 8000 square foot impact area for the boat ramp and dock, and accompanying dredging of the 150 foot channel in Double Bay would use or damage the property and rights of Mr. Melby’s surrounding neighbors.  Cliff Bentely’s letter to Rolf Hong, Mr. Melby’s neighbor, even acknowledges that potential for damage exists, stating that “it is reasonable that Mr. Melby take precautions to ensure that your water supply is not adversely impacted.” The dredging creates a potential threat to the health and potable water systems of 12-15 households on Double Bay.  To date, Mr. Melby has not sought permission from a single neighbor, in violation of his permit.

 

            Additionally, Mr. Melby characterized the dock project as separate from the pole barn project, thereby avoiding the obligation to notify neighbors of a project exceeding 10,000 square feet.  The pole barn is 4,200 square feet and the dock is 8,000 square feet, and thus the entire project exceeds 10,000 square feet.  Permit condition 16 requires permittees to list adjacent property owners in such instances.  Mr. Melby materially misrepresented the project in order to avoid this obligation.

The DNR Never Issued A Permit for the Pole Barn

            Mr. Melby violated Minnesota law by building a 4200 square foot pole barn on wetlands without obtaining a protected wetland permit.  The Army Corps of Engineers, in a letter to Penny and Rolf Hong, attached hereto, acknowledged that Mr. Melby’s pole barn construction “included the discharge of fill material in a wetland” for which no permit was issued.  Such action violates Minn. Stat. 103G.222 which states that “wetlands must not be drained or filled, wholly or partially, unless replaced by restoring or creating wetland areas of at least equal public value” under a plan approve by local or state government.  Minnesota law establishes strict criteria for filling a wetland, none which Mr. Melby followed in building the pole barn. No wetland replacement plan exists, and Mr. Melby failed to obtain state or local approval before filling the wetland to build the pole barn.  This violates Minnesota law.

            The permit at issue violates multiple provisions of Minnesota law and DNR regulations.  Furthermore, Mr. Melby’s own actions violate Minnesota law and DNR regulations.  The DNR is strongly urged to use its regulatory and enforcement authority under Minn. Stat. § 105 et  seq. and Minn. R. 6115.0255 and issue a cease and desist order on further construction, require restoration and replacement of wetlands that Mr. Melby filled illegally in conjunction with the pole barn and revoke and deny the Permit # 2001-2096.

Requested Action

            The Hongs and Fausts respectfully request that the DNR revoke Permit #2001-2096 and comply with Minnesota law and regulations regarding permitting of such activities.  The DNR must examine the potential impacts of the project on the ecosystem of Lake Superior and on the health and welfare of the families on Double Bay prior to the issuance of any further permits.  Furthermore, the Hongs and Fausts request that the DNR require Mr. Melby and Ms. Johnson to apply for a permit to fill the wetlands associated with their pole barn and to take any other remedial action necessary to mitigate the damage already created by Mr. Melby’s and Ms. Johnson’s unauthorized filling of wetlands.  The Hongs and Fausts request that the DNR prohibit Mr. Melby and Ms. Johnson for proceeding further with any construction activities on the boat ramp, dock, and in the area of the pole barn until all of these issues are resolved.

            Your attention to this matter is appreciated.  Please inform me by letter of your response by August 15, 2002.

Very truly yours,

Karleen M. O'Connor


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