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..
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
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
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
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
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’
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
law. No one from
the DNR conducted a site visit before authorizing the
permit for what the DNR characterized as “an experimental
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.
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.
law mandates that the DNR evaluate such impacts under
law, and the DNR’s failure to do so violates its obligations
Permit Violates Minnesota Regulations
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
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
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
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
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,
Additionally, the biological character
of the water “shall be affected to the minimum degree
feasible and practicable” Minn. R. 6115.0200, subp.
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.
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
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
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
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
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.
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
The permit at issue violates multiple provisions
law and DNR regulations.
Furthermore, Mr. Melby’s own actions violate
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.
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
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