Preserve the Dunes (PTD) has been in existence just over a year. It is amazing how much we have accomplished! Here is a summary of the first year's accomplishments and events.
In November 1997, PTD organized as a not-for-profit corporation in the state of Michigan and became an affiliate of the West Michigan Environmental Action Council (WMEAC). Contributions made to WMEAC for Preserve the Dunes are tax deductible.
The first newsletter was published in November, 1997. This is the sixth newsletter since then. About 950 of each issue have been mailed.
In early December 1997 PTD web site (http://www.daac.com/sosdunes/) went on-line. Since then we have had about 6,500 hits. Many people have visited and registered their support for preserving the dunes of southwest Michigan.
We commissioned an engineer to evaluate the mining practices at the Nadeau Pit. The study documented numerous violations of the sand dune mining law and conditions of the permit.
In mid-December 1997 we reported the findings of the engineering study to the Department of Environmental Quality, Geological Survey Division, which is responsible for enforcing the Sand Dune Mining Act. We also documented violations at the Busse Property and questioned the permit that had been issued for the Nadeau Site in Hagar Township.
We had hoped that once notified the DEQ would take action to enforce the law. Instead, after two months they denied that there were any violations. We responded immediately with further documentation of violations.
The engineering review noted that TechniSand (the mine operator) might not have a permit to dredge. This permit is issued by the Land and Water Management Division (LWMD) of the DEQ. TechniSand needed the permit to create a lake so they can mine below the water table.
We checked further and found that a permit had been issued to the previous operator of the mine. It had expired in December 31, 1993. No permit had ever been issued to TechniSand. We asked the LWMD to stop all dredging until a permit was applied for and issued, and requested that a permit request be treated as a new permit rather than as a renewal. Despite the requirements of the law, LWMD did not stop the dredging but did require that a full permit application be made.
A public hearing was held in May, on a Tuesday afternoon. In spite of the conflict with work, over 75 people attended. Over 30 spoke in opposition to the permit. The impact on Rogers Creek and on wells of nearby homes were major concerns. As a result of the meeting a complete hydrogeological study of underground water flows was required.
Based on information that PTD received from the DEQ under the Freedom of Information Act, we discovered in late April that TechniSand had been given permission to mine the buffer zone at three places along the Blue Star Highway. One area was adjacent to land owned by the Thunder Mountain Heights Association (TMHA). Mining here would have destroyed the dune across the Blue Star Highway from Fire Drive 14 and made the strip mine completely visible from the highway.
TMHA took up the fight, led by Georgia Boerma with assistance from Eric Brown, Rodger Bittner and Bud Botkin. The permissions were revoked. TechniSand was ordered by the DEQ to regrade and replant the buffer next to the TMHA property.
In May PTD wrote to Governor Engler and sent him our February response to the DEQ, which documented our assertions, the DEQ's reply and our response with substantiating evidence. We asked that his office investigate. Two weeks later, Russell Harding, Director of the DEQ, stated in a letter that he had been asked by the Governor to reply and the DEQ would respond item by item to our allegations.
In July, we finally received the DEQ's detailed reply from Russ Harding. This time the DEQ admitted that our findings had identified a number of violations, but that these conditions had now been corrected. They denied that any conditions that had not been corrected were violations.
In response PTD immediately documented the entire correspondence with the DEQ, presented further evidence of violations and cited requirements of the sand dune mining regulations and permit conditions. We questioned the DEQ's motivations and the accuracy of their reply.
Early in July, PTD filed a complaint in Trial Court of Berrien County against TechniSand and the DEQ under the Michigan Environmental Protection Act (MEPA). We maintain that the permit to mine the Critical Dunes at the Nadeau Site in Hagar Township will destroy this unique natural resource and was issued by the DEQ unlawfully.
In 1989 the legislature amended the Sand Dune Mining Act to prohibit any sand mining of Critical Dunes with only two exceptions:
1. A mine operator already mining a critical dune with a valid permit in July 1989 could continue to do so.
2. An operator mining a critical dune with a valid permit in 1989 could mine an adjacent critical dune.
TechniSand was not the operator of this mine in 1989. They were not even incorporated until 1991, the year in which they bought the land. Therefore, they do not qualify for the exceptions provided in the law. This case should be a landmark decision that will protect the Critical Dunes as the legislature intended.
TechniSand and the DEQ filed a motion to have our complaint dismissed and then requested that "discovery" be delayed until the hearing on their motion was held.
On September 14, the judge ruled that discovery should proceed and he gave TechniSand and the DEQ 21 days in which to respond to our interrogatories, and requests for documents and admission of fact.
TechniSand and the DEQ tried to have our complaint dismissed on the basis that the MEPA did not apply to this situation. Furthermore, they maintained that we were just aggrieved property owners who should have exhausted administrative remedies, but did not. This would have required us to file for an administrative appeal within 21 days of the DEQ issuing the permit (in November 1996). Assuming that we failed to have the permit rescinded, we could then appeal to the courts within 60 days. They argued that in any case the time for filing a complaint had passed.
At the hearing on October 26, the judge ruled that PTD had standing under the MEPA, that the MEPA applied to this case, and that the complaint was timely.
Next the DEQ and TechniSand must respond to the substance of the complaint. Hopefully, the next hearing will be in early February.
Coverage by the press is important. Newspaper and TV coverage reaches many more people than we could otherwise contact and builds an awareness of the serious threats to the sand dunes. It also gives PTD credibility with the public.
The first article about PTD was in the Herald-Palladium of Benton Harbor in February. The article was less than an enthusiastic endorsement, but it generated a dozen letters to the editor in support of our efforts. In March the Associated Press released an article about PTD that was carried in papers all over Michigan. A reporter for the Chicago Tribune read it and within two weeks PTD was on the front page of the Tribune.
The South Haven Tribune and the Herald-Palladium carried stories about the Thunder Mountain skirmish.
The Kalamazoo Gazette and the South Haven Tribune covered the LWMD hearing on dredging. Just prior to the filing of our complaint, the AP story was carried on the national wire. Newspapers from Alabama to California printed the article.
Filing the complaint attracted more interest from the media. Channel 3 in Kalamazoo, and Fox 28 in South Bend both interviewed Gerry Thomas and filmed the Nadeau Site. The Kalamazoo Gazette, the Herald Palladium and the South Bend Tribune also covered the filing of the suit and subsequent hearings.
PTD had a float in South Haven's Labor Day Parade, thanks to Hub Erickson and his family. The response to the float made clear that there is broad support for preserving the dunes and that most people thought that the laws passed in the late 1970's had already protected the dunes. Many people at the parade have registered their support of our efforts.
By late summer contributions had reached nearly $30,000. The membership had grown to 400. But legal expenses were mounting rapidly. The need for funds had become critical. Just in time we received a grant for $50,000 from a family foundation in Chicago.
Since then we have raised over $20,000; membership is about 450; and nearly 600 people have registered support for PTD's efforts through the web site or by sending in forms printed in each newsletter. We still need another $30,000 to continue this battle over the coming year. We hope to grow to 1,000 members and supporters by this time next year.
We are planning on expanding our efforts to protect the dunes through conducting research into the mining practices throughout western Michigan, presenting our findings to state legislators, and publicizing the results. These efforts will increase our need for contributions and funding.
Covert Zoning and Planning Commission changed the zoning to industrial for the site of US Gen's gas fired power generating plant. The Van Buren County Planning Commission had recommended creation of a zoning district for power generation that would include this site and the Palisades Nuclear Plant, since the area does not have the infrastructure to support a general industrial use. The Township Board subsequently confirmed the rezoning to industrial use. US Gen is reported to have selected the Covert Site over several other locations.
Recently TechniSand applied to Covert Township for a permit to mine near the intersection of 38th Avenue and 78th Street in Covert. A hearing will be held at the Township Hall at 7:00 PM on December 21, 1998. The area is just east of the Ross Preserve and south of the old sand mine on the Garlanger Property.
The proposed mine will not be in a critical or designated dune area. However, we do have several concerns. With extended hours of operation, the mining activity and truck traffic will probably disturb neighbors. The heavy trucks carrying 55 tons of sand will probably destroy roads not designed for such heavy loads. In addition, TechniSand does not have a good record of compliance with DEQ regulations. The citizens of Covert need to know how the Township's mining and noise ordinances are going to be enforced and how is enforcement going to be funded.
Join with us in fighting to preserve the dunes of southwest Michigan. Complete the form on the opposite side and return it. If you can, please enclose a contribution.
