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June 2000
Low
Lake Levels Create Increased
Permit Demand
By Ben Komrska, C.P.G. and Rich Micklin, C.P.G.
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Section 404 of the Federal Clean Water Act regulates the placement of fill, dredging or construction activities in waters, wetlands, or the land/water interface of the United States. With water levels dropping, the issues of dredging and wetlands fill permit requirements have come to the forefront. Michigan's Land and Water Management Division administers the federal program, however, federal agencies must review projects which impact critical environmental areas, or which involve large quantities of fill.
NEW DOCUMENTATION REQUIREMENTS
Michigan is addressing their rules to more closely parallel the Federal regulations. Consequently, there are new requirements effective April 18, 2000 applicable to the filling of wetlands. Before a permit is granted, documentation is required explaining that there is "no feasible and prudent alternatives" to the filling of those wetlands. The regulations are now expanded to also include the potential of not using your property for the proposed activity.
As a rule of thumb, all new permit applications requesting to fill more than 1/3 of an acre will require a mitigation plan or, in other words, a plan for the creation of more wetlands than is being filled. Depending upon the nature of the wetland to be filled, the Michigan Department of Environmental Quality (MDEQ) may require the preservation of up to ten acres of new wetlands for every acre being filled. Penalties for "after the fact" permits, (assuming it is a permitable activity) can double these ratios.
As of June 1, 2000 a new "Joint Permit Application" from the MDEQ and the US Army Corps of Engineers must be completed for construction activities in water or at locations where the land meets the water, including wetlands. Examples of projects using these permits would include: filling, dredging, excavating, shore protection, docks, piers, mooring piles, boatwells, boat launches & hoists, construction of ponds, bridges, and dams in designated environmental areas.
LOWER WATER LEVELS
The 31/2 foot drop in water levels in Lakes Michigan and Huron since 1996 is a result of unusually light snow pack in recent years and consequently minimal spring runoff. The Corps of Engineers is predicting that lake levels will drop another foot before the end of this year's boating season and according to the National Weather Service, this trend is expected to continue at least into the year 2001. By the end of this summer, water levels could approach record lows not seen since 1963-64. However, even with this rapid drop in water levels, this is still within normal variation limits charted since 1918.
Since lake levels are currently low and anticipated to be low for sometime, dredging companies have been in high demand. All dredging activity on the Great Lakes or on inland lakes and streams requires a permit from the MDEQ. The MDEQ reports a 74% increase over last year in the number of dredging permit applications (more than 450). The permit approval process is now averaging about 2 months to complete, but the MDEQ has up to 90 days for its review. Currently, the MDEQ staff reviews approximately 9000 Land and Water Management permits, granting approximately 75-80% of them.
If you are planning to dredge, EC&S recommends that you begin the permit process and contract a dredging company by the end of this summer for next year's activities. Depending upon the amount of material to dredge and its location, the permit may require a sieve and or laboratory analyses. Without an experienced environmental consultant, samples may be improperly collected, resulting in a biased sieve analysis causing skewed results and additional and unnecessary laboratory expenses.
The MDEQ is stepping up enforcement on unpermitted activities. In southeast Michigan, a special team was formed to go out with local prosecutors to address violations. Enforcement in other state districts will follow.
Throughout Michigan, a lower water table or lack of wetland hydrology is now occurring. Consequently, the MDEQ is seeing a flurry of fill permit applications for previously "wet" project sites as well as dredging permit applications. The permitting process and regulations can be cumbersome. The assistance of an environmental professional is highly advisable and can save time and money for those engaging in these activities.
Transaction
Information
The
Baseline Environmental Assessment
By Lee Blodgett, R.E.P.A.
In
previous newsletters, we discussed Phase I and Phase II of an Environmental
Site Assessment. When contamination is substantiated on a property above
residential cleanup criteria by result of the Phase II, the site is defined
as a "facility." A purchaser has the ability to proceed with the purchase
of the property without the liability for cleanup by conducting a Baseline
Environmental Assessment (BEA). The BEA establishes the level and nature
of contamination on a property so that there is a means to distinguish
prior contamination from any potential new contamination following the
sale.
There are 3 categories of a BEA, each of which generally require a varying degree of contamination delineation. The category is dependent on the nature of existing contamination and the intended use of the property. For example, if a purchaser intended to operate a service station at an impacted site which was previously a service station, this would require more information than if the intended use was to open a flower shop. It is more difficult to distinguish between "old" and "new" releases where the same chemicals are involved.
As recently as March 11, 1999, new BEA rules became effective that address specific timeframes that must be met to obtain the liability protection. New "Due Care" rules also took effect on March 11, 1999. "Due Care" is applicable to a person who owns or operates property that is a "facility." Violations of the BEA and "Due Care" requirements may leave a purchaser liable for the cleanup cost and natural resources damages in addition to any worker related medical costs. We will discuss "Due Care" further in our next newsletter.
What's
New at EC&S
EC&S Awarded Kalamazoo Brownfield Contract
By
Lee Fivenson
EC&S is very pleased to announce that we have been awarded a contract with the City of Kalamazoo as one of their Brownfield and Environmental Consultants. We were one of five firms selected out of a field of 25 through a Request for Qualifications process. Kalamazoo is a leader in brownfield redevelopment, having procured over $23 Million in funding for brownfield redevelopment projects. It is truly an honor to be selected as one of the City's consultants and we look forward to contributing to Kalamazoo's economic development. EC&S will be setting up an office in downtown Kalamazoo in the near future, which is in alignment with our strategic business objective of having a downstate office dedicated to brownfield consulting.
Environmental
Bulletin
New Brownfield Development
Opportunities Spurred
By Recent Brownfield Legislation
By Mark Chilcott
In
February 2000, a new package of brownfield redevelopment bills was introduced
in the Michigan Legislature. The five-bill package will expand the type
of property eligible under the Brownfield Redevelopment Authority program,
expand the eligible funded activities, and will increase the maximum Single
Business Tax credit from $1 million per project to $30 million per project.
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Brownfield site slated for redevelopment. |
The current brownfield laws allow the use of tax increment financing to pay for clean-up costs of contaminated property and provide a 10% SBT credit for new investment on the property. The proposed new bill package would amend brownfield legislation to:
• Expand eligibility from contaminated property to include blighted and functionally obsolete property.
• "Core Cities" can freeze property taxes for up to 12 years on a functionally obsolete, blighted, or contaminated property that is being rehabilitated.
• Expand eligible funding uses to include infrastructure improvements, lead and asbestos abatement, site preparation, demolition, and reasonable administrative and operating activities.
• Increase maximum SBT credit to $10 million and $30 million
• Allow firms to assign their SBT credit to tenants/lessees
• Eliminate SBT credit recapture when real property is sold or transferred.
Michigan is in the forefront in redeveloping contaminated, blighted and obsolete property and this bill package will spur new opportunities. For more information about these bills or a copy of the legislation, contact Mark Chilcott at 231-941-2366.
Brownfield
Redevelopment Funding
CMI Waterfront Redevelopment Grants Awarded
By Mark Chilcott
On April 13, 2000, Governor Engler announced $28,350,183 in grants to redevelop waterfront properties in 22 communities across the state. The grants represent the second and final round of a $50 million program to reclaim and revitalize Michigan's waterfronts. The first round of grants, announced in August 1999, distributed more than $18 million to 13 communities.
The Waterfront Redevelopment Grants provide funding to local units of government and other public bodies to revitalize waterfront areas by funding property acquisition, demolition, environmental response activities, and public infrastructure and facility improvements. The main objective is to encourage private investment and private job creation along waterfronts.
Implementation of these projects will occur this year. Developers or other parties interested in obtaining a list of the communities that have received Waterfront Grant funding and a description of their specific projects and contact names can contact either Mark Chilcott or Lee Fivenson at EC&S (231-941-2366).
Land
Development News
Wetland Rule Changes Could Impact Development Projects
By Garth Greenan, P.E.
The
MDEQ has amended the rules regarding the Wetlands Act. The state is changing
its' program to more closely match those of the US Army Corps of Engineers,
and these changes will impact how land may be developed. If you have a
regulated wetland on the site of a proposed project, there is a new Joint
Permit Application that will need to be completed and submitted to the
MDEQ. Mitigation requirements have been increased, and depending on conditions,
there may be a 10 to 1 mitigation area required. If you have a planned
project, but have not filed a wetlands permit application yet, you may
have to reserve a larger wetlands mitigation area than you were planning.
See this newsletter's front-page article for more information on this
permitting change.
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Road North, Suite 9 Traverse City MI 49686 |
Phone 231-941-2366
• Fax 231-941-2375 Email info@ecswebsite.com |
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