Posted on July 3, 2019
Grand River at Allendale Township on Monday, April 8, 2019. A group named Grand River Waterway wants to dredge a 23-mile stretch of the river – between Grand Rapids and the Bass River Inlet near Eastmanville in Ottawa County. The dredging would make the Grand River accessible to power boaters looking to travel from Grand Rapids to Lake Michigan. The Allendale Waste Water Plant can be seen, top left.
GRAND RAPIDS, MI — Should riverfront property owners get to decide whether a controversial proposal to dredge a stretch of the Grand River in West Michigan, thereby opening the body of water to larger powerboats, moves forward?
For Ottawa County, the answer is a resounding yes.
In a letter sent to the Michigan Department of Natural Resources on June 11, Ottawa County Corporate Counsel Doug Van Essen said the county “has the legal right to approve or disapprove of any dredging on its property.”
“Since the United States has abandoned its regulation of the portion of the Grand River in the proposed Project (area) and Ottawa County is a major owner of the bottomlands along the route, the county’s consent, along with all other riverbank owners on the Project route is necessary for the project to move forward,” he wrote.
The letter marks Ottawa County’s latest step to derail the dredging project, which was spearheaded by Dan Hibma, a West Michigan developer and husband of former Michigan Secretary of State Terri Lynn Land.
Supporters say the project would boost recreational opportunities and spark economic development, but opponents fear it would hurt the river and shoulder municipalities with significant maintenance expenses. Ottawa County’s board of commissioners approved a non-binding, symbolic resolution opposing the project in April.
Ottawa County’s legal interpretation stands in opposition to legal advice provided last year to the DNR by the Michigan Attorney General’s Office. The advice stated that “a state governmental agency is not required to obtain land owners approval for sampling or dredging activities.”
So, who’s right?
Two law school professors contacted by MLive.com questioned Ottawa County’s assertion. They argued that such a position would “conflict” with the public trust doctrine, a legal concept stating that resources, such as rivers and streams, can’t be privately owned, and that the state has authority to protect and enhance the public’s right to use those resources.
Ottawa County’s “argument would really be that the state cannot do anything without the permission of everyone affected by it,” said Charles Ten Brink, a professor at Michigan State University College of Law who teaches courses on land use and eminent domain. “To my mind, that seems to be a pretty broad claim.”
Gerald Fisher, a distinguished professor emeritus at Western Michigan University Cooley Law School, added: “These are public waters of the state. If you have public waters of the state for recreation and navigation purposes, there has to be some governmental entity that could take jurisdiction and resolve disputes and initiate projects to improve navigation.”
But one environmental attorney had a different take.
Margrethe Kearney, a senior staff attorney at the Environmental Law and Policy Center, an environmental advocacy group that focuses on the Midwest, said it would be difficult to argue that the project is justified under the public trust, because “it would impair the water and impair the ecosystem.”
“The public purpose here is really murky,” she said. “It would hurt some people and help some people, and that makes it pretty tough to justify.”
The dredging project, known as the Grand River Waterway, is embroiled in controversy.
Since April, 10 municipalities in Ottawa County and the city of Grandville in Kent County have passed symbolic resolutions opposing the project.
Numerous associations and nonprofits representing the environmental community and anglers have also come out against it. In addition to concerns over environmental damage and maintenance costs, they’re worried the project would disrupt recreational activities such as fishing and kayaking.
The project seeks to dredge portions of a 23-mile stretch of the river between downtown Grand Rapids and the Bass River inlet near Polkton Township in Ottawa County. The idea is to create a 50-foot wide, 7-foot deep channel big enough to accommodate vessels 26-feet or larger. Doing so would enable powerboaters to travel between Grand Rapids and Lake Michigan, a trip that one study said would take about four hours.
The dredging project was spearheaded by Hibma. But it later became a state project, after the GOP-controlled Michigan Legislature approved public funding for the project. To date, a total of $3.45 million has been allocated.
Language in the 2019 state budget directed the DNR to issue proposals and hire private contractors to collect and analyze sediment samples in the river. Dredging would commence, the budget states, only if the sediment samples are “satisfactory and the necessary permits are issued.”
The sediment sampling has not yet occurred. Upon completion of the sediment testing, a dredging permit would have to be submitted to and approved by the Michigan Department of Environment, Great Lakes, and Energy for the project to move forward.
When asked about the legal concerns raised by Ottawa County, DNR spokesperson Ed Golder said his department is still “evaluating the prospect of sediment sampling and have not yet made a decision.”
“The issues raised in the correspondence from Ottawa County are among the many community concerns we are considering in our evaluation of the project,” he said.
Kelly Rossman-McKinney, a spokesperson for Michigan Attorney General Dana Nessel, said by email that the attorney general’s office has not issued a formal opinion on the question of whether the approval of land owners is required to conduct sediment sampling or dredging activities.
Rather, she said, the attorney general’s office — which was then led by former Attorney General Bill Schuette — issued legal advice to the DNR about the matter. She did not respond to a follow-up email asking whether the attorney general’s office still stands behind its legal advice.
Hibma supports the attorney general’s legal advice. He said the DNR permit indicated the sediment sampling cannot begin prior to July 1, and that “there’s plenty of time yet to get it done.”
Also, in response to community concerns about the project’s environmental impact, he said that 16 miles of the 23-mile stretch of river in the project area would not require dredging. That space in between dredged areas would minimize the environmental impact of soil removal, he said.
Van Essen, Ottawa County’s attorney, said the 23-mile stretch of the river between Grand Rapids and Polkton Township, where the project is proposed, is not regulated by the federal government as a navigable waterway.
And because of that, “river bank owners own the bottomlands to the center of the watercourse under Michigan common law, even if the river is navigable and subject to a public trust for commercial and/or recreational use.”
Ottawa County owns hundreds of acres of parkland along the stretch.
Van Essen, in an interview with MLive.com, said he’s hopeful the DNR will consider Ottawa County’s argument on the legality of the project. He said the idea of dredging the river has “very little policy weight behind it,” and that there are “overwhelming policy reasons not to do it.”
“We just wanted to make sure Ottawa County’s perspective on both the legality and the policy merit are known,” he said.
Source: mlive.com
