On February 12, 2024, the U.S. Army Corps of Engineers (“Army Corps”), along with the State of Michigan, denied applications for permits to develop a marina on the Kalamazoo River Mouth in Saugatuck Township. The proposed project sought federal and state approval to develop a large marina basin within significant dune areas as well. The marina project would be part of a larger housing plan proposed by developers, North Shores, L.L.C.
The Department of Environment, Great Lakes, and Energy with the State of Michigan (“EGLE”) issued its denial based largely on finding significant adverse effects the project would pose to natural resources associated with the Kalamazoo River. The agency also noted an inadequate review of the projects proposed hydrologic groundwater modeling. The Army Corps subsequently issued its denial letter to coincide with EGLE’s evaluation.
These denials follow a separate years-long dispute over Saugatuck Township Zoning Board of Appeal’s earlier decision to grant a zoning permit for the housing development project, which involved building this marina basin. Saugatuck Dunes Coastal Alliance—a nonprofit environmental organization, filed suit in 2018 to challenge the Township’s decision. Ultimately, this lawsuit lead to a case before Michigan’s Supreme Court in Saugatuck Dunes Coastal Alliance v. Saugatuck Township, 509 Mich. 561 (2022).
While Michigan’s Supreme Court case involved separate parties and issues of standing, Coastal Alliance challenged the Zoning Board’s decision based on similar environmental concerns cited by EGLE and Army Corps. In regard to the marina basin, plans proposed it would measure approximately 6.54 acres with surrounding sheet pile seawalls and large rubble and stone armor. Thus, given the proposed project’s direct impact to the Kalamazoo River and sand dunes, developers were required to apply for several permits specifically related to environment and natural resources protection. As it often happens generally, while developers received zoning approval, federal and state law still require additional evaluations based on environmental circumstances.
With respect to the state, EGLE reviewed North Shores’ application under several authorities of the Natural Resources and Environmental Protection Act (1994) (“NREPA”). In general, depending on the nature and scope of a project, it will be subject to different regulations under the Act. It follows, EGLE provides different permits to apply for based on applicable provisions. For North Shores proposed marina project, governing regulations included Part 31, Water Resources Protection, Part 301, Inland Lakes and Streams, and Part 353, Sand Dune Protection and Management.
Notably, within Part 301 for Inland Lakes and Streams, it provided that EGLE “shall not” issue a permit if it finds the project will adversely affect public trust or riparian rights, as well as unlawfully impairing or destroying any of the waters or natural resources. Part 301’s Administrative Rules section further instructs EGLE shall not issue a permit unless it determines that any adverse effects “will be minimal,” and no feasible and prudent alternative is available.
Citing in part to Part 301, EGLE determined the proposed marina would “adversely impact” the Kalamazoo River’s natural resources, the public’s right to navigate and fish. Additionally, it found said project “permanently impacting” critical dune areas in Saugatuck Township based on the projected loss to a significant portion of open dune habitat. Of note, EGLE cited project would also have “significant effects” to tribal uses of the Kalamazoo River, as Potawatomi communities have established cultural relationships to it. Such effect EGLE determined, would further infringe on statutory public trust rights to navigate and fish. Lastly, it found North Shores had feasible and prudent alternatives which would mitigate or eliminate the adverse effects posed by its project.
The Army Corps and EGLE’s denial can be appealed in accordance with governing procedures. It is evident this disputed project (in its entirety), is far from concluded. In Coastal Alliance’s lawsuit, the Michigan Supreme Court found Coastal Alliance had standing to sue and remanded the case back to circuit court. At a subsequent time, the circuit court ordered Saugatuck Township to review additional evidence over the proposed project. As such, local zoning hearings are to occur in May 2024.
If you have questions about zoning and/or environmental regulations as it concerns property in the State of Michigan, please do not hesitate to contact one of the experienced land use/zoning professionals at Dalton & Tomich, PLC.
