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National Wildlife Federation questions MDEQ on Mt. Bohemia document
By Jane Reyer, National Wildlife Federation
February 5, 2002
Groundwater Program Section
Waste Management Division
Department of Environmental Quality
P.O. Box 30241
Lansing, Michigan 48909
Marquette District Office
Waste Management Division
Department of Environmental Quality
1990 U.S. 41 South
Marquette, Michigan 49855
Dear Sir or Madam,
Please accept these comments from the National Wildlife Federation (NWF) in
response to the public notice of the proposed permit for wastewater discharge
from the Mt. Bohemia Ski Hill in Keweenaw County. NWF represents four million
members and supporters devoted to the protection of wildlife, people and wild
places. From our Great Lakes office in Ann Arbor, we pursue NWF's mission in and
for the Great Lakes basin, which includes a special project to protect and
restore Lake Superior and the waters and ecosystems of the Lake Superior Basin.
We are concerned about the potential localized impacts of the Mt. Bohemia
development and septic system on Lac La Belle.
Just as importantly, we are concerned about what MDEQ's acceptance of
applicant Black Bear, Inc.'s antidegradation demonstration says about MDEQ's
regard for its own antidegradation regulations. Black Bear's Rule 1098
Demonstration presents conclusive statements about the Mt. Bohemia Ski Hill's
importance to the community without any supporting information whatsoever. If
this is all that is needed to get around requirements that additional pollutant
loadings to high quality waters must provide some important societal benefit,
that requirement might as well not exist.
The antidegradation regulations state:
Where, for individual pollutants, the quality of the waters is better than
the water quality standards prescribed by these rules, that water shall be
considered high quality and that quality shall be maintained and protected
unless allowing lower water quality is necessary to accommodate important
economic or social development in the area in which the waters are located. For
high quality waters, no action resulting in the lowering of water quality shall
occur unless the provisions of this rule have been complied with.
Mich. Admin. Rule 323.1098(3). Lac La Belle is clearly a "high quality
water" for phosphorous, based on MDEQ data. See Lac La Belle Fact Sheet,
January 2002.
State regulations designed to protect high quality waters
The application of the above provision is not limited to the
"significant" lowering of water quality. Any lowering of water quality
must meet this standard. Many of Michigan's waters, while meeting water quality
standards, are not nearly as clean and free of pollutants as they would be
without anthropogenic inputs. For the most part, these waters are not pristine
because of the cumulative impact of small sources like the septic system at
issue here. The above regulation is designed to keep high quality waters from
slowly deteriorating due to the cumulative addition of relatively low amounts of
pollutants from developments like the Mt. Bohemia Ski Hill. According to MDEQ's
Lac La Belle Fact Sheet, the Mt. Bohemia septic system could increase
phosphorous loading to Lac La Belle by 2.3%. This is precisely the type of
small, incremental lowering of water quality that the above regulation was
intended to guard against.
Furthermore, MDEQ appears to have done no analysis of the potential localized
impacts of discharge from Mt. Bohemia. Water quality in Lac La Belle is most
like to be impacted in the area closest to the Ski Hill, a factor that is not
discussed in the water quality analysis.
MDEQ also appears not to have considered the potential for seasonal impacts
on water quality. In response to Black Bear's initial request to discharge 8,500
gallons of wastewater per day and 3,102,500 gallons per year, MDEQ required
Black Bear to take one of several options, reported in a Response to Comments
document as "revising the annual wastewater flow discharged to the
environment, providing pre-treatment and phosphorous removal, demonstrating
phosphorous removal capabilities of the soils present at the site, or a
combination of these removal techniques." Black Bear chose to revise its
annual wastewater flow discharged to the environment. MDEQ's acceptance of this
revision takes no account of the fact that during several months of the year,
phosphorous will still be discharged at a level that MDEQ found unacceptable if
it continued throughout the year. It thus seems probable that water quality will
be lowered significantly for phosphorous during those months.
At any rate, MDEQ's acceptance of Black Bear's Rule 1098 Demonstration in
spite of its complete lack of substance gives the appearance that MDEQ has
ignored subsection (3) of the antidegradation rule (quoted above), and instead
has required only that Black Bear comply with subsection (4):
A person applying for a control document in a high quality water or a Lake
Superior basin - outstanding international resource water for a new or increased
loading of pollutants shall show how the discharge is exempted under subrule (8)
or (9) of this rule or provide a demonstration as follows:
(a) The applicant shall identify the social or economic development and the
benefits to the area in which the waters are located that would be foregone if
the new or increased loading of pollutants is not allowed. The factors to be
addressed may include any of the following:
(i) Employment increases.
(ii) Production level increases.
(iii) Employment reductions avoidance.
(iv) Efficiency increases.
(v) Industrial, commercial, or residential growth.
(vi) Environmental or public health problem corrections.
(vii) Economic or social benefits to the community.
Mich. Admin. Rule 323.1098(4). Given the cursory nature of Black Bear's
submission, MDEQ appears to interpret this provision to mean that any submission
by an applicant that identifies anything included on this list will satisfy the
antidegration requirement for high quality waters unless the degradation is
"significant." In other words, MDEQ appears to believe that no
standard applies to the judgment of whether a new or increased discharge should
be allowed in order to provide social or economic benefits to the area.
Black Bear's antidegradation statement ignores MDEQ standard
The standard, however, is found in subsection (3). The standard is that
"allowing lower water quality is necessary to accommodate important
economic or social development in the area in which the waters are
located." Black Bear's Rule 1098 Demonstration does not show that the
discharge from Mt. Bohemia meets this standard.
First, the standard requires that allowing lower water quality be
"necessary." In this case, it is entirely unclear that allowing this
additional phosphorous discharge is in fact necessary. The Rule 1098
Demonstration states only that treatment systems "proved too costly to
build." No information on cost is included. The Rule 1098 Demonstration
also states that "[w]ithout the proposed on-site sewage disposal system the
ski hill cannot be operated." Once again, the applicant has provided no
support for the proposition that it would be forced to close down due to
financial constraints if it was required to treat its sewage. One has to believe
that someone either is making or is planning to make a significant profit off of
this operation, or it would not have been built in the first place. If investors
are not making the profit that they hoped for, that was the risk they took in
building a ski hill in this remote location. The public should not now be asked
to pay the price in the form of lower water quality in Lac La Belle.
Second, the standard requires that lowering water quality must
"accommodate important economic or social development." Although the
factors included in Rule 1098 subsection (4) should be read as the type of
factors that might be "important," some judgment as to their
importance is clearly called for. For instance, the number of jobs provided must
be judged against the local unemployment rate, the population of the area, and
the stability and pay scale of the jobs. Black Bear's Rule 1098 Demonstration
does not mention any of these things; in fact, it does not even state how many
jobs it provides. The only thing it says in this regard is that if the ski hill
closes, "many jobs will be lost."
The other subsection (4) factor relied on by Black Bear is economic benefits
to the community. According to the Rule 1098 Demonstration, "[T]he ski hill
attracts thousands of skiers to the local area which provides income to local
hotels, restaurants, and many other businesses." No information is provided
as to how many thousands of skiers actually ski at Mt. Bohemia or more
importantly, how many have come to the area specifically because of Mt. Bohemia.
Given the ski hill's distance from any metropolitan area and the existence of
comparable facilities much closer to every metropolitan area in the Midwest, it
is difficult to believe that this number is very high.
Black Bear also states, "The ski hill already contributed in excess of
$6 million to the local economy with an additional conservative estimate of $20
million during the next 10 years." NWF requests that MDEQ verify these
figures and the underlying data and assumptions on which they are based before
accepting them as the contribution of Mt. Bohemia to the local economy. These
figures do not appear to reflect an operation that is doing so poorly it cannot
afford to treat its own sewage.
The remainder of Black Bear's one-page Rule 1098 Demonstration is simply
irrelevant. That a majority of voters accept and the commercial community
supports the ski hill does not mean that they accept or support additional
pollutant discharges to Lac La Belle. Both the economy and the lifestyle on the
Keweenaw Peninsula are dependent on the pristine quality of the water and the
environment there. Allowing piecemeal development that slowly degrades the
area's water quality can only harm what the Keweenaw now has.
In summary, NWF objects to MDEQ's acceptance of Black Bear's Rule 1098
Demonstration, and the resulting issuance of the proposed permit. At the very
least, we urge you to require a demonstration from Black Bear that meets the
requirements of your regulations. Anything less sends a message to Michigan
citizens (and developers) that you do not take your antidegradation regulations
seriously, and that they are nothing more than a formality that can be met by
the most cursory and unsupported statements.
Thank you for this opportunity to comment on the proposed permit and the Rule
1098 Demonstration. If you have any questions about these comments, please
contact me at 218/387-3377 or jreyer@boreal.org.
Sincerely,
Jane Reyer, Attorney
Lake Superior Project
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