Good news for one of Michigan’s most globally unique resources – our freshwater dune system.

You may recall developers tried to ram the road through under a creative interpretation of the Critical Dunes Act, which was weakened by our state legislature last year. MEC and dozens of others testified against the permit, which was strongly opposed by the community. It won’t be the last test of how vulnerable our once-solid laws are.

Michigan should be strengthening, not undercutting, protections for our most valuable natural assets.

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What is the “Land Plan”?

The Michigan Department of Natural Resources (DNR) is accepting public input on a draft document outlining a proposed strategy to guide how the state acquires, manages and sells public lands.

The plan is a requirement of Public Act 240, the so-called “land cap” law that was passed in 2012. It strictly limits how much acreage the DNR can own. According to the law, the acreage cap can be lifted if the DNR develops a land strategy that is approved by the legislature.

More on the Land Cap can be found here, here and here.

What is the “land strategy” process and where are we now?

The “land cap” law gave the state until October, 2014, to come up with a draft plan, but the Governor has tightened the timeframe, giving the DNR until next month (May).

The DNR assembled the current draft in a few short months, pulling in many of the department staff to help and meeting three times with a “stakeholder” advisory group that included MEC, MUCC, Parks and Recreation professionals, and representatives from timber, oil and gas industries.

The DNR is currently presenting the draft plan at regional meetings around the state and in focus groups with local and regional economic development professionals and key leaders. The schedule of public meetings can be found on the DNR’s land strategy website, along with a ton of maps and background information.

In addition to the public meetings below, written comments on the draft strategy will be accepted until April 30 at: DNRlandplan@michigan.gov

Too much land?

We at MEC hear all the time from legislators who say that the DNR owns “too much land.” The primary reasoning behind this argument is that the DNR either 1) doesn’t have the money to properly care for what it has, or 2) the locals are not being compensated fairly for the land, i.e., the DNR isn’t going to allow them to develop the land and yet it’s not paying local property taxes like private landowners would.

Both arguments seem pretty flimsy to us, especially coming from the legislature (i.e., the folks who are responsible for appropriating enough money to pay the local governments their full Payments in Lieu of Taxes to replace tax revenue that otherwise might have been generated on the land, and who have cut nearly all general fund support for the DNR, forcing them into a “pay to play” model that too often favors revenue-generating activities over good natural resource policy).

Accurate or not, those two arguments were the driving forces behind the draft land strategy that’s currently out for review. But more importantly, we think both questions miss the point – why does the DNR own land?

What are we talking about when we say “public land?”

There are lots of different owners of “public land” in Michigan, from your local parks department to the National Park Service. But the conversation in Michigan right now is all about the DNR, which currently “owns” about 4.6 million acres of land.

The DNR has about 100 State Parks catering to campers, swimmers and travelers, and various game areas and recreation areas for hiking, biking and hunting among other activities. But by a long shot the vast majority of DNR land (more than 3.5 million acres) is timberland, and it’s all in the northern reaches of the state. The entirety of the parks and recreation system that most of us will know and use, by contrast, amounts to about 350,000 acres—barely a tenth of the state forest system.

So in reality, the big number – 4.6 million acres — that legislators like to throw around doesn’t tell the true story.

State forests are managed primarily for the benefit of the wood products industry.  The bulk of that land came into state control through tax reversion in the early 1900s after it was logged, burned and essentially abandoned by the private sector. Michigan became one of the nation’s foremost conservation leaders by thoughtfully and carefully reforesting and stewarding this massive resource for the last 100 years. Locals who complain about their reduced tax revenue rarely consider that they weren’t getting taxes at all when that “waste” land fell into the DNR’s lap 100 years ago because no one wanted anything to do with it.

And despite reports to the contrary, the timber industry really likes that the state owns and manages timberland. The DNR does a good job of putting foresters, wildlife biologists and other experts in the field every day to mark trees for harvest, to ensure the forest is healthy and productive, and to do all the other things that small, private forest owners just don’t and can’t do. (In fact, the state is creating new incentive programs right now in hopes of encouraging even a few more small, private forestland owners to put their trees up for sale—something the DNR reinvests between $30-$40 million doing every year, to the great benefit of the wood products industry)

On the other side—in the fraction of state land owned and managed primarily for recreation—the story is different. There’s no unified group advocating for recreation. It’s every lone birdwatcher, mountain biker, hiker, kayaker and family camping tripper that enjoys and appreciates the assets.

What these mostly low-intensity recreational users have is the Michigan Natural Resources Trust Fund (MNRTF), which was established by voters in the 1970s and provides funds to the state and local governments to buy recreational land and develop recreational infrastructure (funded from royalties and payments from oil and gas).

And that fund has taken a beating in the legislature lately. Why? Because when it filled up its savings account at $500 million dollars in recent years, it became the pot o’ gold that all the legislators want to raid in order to pay for other things on their long priority lists. And if they can convince the public that the state “has enough public land” then they can steal it.

But in reality, MNRTF land purchases are miniscule compared to the vast bulk of state forests owned and managed by the DNR. Most Trust Fund acquisitions are little pieces of land that are key trail connections, or small but beautiful coastal dunes, or “inholdings” of private land that come up for sale inside or adjacent to a recreation area, or new ball diamonds at your city park. They don’t and never will add up to a substantial land base compared to the state forest system.

For comparison, take a look at Grand Haven State Park on Michigan’s West Coast. It attracts more than a million visitors every year, has been listed on “best beaches in the US” lists . . . and it occupies a grand total of 48 acres. Granted, it’s hard to keep track of numbers this small, but I think that’s 0.00097 percent of Michigan DNR’s total land base.

So when legislators try to say the “state owns too much land,” and point to that big number – 4.6 million acres—they really, really don’t want you to look to closely at what’s inside that total. They just want you to agree that state has enough, and hand over the keys to the MNRTF treasure chest.

Which brings us back to the DNR Land Strategy.

The draft strategy, currently out for public comment, is supposed to do a lot of things, but mostly it needs to justify, in the Governor’s terms, ““why we have [land], what we’re doing with it and where it’s going in the future, and how we’re the best stewards of it. It’s time to step back and come up with a strategic plan for public lands in the state of Michigan.”

Right now, the draft calls for:

• More public access opportunities on lakes rivers
• More blocks of public land nearer to the state’s cities;
• Reviewing for potential “disposal” approximately 240,000 acres of DNR-managed public lands that are smaller in size and/or disconnected from other larger state ownership blocks.
• More timber sales and more mineral, oil and gas leasing on state land

What the strategy doesn’t really do, and needs to do, is help Michigan’s leaders understand one key thing: we don’t own too much land. We own a lot of some land that serves some very key industries in some places, and very little land that serves the rest of the recreating populace in the other places, and we certainly don’t have too much of everything.

What does MEC think of the draft Land Strategy today?

In our read, the plan has a lot of good things. Here are a few obvious hits:

• Increase by 25% amount of land available for public recreation with an emphasis on creating more recreational access for people in the southern part of the state, especially around our cities. No, not everyone can live in Traverse City, but everyone should get the chance to feel like they do when it comes to nearby lakes, forests and recreational opportunities.
• Getting more access to our waterways – Michigan’s Great Lakes and inland waters are our calling card in the world and need to take center stage in more public land conversations.
• Connecting the concept of public recreational land to regional economic development strategies. When Michigan starts to protect and promote its outdoor assets as a vital part of its work to attract young people, creative class workers and high tech companies, we’ll be in a better place environmentally and economically (see The Great Waters or The Wilds of Michigan initiatives in the Upper Peninsula for some of the best examples of communities understanding, protecting and promoting their natural assets as centerpieces of a New Economy identity)

But it also misses the mark in some areas, and likely fails to meet the demands the legislature laid out in its PA 240. Here’s our read on a few misses:

• Criteria for decision-making, especially for what review criteria will be used to decide what land to sell and buy, is totally missing. The plan talks a lot about selling land and consolidating boundaries and staying focused on securing “high-value recreational land” but none of those are defined; most are put off to an internal DNR process to be developed later. When it comes to selling public land, the DNR needs to have a really well thought-out rationale and it needs public buy-in. And in order to get this cap lifted, we need a plan that the legislature will approve, which means concrete criteria they can understand.

• Land is treated in economic terms (timber harvest, mineral leases) but broader benefits are largely ignored. What value do we put on the role of public land in curbing sprawl, or protecting groundwater recharge areas, or managing stormwater runoff, or preventing development of iconic sand dunes? What value is a healthy, resilient forest that survives the next invasive species? The State of New York, for example, owns much larger amounts of “public” land than Michigan, but it’s mostly held to ensure safe drinking water in perpetuity for the residents of New York City. Many of these “ecosystem services” are critical to Michigan’s future, and make good economic sense. But these other “public land” benefits are not considered in this draft plan.

• We need stronger goals for things that are simply good policy, such as our role as stewards of natural diversity. Avoiding a negative outcome, such as “Preventing corrective action requests in meeting state forest certification of maintaining biodiversity” is not a good enough goal for something that should Michigan should be embracing vigorously and positively, in the tradition of our conservation forbearers like P.S. Lovejoy, Genevieve Gillette and P.J. Hoffmaster.

• The draft strategy doesn’t really provide a sense of how Michigan’s public land offerings truly compare to other states. Michigan may have more state-owned timberland than other states, but there’s less land owned and managed for recreation. We need to start finding more creative ways to crunch the numbers within the 4.6 million acres. For example, how much public land offers great hiking, mountain biking or kayaking within a 40 minute drive of downtown Denver, Colorado (a state that attracts talented young entrepreneurs by the busload)? How does that number compare to Downtown Detroit? I put this report about the economic impacts of public lands out West into the hands of DNR Director Keith Creagh (twice actually) because it suggests a completely different way of understanding and valuing public land, and I’m hoping he’s reading it. You should, too.

• Metrics are a challenge for the DNR. The data that we have about how people use, value and benefit from public lands is sketchy at best. The data that we do have is dominated by activities that require licenses or permits – a product of the legislature cutting general fund support for DNR and pushing everyone into a “pay to play” model. That’s why you see much more focus in this report, and others, on ORVs, snowmobiles, hunters, mineral leases and timber harvests than on other uses, such as hiking, wildlife viewing or “dispersed” backcountry camping. Tracking, surveying and articulating the impact of all users is going to be a real challenge going forward because the political pendulum swings toward the activities, amenities and assets that can show a clear economic or social benefit – and we’re not tracking big components of the outdoor community at all.

4.6 million is a big number. But it’s a number that hides the local story of your experiences and the places that matter most to you, the “general” recreational enjoyer of public land – the day hikers, bikers, the trail runners, nature lovers, mushroom hunters. There are scores of you out there, but mostly we don’t know how to estimate your impact – economic or otherwise – on the demand for public land in Michigan. We need you to pay attention. Yours are the numbers that will help the DNR make sense of the “land cap” fight – and understand what we’re really talking about when we talk about public land.

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The Land Cap Law

PA 240 of 2011 states that:

By October 1, 2014, the department shall develop a written strategic plan to guide the acquisition and disposition of state lands managed by the department, submit the plan to the senate and house committees with primary responsibility for natural resources and outdoor recreation and the corresponding appropriation subcommittees, and post the plan on the department’s website. In developing the plan, the department shall solicit input from the public and local units of government.  The strategic plan shall do all of the following:

a)      Divide this state into regions.

b)      Identify lands managed by the department in each region.

c)      Set forth for each region measurable strategic performance goals with respect to all of the following for land managed by the department:

• Maximizing availability of points of access to the land and to bodies of water on or adjacent to the land.
• Maximizing outdoor recreation opportunities.
• Forests.
• Wildlife and fisheries.

d)      To assist in achieving the goals set forth in the strategic plan, identify all of the following:

• Land to be acquired.
• Land to be disposed of.
• Plans for natural resource management.

e)      To the extent feasible, identify public lands in each region that are not managed by the department but affect the achievement of the goals set forth in the strategic plan.

f)        Identify ways that the department can better coordinate the achievement of the goals set forth in the strategic plan pursuant to subdivision (c), recognizing that public lands are subject to multiple uses and both motorized and nonmotorized uses.

Before May 1, 2015, the department shall not acquire surface rights to land if the department owns, or as a result of the acquisition will own, the surface rights to more than 4,626,000 acres of land.

Beginning May 1, 2015, the department shall not acquire surface rights to land north of the Mason-Arenac line if the department owns, or as a result of the acquisition will own, the surface rights to more than 3,910,000 acres of land north of the Mason-Arenac line. It is the intention of the legislature, if the legislature approves the strategic plan, to amend this section to remove the limitations.

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The goal was protection of the state’s most unique and fragile coastal sand dunes – rare and globally significant landscapes that are among Michigan’s most recognizable and defining natural features.

Legal safeguards for those dunes were gouged last year by ill-advised legislation that undermined chunks of the state’s Critical Dunes act. The legislature and Governor Snyder severed protections that allow millions of Michiganders and visitors to enjoy these marvels at the behest of a handful of builders and property owners who found the land’s unusual and historic contours, well … troublesome.

When the pro-development lobby, led by the Michigan Association of Homebuilders and Michigan Association of Realtors, launched their fast-moving assault on Michigan’s landmark dune protection law, one of their stated goals was to eliminate the DEQ’s legal oversight of driveway construction in Michigan’s protected Critical Dunes.  In the Realtors’ terms, “Efforts as simple as permitting driveway access to an owner’s property have been stifled due to a lack of clarity on how the law should be applied.”

Gov. Snyder signed the legislation back in early 2012. For background read our analyses here and here.

Unfortunately, they won that fight and passed their law. However, those driveways are quickly proving to be anything but the “simple” issue the lobbyists wanted everyone to believe.

First test

The new provisions are being put to the test with an application to the DEQ for a proposed residential development in the coastal dune area in White River Township, outside Montague. It will be one of the first high-profile tests of the state’s revised law. And the prospects are scary.

That key provision of the 2012 dune law change – the one most strongly supported by the pro-development lobby—essentially eliminated consideration of the potential negative environmental impacts of driveways in the dunes. It is at the heart of this controversial proposal.

The Bro G Land Company proposal includes an extensive access road—nearly a quarter of a mile long—through a township-owned dunes preserve along a supposed “easement.”  A critical consideration of this permit and potentially other permits under consideration is the definition of “driveway” versus an easement.  A review of the Bro G permit application and the revised law raises serious questions regarding the adequacy of the application and scope of the new law.

Below are MEC’s preliminary observations regarding the permit:

1) The application improperly treats a driveway and an easement access road as the same thing.  This is not the case.  The statute clearly states that a driveway runs only “from a road or easement” to the principal building.  It also states that the driveway must be “privately owned.” MCLA 324.35311a(3) states:

(3) As used in this section, “driveway” means a privately owned, constructed, and maintained vehicular access from a road or easement serving the property to the principal building or accessory buildings, that is paved, graveled, or otherwise improved for vehicular access, 16 feet wide or narrower in the sole discretion of the applicant or owner, and may include, in the sole discretion of the applicant or owner, a shared driveway.

This reading of the statute is further reinforced by section (1)(a) which states the applicant should review other alternatives for a driveway which minimize impacts within “the lot of record.”

Why does it matter? Because the builders’ lobby made driveways essentially immune from DEQ oversight under the new law, permitting them “by right” if an engineer signs off on the proposal.

But an easement access road is not a driveway, and therefore all building activities other than a true driveway are subject to dune-friendly restrictions such as limitations on construction that would occur on steep slopes of ever-shifting sand.  The access road as set forth in the application crosses slopes that would exceed the limits set forth in the statute without a variance or special exception (MCLA 324.35316).

2) The permit application fails to establish a legal basis for the easement on which the access road is proposed. The applicant states they are the sole owner of “all property on which the project is to be constructed.”  This is clearly not true.

The map attached to the permit shows the access road slices through the entire township preserve.  If the applicant had properly disclosed the township as the owner of the property over which the easement in question crossed, they would need authorization for the road from the township.

3)   The application fails to request any special exception pursuant to MCLA 324.35317, and thus is incomplete.  Such as provision would be required due to the steep slopes and 83 trees that could be bulldozed under this application.

This permit is an important test of the new law Michigan will have to use going forward. By our read, this application asks the state to step into the dangerous position of being the arbiter of disputes between different landowners regarding the nature of easements.

Easements are governed by property law and tend to be case-by-case situations controlled by the language of the easement and the circumstances under which it was granted.  In many cases courts are called on to decide the nature of easements and the activities that are allowed to take place within them.  Just because a party holds an easement does not give them an automatic right to pave the easement or make other alteration to the property owned by others.

In this case, the threat is to the integrity of a beautiful township dune sanctuary that has been carefully preserved and stewarded by thoughtful leaders, and which has been supported by public money from the Michigan Natural Resources Trust Fund.

Big Picture

The bigger picture question is whether we – as stewards of rare and globally significant freshwater dunes systems – are willing to allow the erosion of key laws that protect this unique Pure Michigan resource.

Of course a driveway on very steep slope will destabilize the already very active dunes! The permit assumes that no destabilization will occur despite plowing a road across very steep and shifting sand slopes and removing grass, shrubs and up to 83 trees. It’s ludicrous.

As one local Realtor put it in an article in New Buffalo’s Harbor Country News, under the new law, “…you do not have to concern yourself with … all the ways a permit can be denied. A driveway can be constructed on any slopes using pretty much whatever the engineer decides to use…” to minimize damage. Got that? The builders’ own engineer decides how to build a road through a public sanctuary. Not dune experts. Not state regulators. Not local governments. Not the public.

This permit application asks the DEQ staff to step into the role of elected judges make determinations regarding property rights between different owners.  This is not the role of agency staff; they should instruct the applicant to resolve their difference (through negotiations or in the courts first) and then proceed with their permit application.

A copy of the permit can be downloaded here.

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A public hearing on the application will take place Monday, April 15 at 6 p.m. at Montague High School, 4900 Stanton Blvd, Montague, MI.

Comments on the application may be sent to Nancy Cuncannon cuncannann@michigan.gov
USPS: Department of Environmental Quality, State Office Building, 5th Floor, 350 Ottawa Ave, Grand Rapids, MI 49009-5205

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What? Doesn't everyone read MEC's newsletter??

It was just an innocuous brief in our winter newsletter:

“Governor Rick Snyder reads each issue of the Michigan Environmental Report cover-to-cover. At least that’s what he told MEC President Chris Kolb during an informal chat at a University of Michigan basketball game recently. Kolb suggested – and the governor denied – that Snyder’s picture on the front page of a recent edition might have had something to do with his interest in the newsletter! Hey, governor – if you’re reading this, drop use a line!”

On Tuesday he did, dialing the MEC office and speaking briefly to  Kolb.

“’You said to drop you a line, so I am,’”  Kolb recalled Snyder telling him. “Never in a million years did I think the Governor would actually call, if I had only known it was that easy….!”

He said he doesn’t always get to read it cover-to-cover but he does try to read as much as he can, and zeros in on the articles that interest him.

We’re thinking of pushing our luck a little further next issue….there are a couple of bills we’d like him to veto, some energy standards that need upgrading, some adjustments to the state budget…. …..governor? Governor? Still there? Governor? Hello?

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This bill modifies Michigan’s Natural Resources and Environmental Protection Act to explicitly prohibit state agencies from designating or classifying an area of land for the purpose of achieving or maintaining biological diversity.  In addition, the bill redefines the goals of biological conservation to be more aligned with managing public lands for economic interests, eliminates text about managing forests for sustainability, and eliminates text saying that biodiversity loss is primarily caused by humans.

You can read more about this terrible legislation in previous Michigan Distilled entries.

A petition against SB 78 has been formed that we’d like to call your attention to. Please consider reading the bill and, if you are so inclined, consider adding your name to the petition.

MEC

Maria and Brisa

“Your daughter is lead-poisoned,” said a health worker who showed up on Maria Ellena Gonzalez’ doorstep nine years ago. Gonzalez had no idea what to think. She does now.

Brisa Gonzalez, then 2 years old, was eating lead paint chips and inhaling lead dust in the Grand Rapids home the family recently moved into.  Because lead paint tastes sweet, the toddler had been seeking out the paint chips in the home.  “She was eating it,” said her mother.

The early intervention from the Kent County Health Department, the State of Michigan and federally supported lead prevention programs caught Brisa’s poisoning early. Not all Michigan kids are so lucky.

Close to 5,700 children in Michigan were above the Centers for Disease Control recommended action level for lead poisoning in 2012, according to state officials. Most of those children probably ingested the poison from old paint applied prior to the ban on lead in paint in 1978.  Also troubling, less than 60% of at-risk kids who should be tested for lead poisoning actually are, so there are likely thousands more undiagnosed cases.

Lead paint poisoning is permanent and irreversible.  It lowers IQ, causes restlessness and hyperactivity, is linked to lower graduation rates and poor MEAP testing, and is shown to cause aggressive behavior and increase incarceration rates.  In the body, lead damages the heart, liver, bones, brain, reproductive system and even hearing.  At very high levels, lead poisoning can cause death.

To help make sure no more kids are poisoned by lead in Michigan, Gonzalez and her daughter Brisa were part of the March 6 Lead Education Day at the State Capitol, coordinated by the Michigan Alliance for Lead Safe Housing and led by the Michigan Environmental Council. Several dozen advocates, parents, policymakers, lead contractors and health experts met with legislators and staffers to outline the problem and urge forward-thinking solutions.

Unlike many public health issues where solutions are elusive, lead poisoning prevention is straightforward and solvable.  Lead causes lead poisoning, it’s cut and dried.  With a price tag of $4.85 billion a year in lost earnings from lead poisoning, this is both a moral and economic issue for our state.

“We know exactly how children are harmed – almost exclusively from old paint that is peeling, flaking or has turned to dust during renovations,” said Tina Reynolds, MEC’s health policy director. “Removing or encapsulating the old paint solves the problem and keeps children safe. It’s not rocket science, it’s simply a matter of money and willpower.”

Both money in the budget for programs like the ones that saved Brisa – and willpower from lawmakers to protect Michigan’s children – were on the “ask” list during the education day.  Michigan has boots on the ground now to combat this problem.  Foundations, donors, community partners, health departments, service organizations and the Department of Community Health have been at work in our hardest hit communities.

As federal funding begins to dry up however, many local service providers are closing their doors leaving families in jeopardy.  State money for lead poisoning prevention and abatement have been slim to none for years now.  Michigan has relied on the federal government for funding and the free ride is over.

This is the message that was shared with 24 key legislators on March 6^th.  Coalition members got a good response from policy makers and are hopeful, but will continue to press the case.

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It was approved on what appeared to be a strict party-line vote of 26-11.

Notably, Sen. Rebekah Warren took a courageous stand against SB 78 on the Senate Floor, arguing eloquently on behalf of Michigan’s history of science-based natural resource management. You can watch her statement here: http://www.youtube.com/watch?v=bYkQvY3i0a8

She also offered several helpful amendments including language that would have reinstated the original, science-based definition of biodiversity; another to keep original language saying that human activity is the primary cause of biodiversity loss; and a substitute bill that would have ensured humans could access any designated Biodiversity Stewardship Areas — an attempt to address an unfounded concern about “locking up land’ often reiterated by the bill’s Republican sponsor. All amendments were rejected on what again appeared to be party-line votes.

The fight for biodiversity will next move to the House Natural Resources Committee.

We will alert you when a bill is up for consideration there, but feel free to reach out to House Committee members about this issue now. They are:

• Andrea LaFontaine (R) Committee Chair, 32nd District: (517) 373-8931, AndreaLaFontaine@house.mi.gov
• Bruce Rendon (R) Majority Vice-Chair, 103rd District: (517) 373-3817, BruceRendon@house.mi.gov
• Ken Goike (R) 33rd District: (517) 373-0820, KenGoike@house.mi.gov
• Joel Johnson (R) 97th District:(517) 373-8962, JoelJohnson@house.mi.gov
• Ed McBroom (R) 108th District: (517) 373-0156, EdMcBroom@house.mi.gov
• Roger Victory (R) 88th District: (517) 373-1830, RogerVictory@house.mi.gov
• Charles Smiley (D) Minority Vice-Chair, 50th District: (517) 373-3906, charlessmiley@house.mi.gov
• Scott Dianda (D) 110th District: (517) 373-0850, scottdianda@house.mi.gov
• John Kivela (D) 109th District: (517) 373-0498, johnkivela@house.mi.gov

For complete background on this issue, we recommend the following links:

“State Senate bill puts forests at risk of disease, pests, environmentalists say.” Detroit Free Press.

“Legislation redefining conservation puts Michigan’s diversity of nature at risk:  MEC Commentary.” Detroit Free Press

“Biodiversity: Key to healthy forests, yet target of terrible proposed law.” MEC blog Michigan Distilled

“Anti-biodiversity bill hearings continue.” MEC blog Michigan Distilled

Please keep the pressure on! Consider testifying in person at the committee hearing (note earlier start time, especially if you attended last week but weren’t give time to talk), and please contact legislators and encourage others to contact those listed below. It’s time to let the committee members know where you stand!

Committee Hearing Time and Location:

Please call and email the following:

What is SB 78? Confusion With DNR Biodiversity Stewardship Areas (BSA) Program

At the recent committee hearing and in the media, the lead sponsor and author of SB 78, Sen. Tom Casperson, has repeatedly claimed that the intent of his legislation is to stop implementation of a very specific program — the Department of Natural Resource’s (DNR) proposed “Living Legacies” (often referred to as the Biodiversity Stewardship Area, or “BSA”) program.

While this may the sponsor’s intent, we as advocates and concerned citizens must deal with the actual bill language that has been introduced.

The bill being voted on would completely redefine “conservation,” the concept of “biodiversity,” and restrict or remove the ability of the DNR to even consider “biodiversity” or “restoration” when managing state forests. It is not NOT SPECIFIC to the DNR’s BSA/Living Legacies program, but a set of sweeping changes to the scientific principles that guide all state land management. Specifically, it amends Part 355 (Biological Diversity Conservation) and Part 525 (Sustainable Forestry on State Forestlands) of the Natural Resources and Environmental Protection Act (Act 451 of 1994 to do the following:

• Revise the definition of “conservation” with regard to biological diversity, removing key provisions regarding restoration, distribution and the “continued existence” of native species and communities.
• Prohibit the Department of Natural Resources (DNR) and the Natural Resources Commission from promulgating or enforcing a rule or an order that designates or classifies an area of land specifically for the purpose of achieving or maintaining biological diversity, and provide that no other state agency would be required to do so either (the only portion specifically targeting the proposed BSA program).
• Delete the conservation of biological diversity from the DNR’s duties regarding forest management, and require the Department to balance its management activities with economic values.
• Eliminate a requirement that the DNR manage forests in a manner that promotes restoration.
• Delete a legislative finding that most losses of biological diversity are the result of human activity.
• Repeal several sections that articulate the purpose of the original law, specifically deleting references to the Joint Legislative Working Committee on Biological Diversity (dissolved on December 30, 1995).

In addition to undermining Michigan’s commitment to common sense, science-based natural resources management, MEC analysis suggests the legislation may also endanger other core DNR programs, including our forest certification efforts, and put at risk areas that have long enabled people to see and appreciate Michigan’s amazing natural assets. Places such as Hartwick Pines, Haven Hill and others are managed and designated at least in part based on biodiversity values, but are also popular places for wildlife viewing and as places to experience Michigan’s history and cultural icons.

Please see our previous blog post to read MEC’s full commentary on these bills.

Notably, if the bill was more narrowly targeted to deal with the provisions of the BSA program, MEC would be happy to engage in a thorough review and discussion to ensure that program serves the people of Michigan as well as its natural resource goals. Until then, we must strongly and adamantly oppose SB 78 as written.

Details and information on the DNR Living Legacies/BSA program can be found on the DNR website here: http://www.michigan.gov/dnr/0,1607,7-153-30301_30505_57365–-,00.html or by doing an internet search for “Michigan Living Legacies.”

A LAST NOTE: Those who attended the hearing may recall Casperson called out (as a case study of the kind of “departmental overreach” he is targeting) a certain 21 acres in  that were reportedly being “set aside for no human contact” due to the presence of a “1,000 year old tree” and some rare snails. In truth, the trees and snails in question were located on the face of a vertical limestone cliff at the park. The Land Use ORder was sought by the DNR to clarify their legal authority to keep people from climbing the vertical cliffs, where they could endanger themselves (and yes, the old cedar trees clinging tenaciously to the cliffs). There are still trails open for hiking at both the top and bottom of the cliffs. Despite the purpose being clearly stated as to “prohibit entry to the limestone cliffs,” this fact was apparently not clear enough in the draft version of the land use order Casperson referenced in committee (viewable here: http://www.michigan.gov/documents/dnr/LUOD_No._04_of_2013_406786_7.pdf.) The revised land use order can be found here: http://www.michigan.gov/documents/dnr/LUOD_No._04_of_2013_406786_7.pdf.

The findings will be assembled and delivered to policy makers by the end of this year as the basis for legislative action in 2014.

The last forum – in Traverse City – convenes, fittingly, on April 22. That’s Earth Day, the day we celebrate the planet and recommit ourselves to protecting it. What better symbolism?

A little background.

In 2008 Michigan passed energy efficiency and renewable energy laws that require:

– Utilities to demonstrate efficiency gains equal to 1% of sales to customers annually;

– That 10% of Michigan’s electricity generation come from clean, renewable sources by 2015.

Those programs are working. They are meeting energy needs below the cost of the most common alternative, coal plants; and at roughly the same cost as natural gas. The price of coal is rising. The price of natural gas, while at historic lows today, is likely to fluctuate. The price of renewable systems, particularly wind in Michigan, is dropping. And renewable contracts bring low cost plus the added benefit of 20-year guarantees for ratepayers – a measure of certainty impossible with coal and natural gas.

The cost of efficiency measures is dramatically lower than all of the alternatives, saving ratepayers $3.55 for every $1 invested in the program according to the Michigan Public Service Commission.

None of this has resulted in ANY disruption to the electricity grid, or the need for the exorbitantly expensive “backup” power that opponents warned darkly of five years ago. Nor will it create problems at the percentages of renewable energy we’re talking about (dozens of other states have renewable generation targets higher than ours).

Clean energy systems are also job creators. Especially for medium and small manufacturers, installation companies and maintenance crews that are part of the backbone of Michigan’s economy.

Governor Snyder has called for testimony at these forums to be fact-finding endeavors. And we’ll likely hear all manner of “fact” to be tossed about.

The Michigan Environmental Council has been assembling and critically examining data about Michigan’s energy policy for more than a decade.  We were joint architects of the 2008 energy laws. We bring hard data to the table with studies on costs, job creation and public health. We regularly intervene to protect residential ratepayers during proceedings at the Michigan Public Service Commission, helping keep utility bills in check.

We think we have a handle on the facts that are backed by sound evidence and serious research.

For example, not long ago we engaged scientists to study healthcare costs related to pollution from burning coal. Using established methods, they found that Michiganders spend a staggering $1.5 billion each year just in costs and damages from pollution spewed by the state’s nine of our oldest coal-fired boilers. Those are hidden costs. Embedded in our health care premiums, emergency room visits and Medicaid costs, among others. They should be part of this discussion.

And we have an idea whose “facts” aren’t facts at all. We’ll be calling out those poseurs should they attempt to poison the process with inaccurate and self-serving information.

We are buoyed by Gov. Snyder’s commitment to this months-long fact-finding process. It should show conclusively that substantial improvements to Michigan’s energy efficiency and renewable energy standards are good for ratepayers, public health and our environment. The governor has a lot of smart people on his staff. And we trust that now they’ve turned their relentless action on energy issues, they’ll reach the same conclusion.

We’ll be at the forums, and we hope you will too.

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MEC opposes this ill-advised legislation, and has provided the following testimony to the Senate Natural Resources Committee.

We’ve asked supporters to call or email the bill’s sponsors and let them know you support managing state lands for biodiversity. Please consider joining the effort!

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 Sponsor, Senator Tom Casperson: Call: 517-373-7840, Email: SenTCasperson@senate.michigan.gov:

Other bill sponsors:

Patrick Colbeck: 517-373-7350, SenPColbeck@senate.michigan.gov
Arlan Meekhof: 517-373-6920, SenAMeekhof@senate.michigan.gov
David Robertson: 517-373-1636, SenDRobertson@senate.michigan.gov
Michael Green: 517-373-1777, SenMGreen@senate.michigan.gov
Darwin Booher: 517-373-1725, SenDBooher@senate.michigan.gov
Howard Walker: 517-373-2413 SenHWalker@senate.michigan.gov

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Comments on Senate Bill 78 – Michigan Environmental Council Opposes

 What Is Senate Bill 78?

SB 78 would amend the Natural Resources and Environmental Protection Act (Act 451 of 1994). Specifically, the bill would amend PART 355 (Biological Diversity Conservation) and Part 525 (Sustainable Forestry on State Forestlands) to do the following:

• Revise the definition of “conservation” with regard to biological diversity, removing key provisions regarding restoration, distribution and the “continued existence” of native species and communities.

•  Prohibit the Department of Natural Resources (DNR) and the Natural Resources Commission from promulgating or enforcing a rule or an order that designates or classifies an area of land specifically for the purpose of achieving or maintaining biological diversity, and provide that no other state agency would be required to do so either.

• Delete the conservation of biological diversity from the DNR’s duties regarding forest management, and require the Department to balance its management activities with economic values.

• Eliminate a requirement that the DNR manage forests in a manner that promotes restoration.

• Delete a legislative finding that most losses of biological diversity are the result of human activity.

The bill also would repeal several sections pertaining to the Joint Legislative Working Committee on Biological Diversity (which was dissolved on December 30, 1995).

Why MEC Opposes SB 78

We believe that this proposed legislative is fundamentally flawed in its conception and approach. We oppose the proposed revisions and stand behind PART 355 (Biological Diversity Conservation) and Part 525 (Sustainable Forestry on State Forestlands) as they currently exist in Michigan law.

Michigan is blessed with a wide variety of native plant and animal species and communities. These are an asset that must be actively protected with every tool available. The stewardship of threatened and endangered species, the protection of functioning natural communities, and the restoration of native plants and wildlife are concepts that date back more than 100 years in Michigan.

The DNR is right and justified in deploying the best scientific and professional expertise and strategies to ensure “the continued existence and normal functioning of native species and communities” in Michigan, i.e., in undertaking active biological conservation or managing for biodiversity.

Protecting, enhancing, and restoring Michigan’s biological diversity (including ecosystem, species, and genetic diversity) is a completely logical and scientifically sound management tool. It protects the natural communities and native plants and animals of Michigan, and ensures a healthy and robust natural system for this and future generations. Biological diversity is a fundamental part of a mission that lies at the foundation of Michigan’s long tradition of strong and responsible public land management. Managing lands for biodiversity and ecosystem health and genetic resilience ensures that our forests can survive new invasive species, such as emerald ash borer, and our fisheries can withstand diseases such as VHS.

Biodiversity, as a management tool for enhancing and restoring Michigan’s native natural ecosystems, is entirely in keeping with the idea of the Michigan’s agencies are stewards of the public trust, and the caretakers of Michigan’s abundant natural beauty and healthy ecosystems.

As such, we are opposed to SB 78 and its assumption that the perpetual survival of Michigan’ native species and natural communities (as represented by the diversity of plant, animal and genetic material managed on state lands) is not of critical importance to Michigan and its residents.  Tools such as sustainable forestry and land designation to protect vital natural features and communities are key tools in achieving the DNR’s mission and preserving our great natural resource legacy; we see no reason to eliminate them.

Why is Biodiversity Important?

A healthy and diverse representation of Michigan’s native and natural plant and animal communities provides countless social, environmental and cultural benefits to the state of Michigan.  Diverse ecosystems with a strong and healthy population of native species are more robust, more resilient in the face of natural disasters and disease, and provide for a healthy interconnected web of plants and animals.

Healthy, diverse ecosystem also provide a host of important natural functions, including air and water cycles, the creation and breakdown of natural nutrients and breakdown of pollution. Diverse natural systems might also provide important biological benefits in the future, such as food, medicine, and gene diversity.

In Michigan, our rich and diverse natural communities also drive a large recreation and tourism economy, support healthy agriculture and forestry industries, and improve our quality of life.

Tools to protect, restore and enhance those natural communities should be encouraged at all levels – state, local and private organizations and individuals. Moreover, the state agencies charged with supporting this large task should be empowered.

Specific Problems with SB 78:

 1.      Definitional Changes Remove Key Ecological Concepts. The proposed definitional changes remove at least four concepts that were central to the state’s approach to “biodiversity conservation” as articulated in the original law:

• Restoration. Restoration of biological diversity is a vital function of natural resources management in Michigan. Science tells us that simply trying to preserve what is left is not adequate to counter the many threats to native species and natural communities. Michigan should also (and has for more than a century) worked to restore and enhance native communities that are undermined by bad management or human activity, threatened by invasive species, or weakened by other factors.
• Quantity and Variety. The original law states that “as much of the variety of native species and communities as possible” should be protected, restored and enhanced. This provision should be retained, as science again tell us that diversity provides our natural communities with greater health and resilience. Also, the amazing variety of plant and animal life found in Michigan is one of our state’s greatest assets and responsibilities. It is our responsibility to identify, protect and restore examples of Michigan’s natural heritage and native diversity.
• Viability and Distribution.  The original law specifically suggests that the state should focus on “viability of populations” and ensuring that these populations be located “throughout the natural geographic distributions” of native species and communities. These are key scientific principles for ensuring a healthy ecosystem in Michigan, since small, isolated pockets of native plants or animals, cut off from their original natural “range” will never be as healthy or resilient as those that are located in a wide range and in robust numbers.
• Continued Existence and Normal Functioning of native species and communities. The law’s original intent was clearly to ensure that Michigan’s native species and communities be allowed to thrive alongside human activity. It is critical that Michigan’s leaders not forfeit this responsibility, but instead retain the provision that clarifies the ultimate goal of biological conservation or biodiversity management is to support these native species and communities in their “continued existence and normal functioning” in perpetuity, so they will always be part of Pure Michigan.

Currently the law state provides the following definitions:

324.35501(c)  “Conserve”, “conserving”, and “conservation” means  measures for maintaining natural biological diversity and measures for restoring natural biological diversity through management efforts, in order to protect, restore, and enhance as much of the variety of native species and communities as possible in quantities and distributions that provide for the continued existence and normal functioning of native species and communities, including the viability of populations throughout the natural geographic distributions of native species and communities. (emphasis added).

The proposed law would delete that definition and replace it with the following. We oppose these changes:

324.35501(B)  “CONSERVATION OF BIOLOGICAL DIVERSITY” MEANS MEASURES FOR MAINTAINING BIOLOGICAL DIVERSITY WHILE ENSURING ACCESSIBILITY, PRODUCTIVITY, AND USE OF THE NATURAL RESOURCES FOR PRESENT AND FUTURE GENERATIONS.

Note: Biological Diversity in both current and proposed law remains the same and is defined as:

324.35501(c)   Biological Diversity means the full range of variety and variability within and among living organisms and the natural associations in which they occur. Biological diversity includes ecosystem diversity, species diversity, and genetic diversity.

We feel the original language should be retained.

2.      Creates unnecessary prohibitions on the DNR and its land management tools.

The proposal bill prohibits the DNR (or other agency) from designating land for the purpose of maintaining biological diversity. The bill’s sponsor has stated in the past that his intent with this legislation is to eliminate, once and for all, the DNR’s fledgling “Living Legacies” or Biodiversity Stewardship Areas program. In doing so, SB 78 attacks instead the very idea that the state has a critical role to play in protecting and improving the state’s natural systems and native plants and animals.

Designating land for the protection of biodiversity is entirely in line with the DNR’s mission and the goals of the state of Michigan. Without targeted protection and restoration, Michigan is likely to lose many of its best and most representative native plants and natural communities. Many organization and agencies are dedicated to ensuring this does not happen, and the Michigan DNR should be able to use land designation as a tool to aid in its mission of protecting and conserving the resources of the state.

Notably, designation for biodiversity conservation purposes does not mean that land would necessarily be “hands off” or “no management,” in fact, we can find no example where that has been the case. Instead, restoring and enhancing native plant and natural communities has been more likely to require very sophisticated management and to provide more opportunities for Michigan’s residents and visitors to see and appreciate our amazing assets – places such as Hartwick Pines, Haven Hill and others are managed at least in part for their biodiversity values, but are also popular places for wildlife viewing and a chance to experience Michigan’s history and cultural icons.

Land managed for biodiversity is an asset, not a liability, and is fitting with Michigan’s long tradition of using the best of science-based approaches to land management.

The following language is proposed in SB 78. We oppose these changes:

Sec. 504. (7) THE DEPARTMENT, DIRECTOR, OR COMMISSION SHALL NOT PROMULGATE OR ENFORCE A RULE OR ISSUE OR ENFORCE AN ORDER UNDER THIS ACT THAT DESIGNATES OR CLASSIFIES AN AREA OF LAND SPECIFICALLY FOR THE PURPOSE OF ACHIEVING OR MAINTAINING BIOLOGICAL DIVERSITY, AS DEFINED IN SECTION 35501, AND SUCH A RULE OR ORDER IS VOID.

We believe this section should not be added.

 3.      Undermines DNR’s duties and risks opportunities regarding forest management.

In several sections, the proposed bill would remove biological conservation, restoration and ecosystem considerations from the DNR’s toolbox of good forest management, and insert concepts around economic return and valuation.

Habitat management, biological diversity and ecosystem considerations are fundamental tools of modern forest management, and it makes no sense to remove these from the DNR’s mission or goals as it relates to forest management. Beyond simply guiding sound land stewardship, these principles are also the foundation of the state’s investment in sustainable forestry certifications, which require plans and programs to protect biological diversity. Turning our back on these approaches now would reduce our ability to secure federal funds for programs such as Great Lakes Restoration Initiative (GLRI) and cooperative agreements for pest management (Emerald Ash Borer), Fire Management, and Private Land Stewardship programs with the US Forest Service, USDA and others.

Biodiversity is also fundamental to the state’s Forest Action Plan, which helped Michigan bring in $22 million for cooperative agreements in recent years, including $800,000 in Great Lakes Restoration Funds for five projects including Chevy in the Hole restoration efforts in Flint. Removing biodiversity as a forest management tool available to the DNR risks the state’s ability to do cooperative agreements to handle EAB, Fire Management, and Private Land stewardship programs. It would undermine our eligibility for program such as America’s Great Outdoors or other emerging programs, many of which include biological diversity as a goal.

Ignoring biodiversity, aquatic health and other key features of a healthy forest may also put the state in direct conflict with federal requirements related to threatened and endangered species. Similarly, substituting “voluntary silviculture practices” for state and federal requirements is not acceptable.

The following language is proposed in SB 78. We oppose these changes:

Sec. 52502.  (2) (iv) Plan and manage PLANNING AND MANAGING plantations in accordance with sustainable forestry principles and in a manner that complements the management of and promotes the restoration and conservation of natural forests.

Sec. 52502.  (2) (b) Conserve and protect forestland by doing all of the following:

(iii) Manage SUBJECT TO SECTION 504(7), MANAGING the quality and distribution of wildlife habitats and contribute to the conservation of biological diversity by developing and implementing stand and landscape-level CONSIDERING measures that promote habitat diversity and the conservation of forest plants and animals including aquatic flora and fauna and unique ecosystems WHILE BALANCING ECONOMIC VALUES.

Sec. 52502. (2) (b) (vi) Manage MANAGING activities in high conservation value forests by maintaining or enhancing the attributes that define such THOSE forests WHILE BALANCING ECONOMIC VALUES.

Sec. 52502. (e)(i) Require REQUIRING that forest management plans and operations comply with applicable federal and state laws.VOLUNTARY SILVICULTURAL PRACTICES.

We oppose these changes and suggest the original language be retained.

4.      Refutes clear scientific evidence

SB 78 proposes to delete a legislative finding that states most losses of biological diversity are the result of human activity. The legislature should retain the following (proposed for deletion), as there is clear scientific evidence that this is true:

Sec. 35502. The legislature finds that: (b) Most losses of biological diversity are unintended consequences of human activity.

Conclusion

 SB 78 is unnecessary and counterproductive. We oppose the proposed revisions and stand behind PART 355 (Biological Diversity Conservation) and Part 525 (Sustainable Forestry on State Forestlands) as they currently exist in Michigan law.