The following student post is by David Furman (B.S. Accounting, Oakland University, J.D., Wayne State University Law School, expected 2015). While in law school, David has clerked at a mid-sized law firm and is currently employed in the regulatory department of an international electrical transmission corporation. David is working as a student attorney this semester in the Transnational Environmental Law Cling. Also, special thanks to former Clinic student Andew Gonyea who worked on this project last semester. NS.
On September 12, 2014, the Michigan Department of Environmental Quality released a draft permit for comment regarding a controversial wastewater treatment plant to be constructed by the Cass County – Ontwa Township Wastewater System. Shortly before the draft permit was released, Save Cobus Creek, a grassroots organization of concerned citizens who opposed the construction of the plant, contacted the Great Lakes Environmental Law Center seeking assistance in challenging the draft permit. With the support of technical experts from Save Cobus Creek, the GLELCdrafted comments in opposition to the proposed plant. Download GLELC Comments - Proposed Cass Co - Ontwa Twp WWTP
The GLELC predicated their opposition to the permit on three substantive issues: (1) the potential increase in creek temperature; (2) the danger to wildlife; and (3) the applicants failure to justify an economic or social benefit within their Antidegredation Demonstration, as required by Rule 95 of the Michigan Administrative Code, MDEQ Water Quality Standards. As indicated by the application filed with the MDEQ, the proposed plant’s effluent would be discharged into Cobus Creek. Cobus Creek is a low-flow stream, the headwaters of which is located approximately one mile north of Indiana, in Ontwa Township, Michigan, flowing through Indiana for approximately seven miles, before emptying into the St. Joseph River. The proposed plant would discharge between 0.6 mgd to a maximum of 2.7 mgd. However, the flow rates of Cobus Creek vary from 2.0 mgd in September to 7.0 mgd in April. Accordingly, the proposed plant could increase Cobus Creek’s daily flow by anywhere from 33% to 135% during low flow and 9% to 39% during high flow. The increase in flow rates would likely cause erosion to Cobus Creek shoreline and streambed, as well as the undercutting of banks. Erosion and undercutting can cause an increase in water temperature, disruption of habitat, and mortality of wildlife, due to an increase in sediment transport.
An increase in water temperature is of substantial concern. Thermal pollution through degradation of water clarity poses significant risks to the aquatic environment of Cobus Creek. Cobus Creek is predominantly a cold-water creek, supporting a thriving trout population in Indiana. As creek temperature increases, cold-water species mortality rates increase. Dissolved oxygen content decreases, causing additional harm to species within the creek. As wildlife within the creek perishes, so does the wildlife that depends on the creek for sustenance. Further, as creek temperature increases, so does the risk of eutrophication. As we have seen with Lake Erie, eutrophication poses a grave danger to the ecosystem of any body of water. Ultimately, the reality of the situation is straightforward, the discharge of effluent into Cobus Creek will have substantial and lasting negative impacts on the environment in and surrounding the creek.
Further, pursuant to Rule 95 of the Michigan Administrative Code, MDEQ Water Quality Standards, an Antidegradation Demonstration must accompany an application to discharge. This demonstration must illustrate an economic or social benefit, which would outweigh the harm caused by the discharge of effluent. In Cass County - Ontwa Township’s demonstration, the applicants assert three deficient arguments: (1) the proposed draft permit will have lower effluent limits than what is currently enforced against the applicants, thereby benefitting the environment as a whole; (2) increase in employment; and (3) an ability to promote industrial growth. In response to these arguments, the GLELC provide an analysis to the MDEQ, which systematically invalidated each claim made by the applicants. Foremost, the applicants claim that the environment would benefit due to the lower limits imposed upon them is completely misleading. Currently, the applicants discharge their wastewater via pipeline to the Elkhart, Indiana, wastewater treatment plant, which then discharges into the St. Joseph River. By diverting their flow to a pristine creek, which currently experiences no effluent discharge, the environment is not benefitted. Further, The applicants claim that two permanent positions will be created by the construction of their wastewater treatment plant. However, two permanent positions do not outweigh the environmental harm that will occur to the creek from the discharge of effluent. Finally, applicant’s contention that industrial growth will occur from construction is wholly unsubstantiated and further, alarming, in that industrial customers are, in general, the worst polluters. For these reasons, the GLELC argued that the applicants had failed to establish a valid Antidegradation Demonstration.
On October 17, 2014, the GLELC submitted comments to the MDEQ. Five grassroots organizations joined in support of the GLELC contentions. The GLELC received significant positive feedback from these groups, and are thankful for their efforts in protecting the waters of the Great Lakes. In addition, the GLELC was recently informed that the EPA has become involved in the process, due to the interstate nature of the issues involved. The GLELC is hopeful that, with this latest intervention, a resolution, which protects the fragile ecosystem of Cobus Creek, will be forthcoming shortly.