Muskegon Save Our Shoreline

Nugent Appeals Chester’s Pipeline
Denial in Ingham County
Circuit Court

Court case puts dunes in crosshairs

By Jeff Alexander, CHRONICLE STAFF WRITER

The fight over Nugent Sand Co.'s proposal to build a wastewater pipeline through a Lake Michigan dune has moved into the courts, where a company victory could trigger more construction in coastal dunes statewide.

A Nugent Sand subsidiary, Dune Harbor Estates LLC, recently filed an appeal in Ingham County Circuit Court challenging the state's refusal to issue a permit needed to build a 600-foot pipeline through a 4,000-year-old dune.
The company wants to lower water levels in two man-made lakes at its Norton Shores mining site by piping up to 8 million gallons of processed wastewater daily into Lake Michigan.

Michigan Department of Environmental Quality Director Steven Chester denied the pipeline permit in December. Chester said the pipeline would "fundamentally alter the physical characteristic of the dune."

Dune Harbor's lawyers claimed the company didn't need a state permit because the proposed pipeline is a lake level control outlet -- not a structure, "use or contour change" regulated by the state's Sand Dune Protection and Management Act.

In the court filing, Dune Harbor attorney William Fulkerson said Chester's order "is not supported by competent, material and substantial evidence."

"The order is arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion," Fulkerson said.

Bob Chandonnet, owner of Nugent and a principle in the Dune Harbor development, could not be reached for comment.

Opponents of the pipeline said a court victory by Dune Harbor could weaken the state's dune protection law, which limits construction in coastal dunes.

"This is a real test of the dune law," said Jamie Morton, manager of outreach programs for the Alliance for the Great Lakes. "There has been a lot of focus on (Nugent's) water in the past, but this fight is really centered on the dunes."

Chester said the court case would have statewide implications if it reaches the Michigan Court of Appeals, the next step in the legal process.

"If our position isn't sustained, it will make it a lot easier for parties to get exceptions (to the dune law) and avoid regulation," Chester said.
"I'm very comfortable and confident with my ruling and I think it will withstand the challenges being raised."

Chandonnet wants to build 65 homes around one of two man-made lakes at the Nugent site. The development would be called Dune Harbor Estates.

Nugent officials have said they were surprised when water levels in the man-made lakes rose six feet after mining ceased on the south portion of its 440-acre site. The company is still mining sand in and around a man-made lake on the north end of its property.

Chester has said Nugent could resolve its high water problem by building fewer houses around the south lake and providing larger setbacks from the water.

Darlene DeHudy, vice president of Muskegon Save Our Shoreline, said she fears Nugent and Dune Harbor will eventually prevail in the courts.

"Obviously, they're determined to put the pipeline in," DeHudy said. "The problem is the public thinks it is never going to happen; I'm afraid it is."

The DEQ already has issued Nugent a permit to discharge its sand-mining wastewater into Lake Michigan. State officials have said the discharge would not pollute the lake; critics claim the discharge would jeopardize the drinking water supply for most residents in the greater Muskegon area.

Critics also have said the proposed pipeline -- which would transport treated wastewater from Nugent's sand-cleaning process into a 1,925-square-foot, rock-filled plunge pool on the Lake Michigan beach -- would be an eyesore and a potential hazard to kids playing on the beach.

In his December ruling, Chester said the proposed pipeline project would not threaten human health or public safety. But he said the proposed plunge pool constituted a structure and, as such, was prohibited by the dune law from being built on the beach.

©2006 Muskegon Chronicle
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