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    EXECUTIVE DIRECTIVE No. 2004-1

    OPEN-WATER DISPOSAL RESTRICTIONS

    WHEREAS, Section 1 of Article V of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the Governor;

    WHEREAS, under Section 8 of Article V of the Michigan Constitution of 1963 each principal department of state government is under the supervision of the Governor unless otherwise provided by the Constitution;

    WHEREAS, under Section 8 of Article V of the Michigan Constitution of 1963, the Governor is responsible to take care that the laws be faithfully executed;

    WHEREAS, the open-water disposal of dredge material contaminated with toxic substances such as dioxin or polychlorinated biphenyls (PCBs) in the waters of the Great Lakes has long been of concern to Michigan’s citizens;

    WHEREAS, allowing the open-water disposal of such material may significantly impair important uses of Michigan surface waters—including uses for public water supply, agriculture, navigation, industrial water supply, fishing, recreation, and the protection of indigenous aquatic life and wildlife;

    WHEREAS, the open-water disposal of such material within the Great Lakes has the potential to harm fish, other indigenous aquatic life, wildlife, and human health—including toxic effects on fish from direct contact with contaminated sediments, as well as the bioaccumulation of contaminants through the food chain, which threatens not only aquatic life but also wildlife and human health;

    WHEREAS, Michigan, other Great Lakes states, Great Lakes provinces, and the federal governments of the United States and Canada are devoting substantial resources to remediate areas of toxic contamination within the Great Lakes Basin;

    WHEREAS, the federal Great Lakes Legacy Act of 2002 authorized up to $50 million per year for the remediation of contaminated sediments within the Great Lakes Basin and allowing open-water disposal of contaminated sediments within the Great Lakes would contradict the purpose of the Great Lakes Legacy Act of 2002 and is inimical to restoration efforts to clean up toxic hot spots in the Great Lakes;

    WHEREAS, Michigan and other Great Lakes states are continuing to seek congressional assistance in restoring the waters and water-dependant natural resources of the Great Lakes through the proposed Great Lakes Restoration Act now being debated in Congress, which will provide assistance for the restoration of fish and wildlife habitat within the Great Lakes Basin to the Great Lakes Fisheries Commission, Great Lakes states, Native American tribes, and other interested entities;

    WHEREAS, we must not undermine the importance of this major restorative effort, and Michigan’s corresponding responsibility to ensure that requested funds are used wisely, by simultaneously permitting further impairment of the waters of the Great Lakes through the open-water disposal of contaminated dredge material;

    WHEREAS, Michigan has numerous laws in place designed to protect the Great Lakes, and Great Lakes bottomlands from pollution, impairment and destruction, including but not limited to prohibitions on the disposal of dredge material without a permit under both Part 31 of the Natural Resources and Environmental Protection Act, 1994 PA 451, MCL 324.3101 to 324.3133 (“Part 31”), and Part 325 of the Natural Resources and Environmental Protection Act, 1994 PA 451, MCL 324.32501 to 324.32516 (“Part 325”);

    WHEREAS, the Department of Environmental Quality (“DEQ”) proposes strengthening Michigan laws regulating the open-water disposal of dredged material by amending Part 31 to prohibit the open-water disposal of dredged material contaminated with toxic substances on Michigan public trust bottomland within the Great Lakes;

    NOW, THEREFORE, I, Jennifer M. Granholm, Governor of the State of Michigan, pursuant to the power vested in the Governor by the Michigan Constitution of 1963 and Michigan law direct the following:

    A. The Department of Environmental Quality, consistent with Michigan law, shall do all of the following:

    1. Ensure that no permits or approvals are issued for the open-water disposal of contaminated dredge material, unless such permits or approvals are strictly required under Michigan law.

    2. Thoroughly evaluate all proposals for the open-water disposal of dredge material to ensure that dredge material proposed for open-water disposal is adequately tested to determine that it is not contaminated and does not pose a threat to indigenous aquatic life, wildlife, and human health.

    3. Comprehensively evaluate all proposals seeking to dispose of dredge material within the waters of the Great Lakes that may be contaminated with a toxic substance, to ensure that all feasible and prudent alternative disposal methods are considered in lieu of open-water disposal.

    4. Take steps to ensure that instances of suspected violation of Part 31, Part 325, and any other law applicable to open-water disposal of dredge material are promptly investigated and referred for enforcement by appropriate departments or agencies when action is warranted.

    5. Report to the Governor within 90 days, and as otherwise requested by the Governor, on the measures taken to comply with this directive.

    B. Other state departments and agencies shall assist the DEQ in complying with this directive.

    C. As used in this directive

    1. “Department of Environmental Quality” or “DEQ” means the principal department of state government created under Executive Order 1995-18, MCL 324.99903.

    2. “Open-water disposal of dredge material” means the placement of dredge material contaminated with one or more toxic substances into the open waters of the Great Lakes excluding the siting or use of a confined disposal facility designated by the United States Army Corps of Engineers or beach nourishment activity utilizing uncontaminated materials.

    3. “Toxic substance” means that term as defined in 1997 MR 7, R 323.1205(u).

    This directive is effective immediately.

    The assistance of all state departments and agencies in implementing this directive and the continued hard work of state employees is appreciated.

    Given under my hand this 20th day of January, 2004.

    _______________________________________
    Jennifer M. Granholm
    GOVERNOR

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