ILLINOIS POLLUTION CONTROL BOARD

April

24,

1986

IN THE MATTER OF:

APPLICATION FOR LAKE MICHIGAN

)

PCB 86—60

PERMIT NO.

187

LM FOR

THE CITY OF LAKE FOREST

ORDER OF THE BOARD

(by J.

Anderson):

On April

22, 1986,

the Illinois Department

of Transportation

(IDOT)

submitted

to the Board for

its concurrence Lake Michigan

Permit NO. 187

LM to

be issued

to the City of Lake Forest.

This

concurrence

is required by “An Act

in relation

to the regulation

of

the rivers,

lakes,

and streams of the State

of Illinois”

(Waterway Regulation Act),

Ill. Rev. Stat.

1985

ch.

19 pars.

52—

79.

On the

same day,

counsel for certain riparian property

owners located downdrift of the proposed project filed an

objection to Board approval

of the permit “based

on the current

state of the administrative record” and requested that the Board

hold

a hearing prior

to action on this permit.

The City filed

responses

in opposition

to the objection on April 23 and

24,

also

requesting expedited consideration.

The owners also filed

an

additional objection on April 24.

The Board

notes that this permit application was filed with

IDOT on February 12,

that the IDOT proposed permit was presented

to the Board April

22

for placement on

the Board’s April

24

agenda,

that the City has scheduled for May

5

the sale and bid

opening for the $8.5 million

in bonds necessary to finance the

project,

delay of which could cause

the City to lose between

$500,000 and $750,000

(see attachments

to objection)

and that the

next regularly scheduled meeting of the Board

is on May

9.

For

the reasons articulated

below,

the Board believes that the

existing administrative record

is sufficient

to allow

the Board

to presently make the limited determination concerning

this

permit based

on pollution considerations only,

as provided for

and required by statute.

The Board

is

therefore giving this

matter the expedited consideration requested by IDOT and the

City,

but must remark that it prefers

to be given

a more

reasonable time period

for deliberation.*

*

The Board additionally notes

that

the City’s last filing was

received during the noon recess of the Board’s April

24 meeting

and was considered prior

to

a vote being

taken.

After

the vote,

the riparian owners made an additional filing, having been

apparently unware

of

the City’s noon filing until the meeting

reconvened.

The Board,

on its own motion by a

5—1 vote,

reopened

the case to consider

the owners’

latest filing.

The Board

readopted its Order,

all Members voting

as they did initially.

69-271

---

—2—

In summary,

the request for

hearing

is denied,

and Board

concurrence with the permit

is granted.

This

is not

to be

construed as

involving any Board determination regarding IDOT

permitting procedures,

as neither the Waterway Regulation Act nor

the Environmental Protection Act,

Ill. Rev.

Stat. 1985

ch.

111

1/2 pars. 1001—1052,

confer jurisdiction on the Board

to engage

in any such review.

The Permit Requested and Objections Thereto

The permit at

issue here would authorize construction of

a

major shoreline protection and recreational project at the City’s

Forest Park.

The project would include

placement of

approximately 80,000 tons of armor stone and 10,000 tons of rock

to construct revetments and breakwaters, placement

of

150,000

cubic yards

of sand and 50,000 cubic yards of earth

fill for

beach nourishment

and other facilities and the dredging

of 1500

yards of material

to allow for installation of boat launching

ramps.

IDOT would condition

issuance of the permit on

1)

the

City’s

initiation and continuation of

a Shoreline Monitoring

Program as proposed

by the City, and the City’s subsequent

mitigation of any erosion or shoreline damages which

the

monitoring might show was attributable

to the project, and

2)

the

City’s passage of

a resolution essentially agreeing

to be bound

by the

first condition.

The

information on which

IDOT based

its decision includes

the application accompanied by an environmental assessment by the

City that

the project would not affect downstream property

owners;

riparian owners’

objections,

and City responses thereto;

and an April

22 preliminary assessment made by experts for the

riparian owners countering

that assessment.

Also included was

correspondence relative to another permit required by the City,

a

federal permit to be issued by the Army Corps of Engineers

pursuant

to Section 404

of

the federal Clean Water Act

(cite).

By letter

of April

4,

1986,

the Illinois Environmental Protection

Agency

(Agency) provided

the Army Corps with

a certification

required by Section 401

of that Act that

“it

is

the

Agency’sJ

engineering

judgment

that

the

proposed

project

may

be

completed

without

causing

water

pollution

as

defined

in

the

Illinois

Environmental Protection Act

and

Board

regulations

provided

that

the

project

is

carefully planned

and

supervised.”

The letter went

on

to state

that the certification was

contingent on the Corp’s

inclusion in its permit of various

conditions designed

to prevent violation of water quality

standards.

This was one of the subjects of discussion between

the City,

IDOT,

and the Army Corps

at

an April

9 meeting

at which

the objectors were present.

The Army Corps’

permit was issued on

April

23,

subject

to conditions including those suggested by the

Agency.

69.272

---

—3—

The riparian owners’

substantive objections,

in essence,

are

that their properties will

be adversely affected by two asserted

effects

of the project:

diminution of littoral sediment

transport and increase or accelerated erosion due

to the

alteration of current and wave patterns along

the shoreline.

No

challenge was made

to the Agency’s water pollution conclusions.

The owners have also lodged

a procedural objection to IDOT’s

April

22 action,

which

is that the action was arbitrarily

premature, given IDOT’s knowledge that their experts’

site

inspection (necessary to finalize their report) was scheduled

for

April

26—27.

The Board1s Role In The Waterway Regulation Act

In pertinent part,

the Waterway Regulation Act invests IDOT

with jurisdiction over

“every body of the water within the State

of Illinois”,

and

requires IDOT generally to gather

and maintain

information concerning the navigability and shorelines of these

water.

Ill Rev.

Stat.

1985 ch.

9

par.

52.

The statute charges

IDOT

to “secure every

...lake...in which the State...has any

right

or

interest against encroachment, wrongful seizure,

or

unlawful

private use”.

Ill. Rev. Stat.

1985

ch.

19 par.

54.

As to Lake Michigan,

the Act specifically provides that “close

cooperation”

shall exist between IDOT,

the Board,

the Agency and

other

state agencies.

The duty

of the Agency

is abate pollution

in the Lake, by insuring that discharges meet “criteria of the

...Board”.

Ill.

Rev.

Stat.

1985 ch.

19 par.

61(a).

Paragraph

65, which is

at issue

here,

requires

a permit signed by IDOT and

countersigned by the Board,

for

the “deposit

of rock...

or other

material”,

or the

“building

of any...structure”,

or the

commencement

of “any work

of any kind whatsoever

in any....public

bodies

of water”;

the requirement of

a permit

is specifically

repeated

for deposit

of material

into Lake Michigan.

Ill. Rev.

Stat.

1985 ch.

19 par. 65.

It

is

the Board’s conclusion

that the permit system of the

Waterway’s Regulation Act

is designed to utilize the expertise

developed

by IDOT

in assessing the impact a project may have on

the configuration of waterways and shorelines,

and

to utilize

the

expertise developed by the Board and the Agency

in assessing the

impact

a project may have on the quality of the waters contained

within those waterways.

The Board’s Resolution

As the riparian owners’ objections

relate not to pollution

or water quality,

but instead to current and wave actions and

sediment

transport as they relate to beach and bluff alterations,

the Board

finds that this is not

a case where

the information

which would be generated

at

a public hearing would

be relevant

to

the Board’s charge and authority.

The request for

a public

hearing

is therefore denied.

69-273

---

—4—

Concerning

the pollution/water quality issue,

there

is

no

information here present which would lead the Board

to come

to

a

conclusion contrary

to that reached

by the Agency:

the project,

if performed

in compliance with all permits, may be

completed

without causing water pollution.

The only information which

hypothetically could

raise concern

is the City’s intention

to use

sand

fill dredged

from Waukegan Harbor

(see City’s

letter

of

4—

23—85

at

p.

5).

In light of the commonly known environmental

history of Waukegan Harbor, the suitability of

the use

of this

material,

if itself polluted, could be questionable.

However,

the condition of

the Agency’s 401 certification

(to be contained

in the Army Corps’

permit)

that the City shall not cause

pollution

or

violation of water quality standards will require

that the City analyze the materials to insure that theiruse will

not cause environmental harm.

Finally,

the Board wishes

to comment

on Condition

2 of the

IDOT permit,

requiring the City

to adopt

a resolution after

permit issuance.

While the Board does not ordinarily make

decisions contingent on future actions,

the Board notes that the

City has already publicly committed itself

to the monitoring and

mitigation provisions.

The Board therefore views the resolution

requirement

as harmless surplusage.

Accordingly, Lake Michigan Permit No.

187 LM

is hereby

approved and

the Chairman of the Board

is authorized

and

instructed

to sign the permit document.

IT

IS

SO ORDERED.

3.

D.

Dumelle,

R.

Flemal and

3.

T. Meyer concurred.

B.

Forcade dissented.

3.

Marlin abstained.

I, Dorothy

M. Gunn,

Clerk

of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

~,2L/-c~-

day

of

~

,

1986,

by

a vote of

~~—/

~

Dorothy

M.

Gu’nn, Clerk

Illinois Pollution Control Board