ILLINOIS POLLUTION CONTROL BOARD
September 15,
1982
IN THE MATTER OF:
PARALLEL SHORE PROTECTION
)
R 82—11
IN LAKE MICHIGAN (Subtitle
C;
)
Part 311)
)
Proposed Rule.
First Notice.
Opinion and Order of the Board (by J.
D. Dumelle):
This matter comes before the Board upon a petition for
amendments to Title
35 of the Illinois Administrative Code;
Subtitle C:
Water Pollution; Chapter
I:
Pollution Control
Board, which was filed by the Illinois Department of Trans-
portation (IDOT) on March
3,
1982.
The petition was accom-
panied by a motion to waive the requirement that such peti-
tions be signed by 200 people,
That motion was granted on
May 13,
1982 at which time hearings were also authorized.
On
June
1,
1982 IDOT filed an amended proposal and hearings were
held after proper notice on July 20,
1982 at the Board Conference
Room in Chicago and on July 27,
1982 in the Waukegan City Hall.
The only person to testify at the hearings was Dan Injerd,
Chief,
Lake Michigan Management Section, Division of Water
Resources,
IDOT, although some members of the public attended
both hearings.
The purpose of this rulemaking as proposed by IDOT is to
obviate the need for Board review of individual Lake Michigan
permit applications for approval
of structures in the water which
comply with general permit conditions as established by this
rulemaking.
The Board would, in effect, grant its concurrence by
having the Board Chairman sign a general permit document
(see Ex.
2) which would be issued to future applicants whose
applications demonstrate compliance with the general permit
conditions for parallel
shore construction as determined by IDOT.
Those conditions will be established to insure that there will
be no harmful environmental effects caused by construction of
the structures,
For a description of the types of structures
involved, see Exhibit #1,
pp. 664—753 and 787—799.
Ill. Rev.
Stat.,
Ch.
19, §18 requires Board concurrence
for any permit “authorizing any fill or deposit of rock, earth,
sand or other material or any refuse matter of any kind or
description in Lake Michigan.”
Under current procedures, upon
an IDOT determination that a permit should issue, the relevant
documents are filed with the Board, docketed, and placed on the
Board agenda for the following Board meeting.
After Board review,
and assuming the Board concurs,
the Board enters an Order
instructing and authorizing the Chairman to sign the permit
document, and the completed document is retuned to IDOT for
issuance.
This process takes
tw~
fo four weeks
(R.
65).
48-203
2
Under the procedures proposed by IDOT nothing would be
forwarded to the Board when certain specified conditions are
determined by IDOT to have been met,
These conditions are speci-
fied in proposed Sections 311.210 through 311.255.
These sections
limit the materials that can be used in construction of parallel
shore protection structures
(5311,210) and the placement of these
structures
(5311,215 and §311,240).
They also limit the length
of the structures to 300 feet and the types of material that
can be used as backfill and for revetments
(S311.220).
They require that increases in suspended solids be mini-
mized
(S311.225), that the bulkhead be completed prior to
placement of backfill
(S311,230), that no dredging occur
below the ordinary high water mark of Lake Michigan
(5311.235),
that excavation be limited to that necessary to place the toe
of the structure (5311.235), that no excavated materials be
placed in the lake
(5311,235), that such structures not be
placed within a man-made harbor or within 200 feet of the
mouth of a waterway (5311,240),
that the Illinois Department
of Conservation be notified of any historical or archeological
materials found
(S311,24~,
and that no unreasonable interfer-
ence with navigation be allowed
(s311.250).
Finally,
if IDOT
determines that multip:Le projects, which would individually
qualify for a general permit, may cause cumulative detrimental
impacts or if there are other unique aspects in a particular
case, the normal permitting process would be required (5311.255).
According to Mr.
injerd’s testimony, the threat of water
pollution should be avoided by these conditions in that materials
used in construction would not be allowed to be of a type that
could cause pollution.
The use of parallel shore protection
devices should actually cut down on the suspended solids and
other contaminants that would otherwise enter the lake through
erosion
(R.
16—17), and should also serve to ensure that lake
currents are unaltered
(R.
14—15),
Furthermore, environmentally
sensitive areas,
such as those areas where fish spawning or
bird nesting take place, are protected
(R.
16).
The general permit mechanism would allow IDOT to be more
“responsive to the needs of property owners who are experiencing
shoreline erosion,” and “reduce the administrative workload
associated with processing permits for projects that have little
or no” detrimental impact
(R.
11).
Instead of the overall
permitting process taking 8-12 weeks,
a general permit could
be issued in 8—10 days
(R. 18).
Mr. Injerd testified that
this shortening of the period of time is especially important
for the types of structures that would fall under the general
permit requirements in that they “are done by private property
owners” who often “react to crises,
...
can’t get their
permit soon enough”
arid may miss the construction season
(R. 65—66).
He admitted, however, that “there are few cases
where there is an emergency, where there is danger to property”
(R.
67).
48-204
3
Clearly, the present length of time required for permitting
is not solely due to the time needed
for Board action.
Most of
it is due to IDOT procedures which include an analysis of the
permit application, tentative approval and a 21—day public
notice period
(R.
17).
However, IDOT has indicated that the
whole general permit scheme would fall if the Board were not to
adopt its proposal
(R.
64—65).
The major question in this proceeding is whether the Board
has the power to adopt these regulations.
First, the Environmental
Protection Act gives no explicit power to the Board to adopt
either substantive or procedural rules regarding parallel
shore protection, nor does Ch.
19,
S18.
If the Board has such
power, it must be implied.
Second,
the proposed regulations
may constitute an unconstitutional subdelegation from the
Board to IDOT of the Board’s duty to concur in the issuance of
Lake Michigan permits.
Without deciding whether the Board does in fact have such
power, the Board,
for puposes of First Notice,
will propose
Section 311.200 in a form which differs from IDOT’s proposal
in that it requires that IDOT serve notice upon the Board
at least four days prior to the proposed issuance of a general
permit.
The Board will also propose the addition of Section
311.205 which allows for Board action to terminate the general
permitting process and thereby to require that normal permitting
processes be
followed.
This procedure will allow the Board to continue its active
oversight of the Lake Michigan permitting process while shortening
the period of time required for Board review of such permits
to four days.
While the proposed procedures represent a depar-
ture from normal Board procedures, there are at least two
factors which render the departure appropriate in this area.
First, the Board’s power in this area derives from Ch. 19,
§18 of the Illinois Revised Statutes rather than from the
Environmental Protection Act, and Chapter 19 does not articu-
late any procedures to be used for Board concurrrence.
Second,
Board concurrence decisions are based upon the individual
Board member’s knowledge rather than upon a developed record,
thus distinguishing it from the usual Board decision—making
process.
The Board finds that the conditions of the general permit
are adequate to insure that the environment will not be harmed by
parallel shore construction which would be allowed under the
general permit.
Further, present Board concurrence procedures
for such permit applications may consume valuable time for
property owners,
IDOT and the Board.
Therefore,
the Board
will propose for First Notice the regulations proposed by IDOT
in this matter with only minor editorial changes to clarify the
intent of the rules, the modification of Section 311.200 and
the addition of the Section 311.205.
48-205
4
The Board does,
however, encourage comments during this
First Notice period regarding the Board’s power to adopt these
rules in the form proposed by IDOT or in the form proposed
in this First Notice.
ORDER
The Board hereby proposes for First Notice that its
Water Pollution Rules be amended by the addition of the fol-
lowing regulations:
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE C:
WATER POLLUTION
CHAPTER
I:
POLLUTION
CONTROL
BOARD
PART
311
t~AKEMICHIGAN
PERMITS
SUBPART
A:
GENERAL PROVISIONS
Section
311.100 Reference to Other Sections
311.110
Scope
and
Applicability
311.120
Definitions
311.121 Breakwater
311.122 Bulkhead
311.123 Revetment
311.124 Riprap
SUBPART B:
PARALLEL SHORE PROTECTION
Section
311.200 Board Concurrence
311.210 Construction Material
311.215 Proximity
311.220 Specifications
311.225 Suspended Solids
311.230 Timing
311.235 Excavation
311.240 Prohibited Locations
311.245 Historical
or Archeological Materias
311.250 Navigation
311.255 Exclusions
48-206
5
AUTHORITY:
Authorized by Section 27 of the Environmental Protec-
tion Act
(Ill.
Rev.
Stat.
1979,
ch. 111½, par.
1027)
and implementing Section 18 of the Regulation of Rivers,
Lakes and Streams
(Ill.
Rev. Stat.
1979,
ch.
19, par.
65).
SOURCE:
Adopted and codified at 6 Ill. Reg.
,
effective
__________________
SUBPART A:
GENERAL PROVISIONS
Section 311.100 Reference to Other Sections
Unless the contrary is clearly indicated,
all references to
“Parts” or “Sections” are to Ill. Admin. Code,
Title 35:
Environmental Protection.
For example,
“Part
309” is 35
Ill.
Adrnin. Code 309 and “Section 309.101” is 35 Ill. Admin. Code
309.101.
Section 311.110 Scope and Applicability
a)
Part 311 contains definitions and conditions applicable
to the issuance of general permits authorizing any fill
or deposit of rock, earth,
sand, or other material,
or
any refuse matter of any kind in Lake Michigan.
b)
Subpart B contains conditions applicable to the issuance
of a general permit for construction of parallel shore
protection.
Section 311.120 Definitions
As used in this Part, the following terms defined by Section
311.121 et seq. shall have the meanings specified.
Section 311.121 Breakwater
“Breakwater” means a structure protecting a shore area, harbor,
anchorage, or basin from wave action.
Section 311.122 Bulkhead
“Bulkhead” means a structure or partition to retain or prevent
sliding of land or to protect the upland against damage from
wave action.
48-207
6
Section 311.123 Revetment
“Revetment” means a facing of stone, pre—cast concrete or
other non—contaminated material built to protect a bank,
shoreline or shore structure against erosion by wave action
or currents.
Section
311.124
Riprap
“Riprap” means a layer,
facing or protective mound of stones
randomly placed to prevent erosion, scour,
or sloughing of
a structure,
beach, or embankment.
SUBPART B:
PARALLEL SHORE PROTECTION
Section 311.200
Notification of the Intent to Issue a General Permit
If any Illinois Department of Transportation general permit
is proposed to be issued under this Part, the Illinois Department
of Transportation shall notify the Board of such proposed general
permit by filing the proposed general permit and any supporting
documents with the Board at least four days prior to issuance of
such permit.
Section 311.205
Board Concurrence
a)
If within the four-day notice period described in
Section 311.200 any Board member notifies the Illinois
Department of Transportation of an objection to the
issuance of a general permit, such permit shall not be
issued until the Board has taken formal action concur-
ring with such issuance.
b)
If
no
Board
member
objects
to
the
issuance
of
a
general
permit within the four—day period prior to proposed issuance,
the Illinois Department of Transportation may deem Board in-
action as concurrence
for purposes of issuance of the general
permit and the Board shall ratify such concurrence at a sub-
sequent Board meeting.
48-208
7
Section
311.210
Construction
Materials
Bank
and
shoreline
protection
shall
consist
only
of
rock
riprap,
sand—filled bags,
revetments, permeable or impermeable
breakwaters,
or
bulkheads.
Bulkheads
must
be
constructed
of
steel,
wood
or
concrete.
Section
311.215
Proximity
Except for those structures which must be placed in offshore
water
in
order
to
be
hydraulically
effective
to
control
wave
action and shore erosion (such as breakwaters, underwater
reefs,
and
similar
structures), bank and shoreline protection
shall
be located as close to the existing bank or bulkheads
as
feasible.
Section
311.220
Specifications
Parallel shore protection structures must be constructed of
clean material such as steel, wood,
poured or precast con-
crete, or field stone and shall
not exceed 300 feet in length
(for each individual property owner).
Materials placed behind a
bulkhead or revetment must be clean material,
inculding, but not
limited
to
sand,
gravel,
or
rock.
If
broken
concrete
is
used
as
backfill,
all
reinforcing
rods
must
be
cut
flush
with
the
surface
of the concrete.
Any
clay or dirt placed as backfill must be
completely contained by an impermeable bulkhead.
No debris,
asphalt, toxic material or organic material will be allowed.
Section 311.225 Suspended Solids
All work is to be conducted so as to minimize increases in
suspended
solids.
Section 311.230 Timing
Whenever work consists of construction of a bulkhead and place—
ment of backfill,
the bulkhead must be completed prior to
placement
of
the
backfill.
48-209
8
Section
311.235
Excavation
No dredging of materials shall occur below the ordinary high
water mark of Lake Michigan (580.8 IGLD).
Excavation shall
be limited to that necessary to place the toe of the struc-
ture.
No material excavated during construction shall be
placed
in
Lake Michigan.
Section 311.245 Historical or Archeological Materials
If work reveals historical or archeological materials, operations
shall
be suspended and the permittee shall notify the Staff
Archeologist at the Illinois Department of Conservation.
Section 311.250 Navigation
No work shall cause or create an unreasonable interference
with navigation.
Section 311.255 Exclusions
Multiple projects of adjacent property owners that may cause
cumulative detrimental impacts or work in environmentally
sensitive areas or work which may have unusual impacts on Lake
Michigan or surrounding areas will be reviewed by the Illinois
Department of Transportation, Division of Water Resources and
may be excluded from the general permitting process.
IT IS SO ORDERED.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control
Board,
hereby
tify
the
above
Opinion
and Order
were ~opted
on
the
~
~
day of September, 1982 by a vote
of
0
.
Christan L. Moffett,~
9~k
Illinois Pollution
Có~t,~l
Board
48-210