Petition of Steven E. Aldridge
File No. 91-07-0305

The above-entitled matter has been the subject of a contested case hearing resulting in a Proposal for Decision dated September 23, 1995, and is now before the Office of Administrative Hearings-Chief Administrative Law Judge for review and decision.

The Parties were offered the opportunity to file exceptions to the Proposal for Decision. No exceptions were filed.

The Chief Administrative Law Judge of the Office of Administrative Hearings has considered the Proposal for Decision, exhibits, submissions and arguments of the Parties.

The Chief Administrative Law Judge of the Office of Administrative Hearings ACCEPTS the Proposal for Decision, its findings of fact and conclusions of law.
 

NOW, THEREFORE, IT IS ORDERED: The Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS and incorporates, by reference, the attached Proposal for Decision dated September 23, 1995, including the findings of fact and conclusions of law. The application for a permit filed by Steven E. Aldridge, File No. 91-07-0305 is GRANTED.
 

Date: December 26, 1995 ________________________________
Richard G. Lacasse
Chief Administrative Law Judge

IN RE: Natural Resources and Environmental Act of 1994 as amended, parts 301 and 303, Inland Lakes and Streams and Wetlands Protection, respectively,

Petition of Steven E. Aldridge
File No 91 070305

Richard A. Patterson
Administrative Law Judge
Date: September 23, 1995

This matter is a contested case concerning the application of Steven E. Aldridge for a permit to dredge the shoreline of an inland lake and adjacent wetland.

The petition for a contested case hearing was filed pursuant to 1972 PA 346, as amended, and 1979 PA 203, as amended, the Michigan Inland Lakes and Streams Act and Goemaere-Anderson Wetland Protection Act, now parts 301 and 303 respectively, of the Natural Resources and Environmental Protection Act of 1994, as amended.

The professional staff of the Department of Natural Resources is charged with the day-to-day implementation of the above acts. Steven E. Aldridge filed for a contested case hearing pursuant to the acts.

Petitioner is the owner of land in Hill Township, Ogemaw County, Michigan which fronts on George Lake. The parcel is comprised of two fifty (50) foot lots which total one hundred (100) feet of lake frontage. The lots are one hundred thirty two (132) feet deep from the shore line to Maple Road at the rear.

Petitioner applied to dredge the entire frontage of which approximately fifty (50%) percent on the northeast is open water. The remaining frontage is comprised of what has been described as a bog or wetland which contains considerable debris in the nature of old tires, dock parts and brush. In addition to dredging, Petitioner desires to back fill with sand.

The Department solicited public comment and Mr. Fred W. Gottschalk viewed the site and completed a project review report (Exhibit 2). Subsequent to the project site review, a letter was sent to Petitioner on August 7, 1991 articulating the reasons for denial of the permit and reaffirming the Department's original finding, under a previous application 90-07-0138, which permitted dredging and filling of the open water area but denied dredging of the wetland area. That letter (Exhibit R-3) denied the permit based on a perceived adverse impact of the natural resources associated with George Lake. There were three bases articulated:

First, Petitioner had not satisfied the environmental assessment criteria of Rule 4 of the administrative rules promulgated pursuant to the Inland Lakes and Streams Act, 1985 AACS, R281.814;

Second, The permitting criteria found in section 9 of the Wetlands Protection Act had not been satisfied (MCL 281.709) and;

Third, the Michigan Environmental Protection Act requires that the Department deny an application for activities that will cause pollution, impairment or destruction of the State's natural resources.

The Environmental Protection Act, as it existed at the time of this application, contained a provision in MCL 691.1205(2) to the effect articulated above. This act has subsequently been repealed and is now part of the Natural Resources and Environmental Protection Act (Act 451 of 1994, as amended). The intent and purpose of this Act is to provide a means of enforcement of environmental concerns through civil action in the circuit courts or intervention in administrative, licensing and other proceedings, sec. 324.1701, et seq. Any perceived environmental impact is better and more appropriately addressed under the Inland Lakes and Streams Act the Wetland Protection Act. Although both these acts are applicable, the Department has no objection to the dredging and filling of the open water area and is objecting only to such activities in the wetland area. Therefore, the crux of this case involves the impact under the criteria of the Wetland Protection Act.

I find, as a matter of fact, the westerly area comprised of approximately forty (40) by fifty (50) feet is a wetland which is contiguous to an inland lake and thus is regulated. The activity proposed requires a permit pursuant to the Act. The Wetland Act contains criteria for the review of permit applications and mandates that findings be made with regard to each criterion.

Sec. 9 (1) A permit for an activity listed in section 5 shall not be approved unless the Department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.

A determination of whether the project is in the public interest is made by applying criteria in the "Act". I have found that a permit is necessary to engage in the activity requested, and further find it is an otherwise lawful activity.

(2) In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity. The decision shall reflect the national and state concern for the protection of natural resources from pollution, impairment and destruction. The following general criteria shall be considered:
(a) The relative extent of the public and private need for the proposed activity.

The proposed activity is to dredge and sand the lake front for enhancement of aesthetics and recreational use. Based on testimony as to the presence of old tires, dock parts, brush, etc., there may be a public need to health and safety, although it would be minimal.
 

(b) The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.

The benefit to petitioner is to make the property more desirable and to enhance its recreational use and, assumedly, its monetary value.

The Department's position is that the originally permitted activity which was confined to the open water area is a feasible and prudent alternative. Petitioner testified that if the activity was so limited, it would be of no use to him in that the debris and muck remaining would constantly migrate back into the dredged area. If he is allowed to dredge his entire shoreline, there will be a continuity of this bottom land with adjacent bottom lands on each side which would alleviate the debris and muck migration problem. The Department has no objection to removal of the debris, but petitioner testified it would be impossible to do so without seriously disrupting the wetland which would be tantamount to dredging.

Obviously, there is no feasible and prudent alternative location for the activity. As regarding alternate methods, I find that dredging confined to open waters as suggested by the Department is not a feasible and prudent alternative because muck and debris will continue to migrate into the dredged area.
 

(c) The extent and permanence of the beneficial or detrimental effects which the proposed activity may have on the public and private uses to which the area is suited, including the benefits the wetland provides.

The proposed activity would eliminate an area of wetland approximately forty (40) by fifty (50) feet and convert it to open water. The beneficial effect to petitioner would be to provide him a more pleasing area that would be more conducive to recreational use. As this is private property, there is no generalized public use or benefit. The existing wetland appears to be more of a detriment than a benefit.
 

(d) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed.

The Petitioners' property is among other properties on the lake that have been dredged and filled with sand. It appears to be one of the last, if not the last, lots within the immediate area that has not been so developed. There are large tracts of undeveloped wetland at both the easterly and westerly shores of George Lake. Department staff indicated that they have issued permits previously, but that those permitted activities did not contain wetland and were confined to open water. There would not appear to be any perceptible impact on the watershed in that the wetland juts out into the lake and, if anything, might be an impediment to the watershed by restricting water flow.
 

(e) the probable impact on recognized historic, cultural, scenic, ecological or recreational values and on the public health or fish or wildlife.

There was no testimony on the record regarding the historic and cultural impact and those considerations are of no significance. The scenic impact is highly subjective but would seem to greatly enhance the appearance of the property. There would be no perceptible impact on the public health, as stated. Recreational values, I have found, would be increased. Ecological values, and particularly the impact on fish and wildlife, were extensively testified to by Mr. Fred Gottschalk, the district supervisor for Land and Water Management Division based in Mio. He holds a Masters Degree in aquatic biology from Michigan State University.

His site review indicated the presence of insects, song birds and leopard frogs. His concern is that removal of this habitat would disrupt the food chain. As a littoral zone, the insects provide food for the minnows and frogs which, in turn, provide food for the fish. By removing this ecosystem, fish that are accustomed to feeding in the immediate area would lose the food source and birds would lose their habitat. These species cannot simply move elsewhere as the natural balance in other areas may not accommodate an influx of additional wildlife. Therefore, there may be a loss of wildlife.

However, Mr. Gottschalk had no scientific evidence to verify or quantify this consideration. He could not testify with certainty as to the quantity of type of fish population. He had reviewed some old fisheries records, but had not fished the lake or spoken with people who have. He believed, however, that Blue Gill, Large Mouth Bass and Pike may be present and that the Blue Gill and Bass would be affected. He could not say how much, but believes that even a loss as low as one percent (1%) or less is unacceptable.

As to the impact of song birds, petitioner testified there are wooded areas in the immediate area which would appear to be able to accommodate that small population. There was no evidence on the site of the presence of wetland species such as Red Winged Blackbirds.

It would appear that the wetland involved is approximately one three hundredth (1/300) of the lake area (the wetland being 1/4 acre or less and the lake 58 acres). While Mr Gottschalk's concerns are considered, I find that any adverse impact would be extremely minimal. While fish that inhabit that immediate area would lose that local food source, other food sources exist on the lake. Although testimony was elicited that wetlands provide nesting areas for loon, there was no evidence they are present.

Additionally, the description of the considerable debris present in the wetland, most probably created by dumping by others in the area, decreases the value of the wetland.
 

(f) The size of the wetland being considered.

The wetland which juts out into George Lake is approximately forty (40) by fifty (50) feet or two thousand square feet, less than 1/4 of an acre.
 

(g) The amount of remaining wetland in the general area.

The extensive wetlands at the east and west shores of the lake were not specifically quantified, but were acknowledged by all who testified to be very large. Petitioner estimated the wetland on his property would be less than one (1%) percent of the total wetland in the watershed. This estimate was not disputed by the Department.

Mr. Gottschalk testified to his perception as to the cumulative impact of the proposal. Based on the area of the wetland involved here, vis a vis the wetlands on the lake, there would not appear to be any cumulative impact. He testified as to discussion between the owner of property adjacent to the westerly wetland and the Department regarding filling that wetland to provide lake access for development. Further, Mr. Gottschalk opined that some development may occur on or in the easterly wetland. These consideration are far too speculative to have any bearing on this case.

Mr. Gottschalk also testified that Ogemaw County is the tenth fastest growing county in the State as an additional concern regarding the cumulative effect. Again, this consideration is speculative, remote and irrelevant as to this application.
 

(h) Proximity to any waterway

This wetland is contiguous to George Lake.
 

(i) Economic value, both public and private, of the proposed land change to the general area.

There would not appear to be any significant economic value to the general area either public or private. Petitioner may experience a small economic benefit as a result of the project. The lot's value is likely to increase.
 

(3) In considering a permit application, the Department shall give serious consideration to finding of necessity for the proposed activity which have been made by other state agencies.

There have been no findings by any other state agencies.
 

(4) A permit shall not be issued unless it is shown that an unacceptable disruption will not result to the aquatic resources. In determining whether a disruption to the aquatic resources is unacceptable, the criteria set forth in section 3 and subsection (2) shall be considered. A permit shall not be issued unless the applicant also shows either of the following:
(a) The proposed activity is primarily dependent upon being located in the wetland.
(b) A feasible and prudent alternative does not exist.

While only one of the above criteria need be established in that the word "either" is utilized, the proofs have established both.

This activity is, in fact, primarily dependant upon being located in the wetland as the proposal is to remove it. As previously stated, there is no feasible and prudent alternative to this proposal.
 

As to the Inland Lakes and Streams Act, the aforementioned Rule 4 (R281.814) states, in pertinent part,

". . . a permit shall not be issued unless . . .
 

a. The adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible.
b. The resource effected is not a rare resource.
c. The public interest in the proposed development is greater than the public interest in the unavoidable degradation of the resource.
d. No reasonable and prudent alternative location is available

For the reasons previously stated under the analysis of the Wetland Act, I find:

a. The adverse effects to the environment area, in fact, minimal.

b. The resource affected is not rare.

c. The public interest is not effected.

d. No feasible and prudent alternative location is available.
 

1. The petitioner has applied for a permit to engage in and activity which requires a permit under the Inland Lakes and Streams Act and the Wetland Protection Act.

2. Based on the foregoing "Findings of Fact", I conclude as a matter of law, the proposed activity will not cause an unacceptable disruption to the aquatic resources.

3. I conclude, as a matter of law, the proposal is wetland dependent.

4. Further, based on the foregoing "Findings of Fact", I conclude, as a matter of law, a feasible and prudent alternative does not exist.

It is proposed that the permit should be issued, as applied for, allowing dredging and filling as proposed with the condition that any sand fill be even with the grade of the adjoining bottom lands.
_____________________________________
Richard A. Patterson
Administrative Law Judge
Dated: September 23, 1995
 

R-1 Documentation, related to the permitting process, includes Application for Permit, with graphs/maps and Public Notice.
R-2 Project Review Report.
R-3 Letter of Denial of Permit.
R-4 Hand drawn depiction of George Lake.
R-5 Hand drawn depiction of lake front involved.