IN RE:             Goemaere-Anderson Wetland Protection Act

Appeal of Joe Buzzelli
File No.87-14-1291

At a session of the Natural Resources Commission held at Lansing, Michigan October 11, 1990

FINAL DETERMINATION OF NATURAL RESOURCES COMMISSION

The Proposal for Decision is adopted and affirmed in its totality and is further incorporated into this final decision by reference and is adopted by the Department of Natural Resources as its findings of fact and conclusions of law. (See Proposal for Decision, Cause No. 87-14-1291, dated May 10, 1990, attached hereto.)

Date  10/17/90

Thomas J. Anderson, Chairman
Natural Resources Commission

PROPOSAL FOR DECISION
Kimberly Miles Rainey
Administrative Law Judge

JURISDICTION
This hearing was conducted pursuant to the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, as amended. The proceeding was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended.

PARTIES
1. The professional staff of the Department of Natural Resources is charged with the day to day administration of the Wetland Act.
2. Mr. Joe Buzzelli was represented by Mr. Eugene Bolanowski, Attorney At Law.

FINDINGS OF FACT

Petitioner is the owner of Lots 37 and 38, Harrison Township, Macomb County. subject property is located within 500 feet of the Clinton River. (Department Exhibit 5) On or about November 10, 1987, the Department received information that the Petitioner had been placing fill on Lot 38 and possibly a portion of Lot 37. A site inspection was performed by Mr. Rob Zbiciak. The Department determined subject property was a palustrine scrub-shrub emergent wetland. On November 23, 1987, the Department sent a letter (Petitioner's Exhibit 4) to Petitioner advising him to cease and desist all illegal filling activities in the wetland area. Petitioner was also ordered to remove all unauthorized fill within ten (10) days of the receipt of the letter.

On or about December 15,1987, Petitioner filed an application for an after the fact permit seeking authorization to leave the approximately 448 cubic yards of fill material on Lots 37 and 38. Petitioner also reserved the right to argue that subject property is not a wetland. (Department Exhibit 2)

The Department denied Petitioner's request for a permit (Department Exhibit 3) finding that the proposed activity would have a significant adverse impact on the natural resources, public interest, and the public trust held in the wetland system.

IS SUBJECT PROPERTY A WETLAND?

The definition of a wetland is:

land characterized by the presence of water at a frequency and duration sufficient to support and that under normal circumstances does support wetland vegetation or aquatic life and is commonly referred to as a bog, swamp, or marsh and which is any of the following:

(i) Contiguous to the Great Lakes or Lake st. Clair, an inland lake or pond, or a river or stream. (Wetland Protection Act, section 2(g))

Contiguous is defined at R 281.921(b) (iii) to be partially or entirely located within 500 feet of the ordinary high watermark of an inland lake or pond or a river or stream or is within 1,000 feet of the ordinary high watermark of one of the Great Lakes or Lake st. Clair, unless it is determined by the department, pursuant to R 281.924(4), that there is no surface water or groundwater connection to these waters.

Subject property is located within 500 feet of the Clinton River and is therefore contiguous, by definition.

The question argued by Petitioner and the Department at the hearing was whether subject property otherwise meets the definition of a wetland.

R 281.924(2) establishes the criteria for performing a wetland determination. It states as follows:

the department shall rely on visible evidence that the normal seasonal frequency and duration' of water is above, at or near the surface of the area to verify the existence of a wetland. Under normal circumstance, the frequency and duration of water that is necessary to determine an area to be a wetland will be reflected in the vegetation or aquatic life present within the area being considered. A wetland that has not been recently or severely disturbed will contain a predominance, not just an occurrence, of wetland vegetation or aquatic life. Where there is a predominance of wetland vegetation, and no direct visible evidence that water is, or has been, at or above the surface, the department shall use the following characteristics of the soils or substrate to verify the existence of a wetland:
(a) The presence of a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil that favor the growth and regeneration of wetland vegetation.
(b) Physical or chemical characteristics of soil column which provide evidence of the current and recent degree of saturation or inundation. Characteristics such as gleying, low chroma mottling, or chemically demonstrated anaerobic conditions, can be utilized to identify the current and recent depth and fluctuation of the water table or un inundation.

Petitioner provided no expert testimony regarding wetland vegetation or soil types. Petitioner was the only witness called. The first argument he raised was that he checked with the local township authorities, who advised him that subject property was buildable. He additionally checked the National Wetlands Inventory prepared by the US Department of Interior, Fish and wildlife Services. (Petitioner's Exhibit 7) Subject property was not depicted as a wetland. However. the National Wetlands Inventory includes the following caveat:

This document was prepared primarily by stereoscopic analysis of high altitude aerial photographs. Wetlands were identified on the photographs based on vegetation, visible hydrology, and geography in accordance with Classifications of Wetlands and Deep-Water Habitats of the United States (An Operational Draft.) Cowardin,et al,1977. The aerial photographs typically reflect conditions during the specific year and season when they were taken. In addition, there is a margin of error inherent in the use of the aerial photographs. Thus, a detailed on the ground and historical analysis of a single site may result in a revision of the wetland boundaries established through photographic interpretation. In addition, some small wetlands and those obscured by dense forest cover may not be included on this document.

Federal, State and local regulatory agencies with jurisdiction over wetlands may define and describe wetlands in a different manner than that used in this inventory. There is no attempt, in either the design or products of this inventory, to define the limits of proprietary jurisdiction of any Federal, State or local government or to establish the geographical scope of the regulatory programs of government agencies.  Persons intending to engage in activities involving modifications within or adjacent to wetland areas should seek the advice of appropriate Federal, State or local agencies concerning specified agency regulatory programs and proprietary jurisdictions that may affect such activities. (Emphasis added.)

The second argument presented by Petitioner was that he had lived across the street for over 15 years and was personally familiar with subject property. Petitioner testified that Lot 37 is basically flat, and that Lot 38 slopes downward to the north towards the Clinton River. He stated that there was never standing water in the spring, summer, fall or winter. Petitioner introduced Petitioner's Exhibits One, Two and Three, photographs taken in January of 1990, as support for his observation. The Department objected to their probative value in determining whether subject property has the presence of water, since the property had been disturbed and filled since November of 1987. The disturbed property is now predominated by upland vegetation.

Petitioner introduced 4 other photographs (Petitioner's Exhibit 15) taken in December of 1987. The Department could not determine whether the upper left hand picture or the lower right were actually subject property. But, since Mr. Buzzelli testified that he personally took the photographs, I will, for purposes of this opinion, rule them to be photographs of subject property. Petitioner's Exhibit 15, shows the presence of water on two of the four photographs. The other two depict the filled area.

Additionally, photographs (Department Exhibits 9A, 9C and 9E) were taken by Mr. Zbiciak on November 10, 1987. These photographs depict the property adjacent and to the north of subject property. The property has standing, and ponded water. Counsel for Petitioner argues that the Department cannot determine Lots 37 and 38 to be a wetland based on the condition of the property to the north. He argues those properties could have been wetlands prior to the fill, and that "fact" is not determinative of the wetland status of subject property.

Petitioner, via his attorney, argues that Mr. Zbiciak should have performed a soil probe on subject property to determine its soil characteristics.

Mr. Zbiciak testified on behalf of the Department. He holds a BS in wildlife Biology and is a Water Quality Specialist, Level 7, employed by the Department of Natural Resources. His responsibilities include reviewing applications involving work at water/land interfaces to determine whether they need a permit under the Wetland Protection Act, and other Michigan environmental statutes.

Mr. Zbiciak testified that there does not need to be standing water to determine a piece of property to be a wetland. Visual observation can be had to identify the vegetation, assess the hydrological indicators and to inspect the soil types.

The predominant vegetation on the property to the north of subject property was cattails, buttonbush, cottonwood, american elms and deadwood. These are all vegetation indigenous to a wetland.

In assessing a disturbed site, Mr. Zbiciak testified that the most important criteria is to look at adjacent property. The property to the south and the west had established homesteads. The property to the north is depicted by the photographs labeled Department Exhibit 9. Petitioner offered no expert testimony to contradict Mr. Zbiciak's testimony that viewing adjacent property is an acceptable means of determining a disturbed site to be a wetland. The photographs and testimony regarding the adjacent property supports the position that subject property is a wetland.

The soils on subject property were not visible because of the fill that had already occurred. A soil probe was not performed on subject property due to the large amounts of standing water on the property to the north. The soil types were checked by making reference to the us Department of Agriculture Macomb County soil survey. Department Exhibit 6 is an aerial photograph of Harrison Township with soil types superimposed. According to Exhibit 6, subject property contains Lamson Fine Sandy Loam soil. This is hydric soil where the depth to seasonal high water table is less than one foot. This type of soil is well suited for both wetland plants and wildlife. Additionally, to the south of subject property is Minoa fine Sandy Loan Soil. This is non-hydric soil which is suited for wetland plants and wildlife. Its seasonal depth to seasonal high water table is 1 to 2 feet below the surface. (Department Exhibit 6) The soil types support the position that subject property is a wetland.

Petitioner introduced permits granted from the County Road Commissioners to install culverts as support for the conclusion that subject property is not a wetland. These documents are not relevant to a wetland determination under the Goemaere Anderson Wetland Act.

Petitioner additionally argued that the tax assessment records did not disclose subject property as a wetland. Again, this is not persuasive to the issue of whether subject property is a wetland.

Department Exhibit 5 is an aerial photograph of subject property. The dark spots could be a wetland or shadows. This aerial photograph was taken in May of 1980. It does show some dark spots on subject property, but Mr. Zbiciak stressed that use of this type of a map is merely one indicator and that a site inspection should be performed. Exhibit 5 supports the position that subject property is a wetland.

The Department introduced further evidence to support its finding that subject property is a wetland. When Petitioner submitted his application, a review was made to determine whether a permit was needed under the authority of the Flood Plain Regulatory Authority, 1929 PA 245, as amended by 1968 PA 167. Mr. Nurse is employed by the Department of Natural Resources and is a Water Quality Specialist v. He holds a BS in Fisheries and a Masters in Aquatic Biology. He was not aware that Mr. Zbiciak had already inspected the property, and he therefore performed another site inspection to determine whether subject property was located within a floodplain. His report found the property not to be located within a floodplain, but he did recommend that illegal fill activity had occurred under the Wetland Protection Act. Mr. Nurse's duties include making daily wetland determinations. (Exhibit 11)
There were therefore two independent expert findings that subject property is a wetland.
Petitioner testified that he is not a wetland expert. He felt a wetland would need to have continual standing water. This is clearly not the test pursuant to the Wetland Act Act and its accompanying rules. Assessing the hydric qualities of the soil, and the wetland vegetation on the adjacent property, it is my finding that subject property is a wetland.

SHOULD A PERMIT BE GRANTED?

Subject property has no direct fishery impacts, but the nature of the soil performs a water purification value. A wetland, such as subject property, stores water at certain periods during the year. The heavier particles and pollutants are held within the wetlands and have a chance to settle out prior to entering the contiguous waterway. This characteristic does have an indirect beneficial value for the fishery habitat.

Mr. Zbiciak prepared a Project Review Report (Department Exhibit 4) to determine whether a permit should be granted. That review found:
1. The project is not in the public interest.
2. A permit is not necessary to realize the benefits of the activity.
3. There is a prudent and feasible alternative, namely building on the uplands.
4. There would be a permanent detrimental effect on the public use of the property due to the damage to the wetland system.
5. There would be a probable negative impact upon the scenic value of the property, the ecological value, the recreational value, the public health and the wildlife.
6. There would be no effect upon historic values, cultural values or fisheries, unless indirect due to water purification.
7. The wetland is small, but there is very little remaining wetlands.
8. Applicant has failed to establish that the proposed fill is wetland dependent or that a feasible and prudent alternative does not exist.

Petitioner introduced no evidence as to whether the activity is dependent upon location in a wetland and whether a feasible and prudent alternative existed.

Counsel for Petitioner instead questioned Mr. Zbiciak as to why he did not investigate whether the property to the south or the west were wetlands. These are sites with existing homes. Mr. Zbiciak indicated that his determination regarding subject property did not involve analysis of the properties to the south or the west, other than reference to the soil characteristics. Mr. Zbiciak pointed out that he does not perform any investigation of older properties, because the act is inapplicable to uses in existence prior to october 1, 1980.

Counsel for Petitioner was attempting to argue that if the property to the south was not a wetland, that subject property was also not a wetland. The Department had previously determined that to the south of subject property, possibly within 1000 feet, no wetlands exist. This determination is irrelevant to the subject proceeding.

CONCLUSIONS

1. Subject property is a wetland regulated by the Goemaere Anderson Wetland Protection Act.

2. Petitioner failed to establish that the proposed activity was dependent upon location in a wetland or that a feasible and prudent alternative did not exist.

THEREFORE, it is the proposal of this hearing officer that a permit not be granted.
 

KIMBERLY MILES RAINEY
ADMINISTRATIVE LAW JUDGE
DATE: 5/10/90
 

EXHIBIT LIST

Petitioner's Exhibits
1.     Photograph of subject property
2.     Photograph of subject property
3.     Photograph of subject property
4.     November 23, 1987 letter from Clyde Johnson informing Petitioner of violation under, the Wetland Protection Act.
5.     Board of County Road Commissioners Application for permit to place plastic pipe in roadway - Lot 37.
6.     Board of County Road Commissioners Application for permit to place plastic pipe in roadway - Lot 38.
7.     US Department of the Interior Fish and Wildlife Service National Wetlands Inventory of subject property.
8.     Survey of Lot 37
9.     Survey of Lot 38
10.Survey of subject property depicting the filled area of Lot 38.
11.-14. Property tax receipts for Lots 37 and 38 for the summer and winter taxes 1989.
15.Four photographs of subject property.
16.Memorandum dated February 25, 1988 from Rob Zbiciak to Sally Stoll.
17.Letter of June 3, 1988 from Eugene Bolanowski to Rob Zbiciak.

DEPARTMENT EXHIBITS:

1.     Department Project Review Report dated 11/10/87 prepared by Rob Zbiciak.
2.     Department of Natural Resources Public Notice and request for comment on the Application of Joe L. Buzzelli to place 448 cubic yards of fill on lots 37 and 38.
3.     Department denial letter dated May 6, 1988.
4.     Department file memorandum on site inspection prepared by Rob Zbiciak dated May 2, 1988.
5.     Harrison Township map showing subject property in relation to the other lots on Shore Line Drive.
6.     Soil type map.
7.     Project Review Report dated May 11, 1988.
8.     Memorandum dated December 14, 1988 from Ernie Kafcas, Wildlife. Habitat Biologist to Rob Zbiciak regarding the wildlife effect of the proposed fill project.
9.     Harrison Township Map of subject property.
9A:Photograph of subject property looking SE at wetland fill and the rest of the wetland.
9B:Photograph of subject property looking west at the filled area.
9C:Photograph of subject property looking north at edge of fill and remaining wetland.
9D:Photograph of subject property looking west - at part of the fill.
10.National Wetlands Inventory of subject property.  Blueprint form of the same as Petitioners.
11.Department Project Review Report dated May 11, 1988.