______________________________________________________________________________

SUBJECT: Part 303, Wetland Protection and Part 31, Floodplain Occupancy Authority of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended. Petition of Larry J. Clear

File No. 96-11-0003

______________________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated June 18, 1997. In a letter dated June 18, 1997, the Office of Administrative Hearings gave the Parties to July 11, 1997, to file written Exceptions to the Proposal for Decision. Mr. Clear filed the Petitioner's Exceptions on June 26, and July 8, 1997. The Department of Environmental Quality filed its Exceptions on July 2, 1997. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for the final agency decision pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq. -01.

This Tribunal has considered the Proposal For Decision, the Parties Exceptions, exhibits, pleadings and arguments. Proposed findings and conclusions not addressed in this Final Determination and Order were found to be unsupported by the record or unnecessary in making a final decision in this contested case.

In his Exceptions, Mr. Clear addresses the inconsistency in the Proposal for Decision regarding the amount of the fill requested. However, the application for a permit reveals differing amounts of fill was requested. Exhibit 3. The Project Review Report references a request for fill in the amount greater than 47,000 cubic yards, while the denial letter references the request as being for 47,265 cubic yards of fill in a wetland and floodplain/floodway. Exhibit 5 and 7. It would appear the confusion stems from the various numbers contained in these documents. In any event, this issue is moot due to the finding that a feasible and prudent alternative location was found to exist for the proposed activity. Mr. Clear also raises numerous other issues in his Exceptions which do not have a bearing on the findings in this matter and therefore, will not be addressed.

The Department raises two issues in its Exceptions. The first is whether a Department witness testified that the project is wetland dependent. The Department also maintains the issue of wetland dependent and the availability of feasible and prudent alternative are separate. What the witness testified to can not be ascertained from the record being considered for this Final Determination and Order. However, the conclusions of Law in the Proposal for Decision states the project is not wetland dependent and that finding is accepted.

The Department next takes issue with the finding that the impact of the proposed project would cause a ". . . perceptible pollution, impairment or disruption of the wetland". The Department contends the impact would be substantial rather than perceptible. The issue presented here pertains to a factual finding made by the fact-finder in this case and will not be disturbed unless it results in a clearly unjust decision. It is obvious this issue, if it were true, does not reach that level. Furthermore, it does not affect the finding made in this case that the Petitioner is not entitled to the permit for which he applied due to the existence of a feasible and prudent alternative location.

The Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS AND INCORPORATES BY REFERENCE the attached Proposal For Decision including the Findings of Fact and Conclusions of Law.

THEREFORE, IT IS ORDERED:

1. The Proposal For Decision dated June 18, 1997, is adopted by reference and incorporated into this Final Order.

2. The application for a permit for File No. 96-11-0003 is DENIED.

3. The Office of Administrative Hearings does not retain jurisdiction in this matter.

Dated: July 14, 1997 ______________________________________

Richard G. Lacasse, Chief

Administrative Law Judge, MDEQ

Office of Administrative Hearings

______________________________________________________________________________

SUBJECT: Part 303, Wetland Protection and Part 31,

Floodplain Occupancy Authority of the Natural

Resources and Environmental Protection Act,

1994 PA 451, as amended.

Petition of Larry J. Clear

File No. 96-11-0003

______________________________________________________________________________

Richard A. Patterson

Administrative Law Judge

Dated: June 18, 1997

This matter is a contested case concerning the petition of Mr. Larry J. Clear (Petitioner) for review of the Department of Environmental Quality's (Department) denial of a permit to place 47,265 cubic yards of fill in a wetland and floodway/floodplain of the south branch of the Flint River and on an adjacent upland to create a building site. In addition, he is desirous of constructing a pond in the area where some of the fill would be excavated on an adjacent lot. A hearing on this matter was conducted on April 10, 1997.

The hearing was requested under, and is governed by, Part 303, Wetland Protection, MCL 324.30301 et seq., MSA 13A.30301 et seq., and Part 31, Floodplain Occupancy Authority Water Resources Protection, MCL 324.101 et seq., MSA 13A.3104 et seq., of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended, and was conducted pursuant to the provisions of the Michigan Administrative Procedures Act., MCL 24.201 et seq.; MSA 3.560(101), et seq.

Mr. Larry J. Clear, the applicant for a permit, filed a petition for a contested case hearing on August 2, 1996, on the June 7, 1996, denial (Exhibit 7) of his application, and is the Petitioner in this matter. The professional staff of the Department is responsible for administering Part 303 and Part 31 and is the Respondent in this case. Mr. Clear represented himself, in pro persona, and was his only witness. The Department was represented by Dr. Gary Marx, District Supervisor, Land and Water Management Division (LWMD). Daniel H. Morgan, District Supervisor, LWMD, and Thomas W. Kolhoff, Land and Water Management Analyst, LWMD, testified on behalf of the Department. Attached to this Proposal for Decision is a listing and brief description of the 10 exhibits entered during the hearing.

Pursuant to the stipulations entered into by the parties during the pre-hearing conference on March 13, 1997, I find, as a Matter of Fact, the Petitioner is the proper applicant for a permit, the activity proposed in the permit application is a regulated activity, a permit is necessary and the Department has jurisdiction. Pursuant to the Administrative Procedures Act, MCL 24.278, and Dana Corp., v. Employment Security Commission, 371 Mich 107, (1963), said stipulations are accepted as part of the record in this matter.

Petitioner Larry J. Clear is the owner of a real property on Maple Grove Road, Lapeer Township, Lapeer County, Michigan. The land is compromised of two parcels totaling 12.3 acres lying between Maple Grove Road on the east and the south branch of the Flint River on the west. The property is of an irregular long rectangle shape with uplands at the east which slope toward low depressional areas to the west. Petitioner proposes to fill to extend the higher elevation from east to west to accommodate a building site.

An application for permit dated December 30, 1995 was filed with the Department and the matter was set for public notice. In response to the public notice, a letter was received from the owners of property to the west and across the river from the subject parcel, Dr. and Mrs. Michael O'Leary, stating their opposition to the proposal (Exhibit 4).

The application was reviewed by Mr. Thomas Kolhoff, who conducted a detailed on site review, obtained input from Mr. Daniel Morgan as to the floodplains issue, and prepared a project review report (Exhibit 5). In that document he states:

Site in mainly FO/EM wetland, floodway/floodplain located east of the river adjacent to upland along Maple Grove Road. Wetland has existing ponded water and shows signs of recent flooding. Proposal is to place 47,000 yds+ and application does not indicate what amount is proposed wetland. Property has existing 70'-106' wide area of upland adj. to the road. Provided it is acceptable w/floodplains. This area could be filed without impacting wetland. Applicant has not shown project is in public interest and that an unacceptable disruption to the aquatic resource will not occur. Alternatives appear to exist.

Mr. Morgan's report (Exhibit 2) states:

The floodway for the South Branch of the Flint River extends approximately 200 feet landward of the centerline of the river at this location per the Township of Lapeer Flood Insurance Study. A June 4, 1996 site inspection was conducted and this designation was found to be appropriate. Fill landward of the floodway is permittable under Part 31. It was noted however, that the majority of the site, including areas landward of the floodway appear to be regulated wetlands.

Based on these considerations, Mr. Kolhoff denied the permit (Exhibit 7). In doing so he stated:

After due consideration of the permit application, on-site investigation and other pertinent materials, the Department finds that the proposed project will have significant adverse impact on the natural resources, public interest, and the public trust associated with the wetland and the South Branch of the Flint River.

The proposed activity would destroy a significant amount of existing emergent and forested wetland habitat. The proposed project would severely and negatively impact established biological communities which provide habitat for breeding, nesting, feeding, and rearing of a wide variety of wildlife species. This area also provides valuable production habitat for reptiles, amphibians, and macroinvertibrates which are a vital part of the food web. In addition, it is expected that this project will have adverse impacts on water quality, ground and surface water hydrology, and aesthetic considerations; thereby resulting in or leading to the possible degradation and/or impairment of associated water resources.

Dr. Gary Marx was on site April 4, 1997 and took a number of photographs which were placed on a board (Exhibit 8). These photographs depict the area as he observed it that date. The distance from the roadway in the area proposed to be filled to the river is 500 feet. Dr. Marx described this area as virtually level with standing water and a high water table. He obtained the Lapeer Township zoning ordinance which requires a set back of 50 feet the road (Exhibit 9). Petitioner asserts the set back of 65 feet, but it is clear that applies to section line roads, which Maple Grove is not. Dr. Marx testified he did not take elevations on the site.

Mr. Daniel Morgan is the District Supervisor with Land and Water Management, Saginaw Bay office. He is involved in administering Part 31 and reviewed this proposal. Under §3104(1) the Department shall have control and a permit is required to use or occupy the floodplain. In administering Part 31 he looks at the land area and determines the floodplain and floodway. The floodplain is the area of overflow from streams and the floodway is the area of moving water. In Mr. Morgan's opinion, the act prohibits occupation of the floodway. In that the proposal involves placing fill in the floodway, he recommended denial of the permit. His determinations were made by utilizing the flood insurance study as is required by 1984 AACS, R323.1314(w). His findings are contained in Exhibit 1.

Mr. Morgan found that a 6 inch rain in the watershed would raise the Flint River 6 ½ feet. The river bottom is 12 feet below the grade of Maple Grove Road. Therefore, if the level of the river was raised 6 ½ feet the floodway would extend 200 feet from the center of the river to an elevation 5 feet above the river bottom. The floodplain would extend to an elevation 7 feet above the river bottom. These determinations are depicted on a chart on the last page of Exhibit 1. He estimated the area of flowage would be limited upstream by the bridge on Greenwood Road to 198 square feet and would increase velocity to 6 feet per second, which is of sufficient velocity to sweep cars away. Although the flow would be less over Petitioner's property, it would still be substantial. He stated there is a good portion of upland next to the road and concluded that he could permit some fill, but not to the extent proposed. Mr. Morgan also noted the existence of wetlands on the site. To his knowledge the plan was never modified to accommodate his determinations.

Mr. Thomas W. Kolhoff was an Analyst with the Land and Water Management Division, Shiawassee Office and in that capacity he regularly administers Part 303, in addition to other parts of NREPA. He reviewed the application for permit and performed a wetland delineation, finding that a large portion of the subject property is wetland. Mr. Kohloff noted a sloping upland on the easterly portion of the property which varied from 70 to 100 feet to the toe of the slope where the wetlands began: He determined that if one places the extent of fill (Exhibit 3) over the line depicting the border of the wetland, the proposed fill would extend 150 to 200 feet in to the wetland. This computes to approximately 2/3 of the fill being placed in the wetlands, compromising some 30,000 yards and covering 3 ½ to 4 acres. He noted the presence of standing water, buttressed tree roots, saturated soil and matted leaves, all of which are indicators of wetland hydrology. The vegetation present includes Sedges, Skunk Cabbage, Course Crow Foot, Meadow Rue, Maple and Elm, all species of plants which are found in wetlands. Exhibit 5.

Mr. Kohloff determined the project was not wetland dependent in that there was a feasible and prudent alternative, namely the existing uplands could be used as a building site. This scenario would require fill, but it could be confined to the uplands which no permit is required. In sum, he found the proposal would not be in the public interest and would involve an unacceptable disruption and unreasonable destruction of the benefits provided by the wetland. The denial of the application for a permit was entered as Exhibit 7.

While Mr. Clear does not dispute Mr. Kolhoff's delineation, he does not feel building as close to the road and confining the activity to the uplands is desirable. In addition, he argues that by confining his activity to only one of the 2 parcels he owns, there will be less overall activity than if both parcels were improved . His proposal involves creating a pond on the adjacent parcel which would prohibit building on that site.

Mr. Kolhoff did not specifically address the pond issue or evaluate the proposal under Part 301. The permit application was vague to that portion of the proposal and was seen as moot in that the fill portion had been denied. While Mr. Kolhoff stated in some instances ponds may be beneficial, they can be detriment to diverse wetland. While the specifics would have to be addressed, he doubts the ponds as proposed could be permitted due to its location and size. One basic problem would be the stagnation and heating of the pond, which could introduce warm and nutrient filled water into the cold water Flint River in the event of overflow.

There is no question or contention the area in which the activity is proposed is anything other than a regulated wetland and involves both the floodplain and floodway of the Flint River. Furthermore, as previously noted, the Parties stipulated to this fact and said stipulation has been accepted.

The Petitioner's proposed activity involves placing fill material in a regulated wetland. Under Section 30304 of Part 303, all such activities are prohibited without a permit, as follows:

Except as otherwise provided by this Act or by a permit obtained from the Department under sections 30306 to 30314, a person shall not do any of the following:

(a) Deposit or permit the placing of fill material in a wetland.

(b) Dredge, remove, or permit the removal of soil or minerals from a wetland.

(c) Construct, operate or maintain any use or development in a wetland.

(d) Drain surface water from a wetland.

In order to issue a permit for the activity requested by the Petitioner, the criteria of Section 30311 of the Act, MCL 324.30311(1), must be considered.

(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.

Because the proposed activity is for fill in a regulated wetland, I find a permit is necessary to realize the benefits derived from the activity. There was no testimony the proposed activity is not otherwise lawful. I find, the proposed activity is lawful.

A determination of whether the project is in the public interest is made by applying criteria discussed in Part 303. These criteria are found in Section 30311(2) as follows:

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 form 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 benefit which may reasonably be expected to accrue is providing Petitioner a residential building site. There would, therefore be a benefit to Petitioner and, assumedly, an economic benefit to the contractors and tradesman involved. There would also be an increase in the tax base of the township. I find, as a Matter of Fact, the public need for the proposed project is limited to the generation of employment and addition to the local tax base for the support of public services. I find the private need for the proposed project limited to the Petitioner's desire to construct a home and pond on the site.

The proposed project appears to present substantial foreseeable detriments. As previously indicated, the proposal would involve an estimated 30,000 cubic yards of fill covering 3 ½ to 4 acres of contiguous wetland. Given the scope of the project, and being cognizant of the National and State concern for the protection of natural resources, I find, as a matter of fact, there will be perceptible pollution, impairment and destruction of the wetland as a result of the proposed activity.

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

A feasible and prudent alternative location exists for Mr. Clear's proposals by utilizing the buildable upland adjacent to Maple Grove Road which extends westward from 70 to 100 feet. Exhibits 5 and 7. While this is not as desirable to the Petitioner as his proposal, it is feasible and prudent and I so find, as a matter of fact.

(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 only beneficial effect would be the private use of the property by Petitioner as a residence. The concerns of the Department as expressed in the denial letter (Exhibit 7) are to the perceived detrimental effects on the wetland, the watershed and adjacent waters. These considerations are not rebutted by Petitioner, other than his expression of being insulted by the inference that he would harm the river. He presented no scientific evidence to counter the testimony of the Department's witnesses. The proposed activity would unquestionably result in a permanent installation and use of a large portion of the wetland.

I find as a matter of fact, the proposed activity will result in a permanent installation and there will be detrimental effects on the public and private uses to which the area is suited. (d) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed.

There is nothing in the record to indicate any future activities in the watershed other than Petitioner's proposal and so, therefore, I find there appears to be no cumulative impact.

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

The record does not address historic or cultural impacts and there appear to be none. The scenic impact is subjective. Obviously, the Department prefers the scenic value of the pristine wetland. Petitioner, on the other hand, would find a residential development to be preferable. The ecology of the area will be adversely affected as found above. Recreational use will be not increased from its current level if the project is permitted. The public health will be unaffected. The testimony summarized previously indicates wildlife and fisheries usage could be affected. I find, therefore, there will be no probable impact on the above criteria.

(f) The size of the wetland being considered.

The proposal involves approximately 3 ½ to 4 acres out of 12.6 acres, of which at least half or more are wetlands.

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

There is nothing on this record regarding the presence of wetlands other than those on Petitioner's land. Reference to the presence of wetlands across the river on Dr. and Mrs. O. Leary's property (Exhibit 4) was made, but not quantified.

(h) Proximity to any waterway.

The wetland is contiguous to the South Branch of the Flint River.

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

The private economic benefit to Petitioner would appear to be great, in that building could occur on the existing upland. Therefore, the benefit of building as proposed on the upland, although possibly less desirable, is not economically disadvantageous. The public benefit would entail the work provided local craftsmen, addition to the local tax base and the creation of goods and services by those occupying the land.

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

There have been no findings of 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 prudent alternative does not exist.

Based on the foregoing discussion, I find the proposed activity will cause an unacceptable disruption of the aquatic resources. I further find the proposed activity is not dependent upon being located in a wetland, and as I have previously found there is a feasible and prudent alternative upland location available.

MCL 324.3108 provides:

A person shall not occupy or permit the occupation of land for residential, commercial, or industrial purposes of fill or grade or permit the filling or grading for any purposes other than agricultural of land in the floodplains, stream bed or channel of any stream, as ascertained and determined for the record by the department, or undertake or engage in any activity on or with respect to land that is determined by the department to interfere harmfully with the discharge or stage characteristics of a stream, unless the occupation, filling, grading, of other activity is permitted under this part.

Further, MCL 324.3107 provides:

The department may promulgate rules and issue orders for the prevention of harmful interference with the discharge and stage characteristics of streams. The department may ascertain and determine for record and in making its order the location and extent of floodplains, stream beds, and channels and the discharge and stage characteristics of streams at various times and circumstances.

1984 AACS, R 323.1315 promulgated pursuant to the Act provides:

(1) An encroachment in the floodway which, acting alone or in combination with existing or future similar works, may cause harmful interference shall not be approve. In making this determination, an analysis shall be made for a range of discharges up to and including the 100-year flood discharge modified to reflect changes in land use and development reasonably anticipated to occur within the watershed before the year 2000.

(2) A bridge or culvert, constructed or reconstructed, shall be capable of passing the 100-year flood without causing harmful interference.

(3) An encroachment in the floodplain, landward of the floodway limits, which acting alone or in combination with existing or future works, does not cause harmful interference may be permitted

"Encroachment" is defined as:

Any structure, filling, grading, or deposition of materials in, upon, across, or projecting into a floodplain, channel, or floodway. 1984 AACS, R 323.1311(d)

"Harmful interference" is defined as:

Causing an increased stage or change in direction of flow of a river or stream which causes, or is likely to cause, any of the following:

(i) Damage to property.

(ii) A threat to life.

(iii) A threat of personal injury

(iv) Pollution, impairment, or destruction of water or other natural resources.

1984 AACS, R 323.1311 (h)

1984 AACS, R 323.1314 mandates the utilization of 100 year flood criteria and the rules adopt the federal flood insurance studies as approved floodplain delineation studies. This criteria was used by Mr. Morgan in this case. As stated in Exhibit 1, he would have no objection to the placement of fill 200 feet landward of the river, which corresponds to the floodway line. He further stated that if fill was desired closer than 200 feet a hydraulic analysis from a licensed engineer would be required (Exhibit 2). Apparently this was not pursued by Mr. Clear, nor did he attempt to rebut Mr. Morgan's assertions. Importantly, Mr. Morgan, in stating his limitations under Part 31, noted the existence of regulated wetlands on the majority of the site and deferred to Mr. Kolhoff in that regard. Part 31 was not addressed in Mr. Kolhoff's denial other than as a reference to a violation for the placement of fill and construction of a roadway. Although Mr. Morgan's opinion was not rebutted, Part 31 considerations are not disposative, or necessary in deciding this case in that the denial under Part 303 renders them moot.

1. I conclude, as a Matter of Law, the subject property is a regulated wetland and a permit is required for the proposed activity.

2. I conclude, as a Matter of Law, the proposed activity is not wetland dependent.

3. I conclude the proposed activity is otherwise lawful.

4. Based on the Findings of Fact, I conclude, as a Matter of Law, the proposed activity, placing 47,265 cubic yards of fill in a wetland and floodway/floodplain of the south branch of the Flint River will cause an unacceptable disruption to the aquatic resources associated with the wetland and the Flint River.

5. Based on the Findings of Fact, I conclude, as a Matter of Law, there is a feasible and prudent alternative to the proposed activity, namely utilizing existing upland on the subject parcel.

6. Based on the Findings of Fact, and having balanced the reasonably foreseeable benefits and detriments of the proposed activity, I conclude, as a matter of Law, the project in not in the public interest.

Based on the above Findings of Fact and Conclusions of Law, it is proposed that a final order be entered denying the Petitioner a permit to pursue the activity proposed in the Application for Permit.

Date: 6/18/97 _________________________________________

Richard A. Patterson

Administrative Law Judge

1. Staff findings June 6, 1996

2. Inter-office communication D. Morgan to T. Kolhoff June 5, 1996

3. Public Notice

4. Letter Dr. and Mrs. O'Leary to DEQ March 26, 1996

5. Project review Report

6. Elevations draw by T. Kolhoff

7. Certified letter denying permit

8. Board of photographs of site

9. Lapeer Township zoning ordinance summary of district requirements

10. Aerial photograph with upland boundary depicted