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IN RE: Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (Formerly the Goemaere-Anderson Wetland Protection Act [203])

Petition of Raymond Danyo

File No. 93-04-0128

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at a session of the Office of Administrative Hearings

held in Lansing, Michigan, on the 26th day of

December, 1995, Richard G. Lacasse, Chief Administrative

Law Judge Presiding

The above-entitled matter has been the subject of a contested case hearing resulting in a Proposal for Decision dated August 29, 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. The Petitioner filed exceptions on September 25, 1995. The Department did not file exceptions.

The Chief Administrative Law Judge of the Office of Administrative Hearings has considered the Proposal for Decision, exhibits, submissions, exceptions 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 August 29, 1995, including the findings of fact and conclusions of law. The application for a permit filed by Raymond Danyo, File No. 93-04-0128 is DENIED.

Date: December 26, 1995 ____________________________________

Richard G. Lacasse

Chief Administrative Law Judge

IN RE: Goemaere-Anderson Wetland

Protection Act Appeal of

Raymond Danyo

Cause No. 93-04-1028

Kimberly Adams Colgate

Administrative Law Judge

This matter is a contested case hearing arising from the denial of a Wetland Act permit to fill a regulated wetland located on Caribou Lake, Detour Township, Chippewa County.

The hearing was conducted pursuant to the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, as amended, MCL 281.701 et seq; MSA 18.595(51) et seq.

1. The professional staff of the Department of Natural Resources is charged with the day to day administration of the Wetland Act. Mr. Roger Hack appeared on behalf of the Department.

2. Mr. Raymond Danyo appeared in propria persona. Mr. Danyo requested a contested case hearing pursuant to Section 17 of the Wetland Act.

Petitioner made application to fill on June 2, 1993. Said request to fill was denied on October 7, 1993. (Respondent's Exhibit 3) A request for contested case hearing was made on November 23, 1993.

Subject property is located in Detour Township, Chippewa County. The property is located on the eastern shore of Caribou Lake. Subject property is approximately one-half acre and is part of a 40 acre parcel owned by Petitioner. The 40 acre parcel is depicted on Petitioner's Exhibit 4, and the one-half acre for which a permit is sought is marked as B on that Exhibit. The one-half acre parcel is depicted on Petitioner's Exhibit 3. The two geometric shapes showing on Petitioner's Exhibit 3 are unregulated uplands, and the portion shaded in red is the area Petitioner seeks to fill. The area marked new septic field on Petitioner's Exhibit 3 is an area consisting of approximately 5 acres, and is an upland, not subject to regulation. These 5 acres are part of Petitioner's 40 acre parcel and are depicted with a pink box and with an X in the center on Petitioner's Exhibit 4. These two areas can also be seen on page 7 of Respondent's Exhibit 1. The "geometric shapes" which are uplands are depicted in green, and the 5 acre upland area is depicted on that Exhibit in pink.

Petitioner seeks to place fill to a depth of six inches on the one-half acre site, depicted with red shading on Petitioner's Exhibit 3. A 25 foot by 40 foot house would fit on the upland marked as 1 and a 20 foot by 30 foot barn would fit on the upland marked as 2, both on Petitioner's Exhibit 3. Petitioner testified that he had enough room to build on the uplands, but he wanted to fill the remaining area. Respondent would allow Petitioner to place fill in the wetland for a driveway between the two uplands, as well as for the placement of a sewage effluent line, well and water lines to the upland area. The proposed driveway is marked as number 3 on Petitioner's Exhibit 3, and the utility lines by a green line on Petitioner's Exhibit 3. Respondent opined that filling in the wetland between the two uplands and placement of the utility lines would cause minimal disruption to the wetlands.

Petitioner bases his argument on the notion that there exists a surplus of wetlands in the State of Michigan. This opinion was not adequately substantiated. Petitioner further feels that he has substantially improved the 40 acre parcel, which indirectly benefits the public use of Lake Caribou.

A wetland means 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. MCL 281.702; MSA 18.595(52)

Subject property is contiguous to Caribou Lake.

Petitioner employed Ellen Elliott Weatherbee, Weatherbee's Botanical Trips and Survey to perform a wetland determination on subject property. The findings of said delineation are contained in Respondent's Exhibit 1. Ms. Weatherbee prepared a map of subject property, dividing the parcel into 4 Plots. Her findings were as follows:

Plot #1 shows up in a band across the middle of the lot and in the area west of the trailer. The northern 130 feet of this band (closest to the road) is the driest portion of the property until reaching the Uplands behind the trailer. Just east of the trailer begins the Upland, but the owner prefers to build closer to Caribou Lake.

Plot #2 runs along side the road and between the two portions of Plot #1. It contains standing water and is very wet.

Plot #3 consists of the very wet, open marsh along the lake's edge.

Plots #1, 2 and 3 are all cut-over cedar forest. The very wet areas have been marked on the site with blue/white flagging.

Plot #4 contains Upland plants and has not been cut.

There is existing fill at the end of the road and for the trailer site. There is a cleared site just west of the trailer for the placement of the septic tank, as per suggestion of Lee Mason of the Chippewa County Health Department.

The National Wetlands Inventory of the U.S. Department of the Interior shows Wetlands on an area east of the filled trailer site. The wet area is marked (on the map attached to Respondent's Exhibit 1) as PF04B. This indicates that the area is palustrine, forested, needle-leaved evergreens in a saturated wetland. Ms. Weatherbee, agreed with this, although the bands of plot #1 are somewhat drier than the surrounding very wet areas.

Mr. Craig Outwater testified on behalf of the Department of Natural Resources. Mr. Outwater is an Analyst from the Newberry District of Land & Water Management, Department of Natural Resources. He has been employed in that position for eighteen months. Prior to that, he was employed for eighteen years as a soil scientist by the Department of Agriculture. In that capacity he performed training, soil mapping and wetland delineations for the Environmental Protection Agency, the Corps of Engineers and the Department of Natural Resources. Mr. Outwater agreed with the report issued by Ms. Weatherbee, except he delineated the uplands depicted as the geometric shapes on Petitioner's Exhibit 3, which he felt had been erroneously characterized as wetlands. The delineated uplands are also marked with green marking on the plot map found on page 7 of Respondent's Exhibit 1. This determination was made by Mr. Outwater pursuant to a site inspection performed at subject property.

It is this hearing officers finding of fact that subject property, except for the areas depicted on Petitioner's Exhibit 3 with geometric shapes is a wetland subject to regulation. There also exists approximately 5 acres of unregulated uplands east of subject one-half acre parcel.

The Act contains criteria for the review of permit applications and mandates that findings be made regarding each criteria. Section 9(1) provides:

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 activity is in the public interest, is made by applying the criteria discussed in the Wetland Protection Act at Section 9(2). That provision states:

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.

Based on the parties' testimony, there is no public need for this project. There are other reasonable alternatives available for Petitioner to accomplish his purpose.

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

Petitioner has enough room on existing uplands to construct a house and a barn. Further, Respondent is willing to grant a permit to fill within the wetland between the two upland parcels for a driveway and to grant a permit to fill for the needed utility connections.

(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.

There wold be no public benefit to granting Petitioner's request to fill. There would be irreparable harm to the wetlands.

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

Mr. Outwater testified that filling the subject property would have a negative effect on the wetlands.

Petitioner offered no testimony, other than self-serving statements, to contradict the negative impact of filling.

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

The only negative impact of filling would be that previously referenced regarding elimination of a wetland when a feasible and prudent alternative exists.

(f), (g) and (h) The size of the wetland, the amount of remaining wetland in the general area and the proximity to local waterways have previously been addressed.

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

There is no economic value of the project to the public. The detriment to the public interest has been referenced in this opinion.

1. The Goemaere Anderson Wetland Protection Act, as amended provides the standards for permit consideration. The Petitioner has applied for a permit to fill pursuant to Section 5 of the Act.

2. The proposed fill area on subject property is a wetland.

3. Petitioner's request for a permit should be denied because:

(a) He has failed to establish that the activity is in the public interest;

(b) The permit should not be issued because the proposed activity is not primarily dependent upon being located in a wetland; and

(c) There are feasible and prudent alternatives.

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Kimberly Adams Colgate

Administrative Law Judge

Date: 8/29/95

1: Wetland Protection Guidebook, Michigan Department of Natural Resources.

2: Newspaper Articles (No date or source) entitled, "A Surplus of Wetlands."

3: Meridian Consultants, Engineering Survey.

4: Northwoods, Inc. Survey.

1: Delineation for Raymond Danyo, Part of Government lot #4, prepared by Ellen Weatherbee.

2: Letter from Roger Hack, Regional Supervisor, Land & Water Management Div. to Raymond Danyo, dated June 15, 1994.

3: Letter from Cary Gustafson, Land & Water Management Division, District 4 Representative to Raymond Danyo, dated October 7, 1993.