STATE OF MICHIGAN

DEPARTMENT OF ENVIRONMENTAL QUALITY

OFFICE OF ADMINISTRATIVE HEARINGS

SUBJECT: Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act, (NREPA), 1994 PA 451, as amended, (formerly the Inland Lakes and Streams Act [346]).

Petition of Ludwig C. Culinski on the permit issued to the Genesee County Road Commission.

File No. 94-11-94

OPINION AND ORDER

This matter is a contested case concerning the petition of Ludwig C. Culinski for review of a permit issued by the Department of Environmental Quality to the Genesee County Road Commission (Road Commission) to install a culvert under Rolston Road, Fenton Township, Genesee County, Michigan. The culvert serves as a connection between Loon Lake and Squaw Lake. This matter was submitted to this Tribunal on a stipulated record consisting of the Department's entire administrative file. Briefs were submitted by the Parties. The Loon Lake Property Owners Association (Intervenor) filed a Motion to Intervene in this matter. The Motion to Intervene was granted, but the Intervenor was restricted to the record submitted.

JURISDICTION

The petition for a contested case hearing was filed under the provisions of Part 301 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30101, et seq.; MSA 13A. 30101, et seq.,. This Opinion and Order is written pursuant to the provisions of the Michigan Administrative Procedures Act., MCL 24.201 et seq.; MSA 3.560 (101), et seq. Pursuant to the Michigan Administrative Procedures Act, this is the Final Order of the Department of Environmental Quality in this matter. MCL 24.285; MSA 3.560(185).

PARTIES

Mr. Ludwig C. Culinski (Petitioner), as a riparian owner on Loon Lake, is an "aggrieved party" under section 30110 (2) of Part 301, MCL 324.30110; MSA 13A.30110. The Petitioner is represented by Phillip H. Beauvais, 111, Esq. The Intervenor appeared in the person of Mr. Patrick Hagedorn. The Department of Environmental Quality (Department) appeared in the person of Dr. Gary F. Marx, Land and Water Management Division, District 11 Supervisor. As indicated, this matter was submitted on a stipulated record and therefore, there was no testimony presented nor was a formal contested case hearing conducted. The undersigned has reviewed both the entire record and the Parties briefs.

FINDINGS OF FACT

This case has a long and contentious history. Sometime in 1990 the Road Commission replaced a culvert at the aforementioned location. It is alleged that the replacement culvert was installed at a significantly higher elevation than the previous culvert and, as a consequence, flooding occurred on properties surrounding Loon and Crane Lakes. Subsequently, various citizens, citizens groups, municipalities, law firms and the Road Commission embarked on a series of efforts aimed at solving the flooding problem. The steps taken went to the point of a criminal investigation of alleged tampering with the installation culvert and a petition to establish legal lakes levels under Part 307 of NREPA. MCL 324.30702, et seq.; MSA 13A. 30702, et seq.

In an attempt to resolve the problems associated with the 1990 culvert, the Road Commission applied to the then Department of Natural Resources for a permit to place another steel pipe culvert, measuring 36 inches in diameter and 44 feet in length, adjacent to the existing culvert under Rolston Road. This additional culvert would be at an elevation 10 inches below the existing pipe. The Road Commission had determined that the permit was required under the then Inland Lakes and Streams Act as the purpose of the additional culvert was to lower the levels of both Loon and Crane Lakes by approximately 10 inches. This activity will be termed the proposed activity.

The proposed activity addressed the concerns expressed predominantly by residents on Crane Lake that the lake level had risen significantly. The residents attribute the rise to the installation of the 1990 culvert at a higher elevation. Conversely, most residents of Loon Lake expressed the opposite concern, specifically that the lowering of Loon Lake would be detrimental. However, the Petitioner whose property is on low ground on the shore of Loon Lake, aligned himself with those who desire a lowering of the lake levels.

A public hearing on the Road Commission's application for a permit was held by the Department on April 26, 1994. Numerous individuals appeared and provided comments either in support of lowering the lake levels or maintaining them as they then existed. The Crane Lake residents claimed loss of beaches, breaching of sea walls and damage to homes from the high water. The Loon Lake residents argued the lowering of the levels would impair an already shallow lake to the point of negatively impacting boating and recreation as well as damaging adjacent wetlands. While there was much contention and rhetoric, there was little tangible or scientific evidence to support either proposition. The Department studied the situation and concluded the proposed activity would cause a ten inch drop of lake levels which would cause significant impairment of the wetlands adjacent to Loon Lake. Based on that conclusion, a modified permit was issued to the Road Commission which allowed the installation of the additional culvert 5 inches lower than the existing culvert. This activity will be termed as the permitted activity.

The Department, in its letter enclosing the modified permit (Exhibit Index Number 21), states:

The Department determined that lowering by 10 inches would have substantially drained many of the wetland contiguous to Loon Lake. We further believe that the 5 inch decrease will provide substantial relief for the flooding on Crane Lake.

However, because very little reliable information was available concerning historic lake levels on the two lakes, and the decision was based primarily on visual observations of conditions on the two lakes, the Department strongly recommends that a legal lake level be sought pursuant to the Inland Lake Level Act, 1961 PA 146. This process would provide for the engineering and environmental studies necessary to set the most appropriate lake level, one that would meet the needs of both the riparian owners and the natural resources of the lake system.

The foregoing accurately states that the issue of the lake levels should be decided under the then Inland Lake Level Act, now Part 307, Inland Lake Levels, of 1994 PA 451, as amended. The issue before this Tribunal is whether the Road Commission is entitled to either the permit for which it applied or for which it received. To make this determination, it is necessary to examine both activities under the criteria of Part 301. While both the Petitioner and the Intervenor believe that the final agency decision on the permit can resolve the problems associated with the lake level, that is not the purpose or intent of Part 301.

PART 301 ANALYSIS

Under section 30102 , MCL. 324.30102; MSA 13A. 30102, a permit is required to:

(d) Create, enlarge, or diminish an inland lake or stream

(e) Structurally interfere with the natural flow of an inland lake or stream

(f) Construct, dredge, commence, extend, or enlarge an artificial canal, channel, ditch, lagoon, pond, lake, or stream, or similar waterway where the purpose is ultimate connection with an existing inland lake or stream, or where any part of the artificial waterway is located within 500 feet of the ordinary high-water mark of an existing inland lake or stream.

I find, as a Matter of Fact, a permit is required for both the proposed activity and the permitted activity under each of the three above quoted sub-sections.

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Section 30106 of Part 301, MCL 324.30106; MSA 13A.30106 provides the prerequisites to issuing a permit.

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights..

There is no evidence that the waters of Loon and Crane Lakes are impressed with the public trust. Given this, it is noted that there was little proffered indicating the project would adversely affect the public trust, other than the opinion of James R. Kaercher on the impact on fish if the lake levels were reduced 10 inches (Part of Exhibit Index Number 7). The Department's primary objections to the lowering of the culvert is the alleged adverse impact on wetlands adjacent to Loon Lake and not any adverse affect to the public trust. However, as there is no evidence either Loon or Crane Lakes are public trust waters, a finding on the project's impact in this regard is inappropriate.

The Petitioner's proposal would affect riparian rights as it pertains to navigation, recreation and fisheries due to limitations placed on access and use of the surface waters. Conversely, the permitted activity which allows for the lowering of the culvert 5 inches will not effect the lake levels to the point of impairing navigation, recreation or fisheries. Therefore, I find, as a Matter of Fact, the permitted activity, based upon the record, will not adversely affect riparian rights.

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The next analysis involves the specific effects of the permitted activity on the criteria contained in section 30106:

In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This act shall not modify the rights and responsibilities of any riparian owner to the use of his/her riparian water.

The Department file, which constitutes the record in this matter, includes a number of documents addressing the above listed criteria. Among them is an exhaustive study prepared by Mr. Don Edwards, a riparian owner on Loon Lake, on behalf of the "overwhelming majority" of Loon Lake property owners (Exhibit Index Number 12). Attached to the report are underlying data addressing the historical background of lake levels, rainfall levels, floodplain maps and studies, soil composition and aerial maps. Based on his review, Mr. Edwards concludes a lowering of Loon Lake 10 inches would have an adverse impact on property values, weed problems in the lake would increase and that surrounding wetlands would be negatively effected.

In his report, Mr. Edwards alludes to the lack of a true engineering study and disputes the propriety of reliance on static elevations performed in the past. He attributes much of the fluctuation in lake levels to factors such as rainfall and temperature. Mr. Edwards feels much of the property damage alleged on Crane Lake may be due to the composition of soils surrounding the lakes, as opposed to high water levels. He states the aerial photographs demonstrate higher lake levels in an area greater than that confined to Loon and Crane Lakes. Lastly, he points out that lake levels are cyclical in nature. The foregoing considerations, he contends, diminish any possible impact of the culvert at the level allowed by the permit.

A similar detailed report dated April 26, 1994 (Exhibit Index Number 7) by the Concerned Crane and Loon Lake Homeowners was submitted to the Department in support of the proposal to lower the lakes 10 inches. This report contains a number of lake level readings of both lakes, demonstrating an increase of over one foot between 1989 and 1993. It also contains a list of riparian owners who made statements that fishing, boating, swimming and water skiing were prevalent during historic lake levels previous to 1989 and two Crane Lake residents who have suffered damage to their homes since 1990. There is also a list of numerous riparian owners on Crane Lake that either repaired, replaced or raised docks since 1990 or have experienced damage to sea walls in the same period. The report further addresses perceived possible pollution from septic systems and loss of native vegetation due to high water.

Dr. Gary Marx conducted the public hearing on behalf of the Department, performed a site visit and prepared a Project Review Report as to the condition of both Loon and Crane Lakes. (Exhibit Index Number 14). The findings Dr. Marx made discuss the pros and cons of the proposal to lower the culvert 10 inches and reaches the conclusion that lowering the culvert 5 inches will provide some relief on Crane Lake without significant harm to the Loon Lake wetlands or the riparian properties on Loon Lake. Again, it bears repeating that all issues both pro and con were addressed by a broad based and large group of participants at the public hearing.

The foregoing analysis on the both the proposed activity and the permitted activity necessarily involves discussion on the possible effects on Loon and Crane Lakes. The permitted activity will necessarily effect waters flowing out of Loon and Crane Lakes by initially increasing and facilitating continual flow resulting in lower lake levels. Lowering the lake levels 5 inches will not adversely effect recreation since residents have stated recreation was prevalent previous to the higher lake levels occurring after 1989. As to fish, the aforementioned letter addresses the impact in terms of the effects of lowering the lake levels 10 inches. Lowering them only 5 inches, assumedly would alleviate this concern. There is no evidence or contention that there would be any other wildlife impact and a finding on this issue is not possible. I, find, as a Matter of Fact, the permitted activity will not cause an adverse impact on recreation or fish and may increase their respective values.

Aesthetics is a subjective criteria. The disparity of opinion of various residents exemplifies this. Some of the residents, for various reasons would prefer the water level to be higher or lower than others.

There is nothing presented to demonstrate any possible effects, adverse or otherwise on local government, agriculture, commerce or industry.

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Finally, section 30106 prohibits the Department from issuing a permit, "if the proposed project or structure will unlawfully impair or destroy any of the water of other natural resources of the state." MCL 324.30106; MSA 13A.30106. To implement this Part of section 30106, the Department promulgated Administrative Rule 4, 1985 AACS, R 281.814.

In each application for a permit, all existing and potential adverse environmental effects shall be determined and a permit shall not be issued unless the department determines all of the following:

(a) That the adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible

(b) That the resource affected is not a rare resource.

(c) That the public interest in the proposed development is greater than the public interest in the unavoidable degradation of the resource.

(d) That no feasible and prudent alternative is available.

Subsection (a) of the Rule requires adverse effects of the proposed project to the public trust must be minimal and mitigated to the extent possible. I have found the record is silent on whether Loon and Crane Lakes are impressed with the public trust so a finding in this regard is not necessary. Based on the previous findings in regard to section 30106, I find, as a Matter of Fact, as to subsection (a), any adverse effects to the environment will be minimal and mitigated to the extent possible by placing the additional culvert 5 inches lower that the existing one.

As to subsection (b), the record is silent on whether the area of the proposed project is a rare resource and a finding in this regard is not possible.

Subsection (c) requires the public interest in the proposed project be greater than the unavoidable degradation of the resource. The permitted activity project is designed and will, in fact, improve the affected resources as opposed to degrading them. Therefore, I find, as a Matter of Fact, there is a significant interest in enhancing the resources and this interest outweighs any minimal alteration of the ecology that may result from the permitted activity.

Subsection (d) requires a finding that no feasible and prudent alternative exist. I find, as a Matter of Fact, that placing the additional culvert 5 inches below the level of the exiting one is a feasible and prudent alternative to the proposed activity.

CONCLUSIONS OF LAW

1. I conclude, as a Matter of Law, that the permitted activity is regulated under Part 301 for the reasons stated in the Findings of Fact. Therefore, a permit is required for the activity.

2. I conclude, as a Matter of Law, the application for a permit was filed and processed correctly.

3. I conclude, as a Matter of Law, Ludwig Culinski, as an aggrieved party, is the proper Petitioner in this matter.

4. I conclude, as a Matter of Law, that the permitted activity will not adversely affect riparian rights under the criteria of Part 301.

5. I conclude, as a Matter of Law, the permitted activity is consistent with the criteria contained in 1985 AACS, R281.814.

6. I conclude, as a Matter of Law, that pursuant to Rule 4(d), the permitted activity is a feasible and prudent alternative to the proposed activity of placing the additional culvert be 10 inches below the existing culvert.

FINAL DETERMINATION AND ORDER

Based on the above Findings of Fact and Conclusion of Law, it is determined that the modified permit issued to the Genesee County Road Commission allowing for an additional culvert at an invert elevation 5 inches lower than the invert of the existing culvert (elevation 870.86 Rowe Engineering datum) connecting Loon Lake and Squaw Lake can be licensed pursuant to Part 301, Inland Lakes and Streams, of 1994 PA 451. Therefore, it is ordered, the petition for a contested case hearing filed by Ludwig C. Culinski on the issuance of said modified permit is DISMISSED, with prejudice.

June 19, 1998

Richard G. Lacasse

Chief Administrative Law Judge