IN RE: Goemaere-Anderson Wetland Protection Act

Appeal of Jack R. Hammond - File No. 87-7-91W

The Natural Resources Commission, having considered the Proposal for Decision dated June 1, 1990, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in is 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. 87-7-91W, dated June 1, 1990, attached hereto.)

December 6, 1990
Date

_________________________
Thomas J. Anderson, Chairman
Natural Resources Commission

IN RE: Goemaere-Anderson Wetland Act Appeal of Jack R. Hammond

File No. 87-7-91W

Proposal for Decision

Dated: June 1, 1990
William C. Fulkerson
Administrative Law Judge

This matter is a contested case arising from the application and subsequent denial of a permit to place approximately 1300 cubic yards of fill in a wetland, contiguous to Houghton Lake, Section 13, Lake Township [T23N, R4W], Roscommon County, Michigan.

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

The filling of a portion of wetlands is controlled by the Goemaere-Anderson Wetland Protection Act. The Act controls the filling of wetlands in 281.705 Sec 5 (a-d).

Sec. 5 Except as otherwise provided by this act or by a permit obtained from the department under sections 7 to 12, a person shall not:

a) Deposit or permit the placing of fill materials 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.

(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.
(b) The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity
(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.
(d) The probable impact of each proposal in relation to the cumulative effect created by the other existing and anticipated activities in the watershed.
(e) The probable impact on recognized historic, cultural, scenic, ecological, or recreational values and on the public health or fish or wildlife.
(f) The size of the wetland being considered.
(g) The amount of remaining wetland in the general area.
(h) Proximity to the waterway.
(i) Economic value, both public and private, of the proposed land change to the general area.

(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.

Mr. Jack R. Hammond [Petitioner] filed a permit request with MDNR to fill three portions of his property adjacent to Houghton Lake, Roscommon County. Mr. Hammond's home is built on the shore of Houghton Lake. The subject property is across the road, where he has a large pole building, garden site, and three areas that he is proposing for fill. Some tilling, clearing, and filling of the property has already been done. An application was filed with MDNR on May 27, 1988, to place more fill, approximately 1300 cubic feet, on approximately one-half acre of the 1.6 acre tract. The areas proposed for fill are behind the garden and polebarn. Public Notice was sent to interested parties on July 20, 1988 for comment on the project.

On August 12, 1988, Fred Gottschalk, MDNR, Land and Water Management Division , Mio Field Office, went on site, did an investigation and submitted a Project Review Report. From his investigation, Mr. Gottschalk recommended that a permit not be issued. "I didn't think fill is justifiable since existing loam could be planted to some fruit trees. This appears to be filling just to fill and alternatives exist. Deny." See Joint Exhibit 4. He testified he walked the site, took soil samples, evaluated the water quality and cumulatve effects. A letter issued by the MDNR Mio Office, and in response to that of denial was denial Mr. Hanmnd has requested a contested case hearing. The hearing was held on January 4, 1990. The findings of the Administrative Law Judge follow.

The area of wetlands involved in this application approximates one-half acre and is contiguous to Houghton Lake, Roscommon County. Visually it was apparent to the Department that this land area is considered contiguous to Houghton Lake. A topographic map of the area supports this conclusion. Although physically separated from the lake by a road and old f ill, it is clear that the area was once a large wetland complex from the shore of Houghton Lake inland for some distance. The area had been disturbed and filled over the years. The soil borings showed the soils to be hydric-saturated muck with saturated sand below. Mr. Gottschalk testified at the hearing he used two primary considerations to determine whether the land was wetland; (1) soils/hydrology and (2) vegetation. He stated both considerations were met, although the vegetation was disturbed. Based on his investigation, a determination was made that the low areas proposed for fill are wetlands and are contiguous to Houghton Lake.

He discussed the potential adverse effects of the fill. The potential negative wildlife habitat impact relates to nesting, feeding, resting, brood rearing and cover areas for a variety of species. The potential negative water-quality impact would be the "probable cumulative effect" of filling the wetlands of the area. Filtration of the run-off to the lake is important to the purity of the lake water. If the proposed areas were filled, that filtration ability would be lost. Mr. Gottschalk further testified that, "a sizeable area had already been filled on this property, it appeared to be usable land." He further testified that Mr. Hammond's primary intent for the land is "to expand his lawn, plant fruit trees and berry bushes." He believed the land could be used for these purposes without filling.

Mr. Hammond testified that he has "cleaned-up and thinned the vegetation." If left in a natural state, the soils on Mr. Hammond's property would support wetland vegetation, according to Department testimony. The fact that Mr. Hammond testified that he assumed "he had a permit to complete fill of the area" after his building was constructed, only proves that there was no intention to do illegal filling of the adjacent wetland areas. In short, Mr. Hammond believed he should not be limited in the use of his property.

During final arguments, the Petitioner asserted that an inadequate amount of time was spent on the inspection site (20 minutes). Additionally, Petitioner asserts that while soil borings were done, they were not reflective of a true sampling of the area for a wetlands permit determination. The Petitioner offered no evidence to show that Mr. Gottschalk's conclusion was incorrect. He testified, based on his extensive experience, that he did not need a long, intensive investigation to make a determination.

There was testimony, supported by Petitioner's photographic exhibits 1 and 2, that others were filling at a number of area sites within close proximity to the Hammond property. Mr. Hammond testified that he could see no reason why his small lots could not be filled, since others were doing so much filling. There was no evidence as to whether the other locations were regulated wetlands or if they had obtained a permit. There is a national and state concern for the preservation of wetlands; and filling of those wetlands permanently alters or eliminates the ecological system that many organisms, plants, fish, and wild animals live in. It is not our function to speculate on those matters we have no proof of, but rather to deal with this case and the facts presented in relationship to the Wetlands Protection Act. Mr. Gottschalk testified he was unaware of most of the sites identified by Mr. Hammond. He could not tell whether they were regulated, permitted or illegal. He believed his decision was consistent with the Department's review of applications. A valid comparison cannot be made without site specific data. Each site must be evaluated on its own merit.

There have been wetlands filled on the Hammond property already. Mr. Gottschalk believed the existing fill was adequate to plant fruit trees, berry bushes, and grasses--which was the bulk of the Petitioner's goal. He did not view this project as being wetland dependent, and did believe that much of the concern over this matter related to aesthetics. Mr. Gottschalk stated that, "the Petitioner must show that no significant adverse impact would take place in order to receive a permit." Finally, Mr. Gottschalk testified that if he had done a like evaluation somewhere else, he would have also denied that permit.

I find, as a matter of fact, that the area proposed for fill is a wetland therefore, subject to the review criterion of the Wetlands Protection Act in determining whether to issue a permit for filling.

1. The petitioners proposed fill activity involves wetlands contiguous to Houghton lake and thus a permit is necessary, pursuant to the Act.
2. Based on the record and the foregoing Findings of Fact, I conclude as a matter of law, that an unacceptable disruption of the aquatic resources will not occur if this permit is granted.
3. Once it is determined than an unacceptable disruption will not occur, a permit may only be issued if the proposed activity is wetland dependent or no feasible and prudent alternative exists, Sec 9 (4) (b).

The proposed activity does not require a wetland for its conduct, thus, it is not wetland dependant.

The Department found, and I conclude as a matter of law, that feasible and prudent alternatives exist. The Petitioner has land that has been substantially filled in the past. He proposes to "finish it off" by grassing and planting fruit trees and/or berry bushes. It has not been shown that he cannot accomplish these goals on the available upland. For that matter, there is no prohibition against the planting of upland. For that matter, there is no prohibition against the planting of fruit trees or berry bushes in the wetland. Tilling, cultivation and planting for agricultural purposes are not prohibited. Viewing Mr. Hammond's property, he has been allowed substantial use of the property, just a lesser amount than he would prefer. Viewing the land as a whole, he has alternatives for the use of his property that do not require wetland filling.

As previously found, there will not be an unacceptable disruption of the aquatic resources, cumulative impacts are but one of the criteria viewed in making that determination. Thus, cumulative effects, while an overriding policy consideration for the Act, are not determinative.

As to the need for the Department to show a significant adverse impact advanced by the Petitioners, it is not the standard. The Act is a prohibitive Act. Those activities which cause an unacceptable disruption are prohibited. Only those wetland dependant or activities where no feasible and prudent alternative is available are permissible. In that context, alternatives are viewed in light of the existing uses of the applicant's property. The feasible and prudent alternatives are not measured by the maximum possible use of the property. Wetlands restrictions are like zoning. They impose limitations on use. To demonstrate no feasible and prudent alternative exists, an applicant must show truly unusual circumstances or extraordinary cost. Thus, I conclude the applicant has failed to show the absence of feasible and prudent alternatives.

Based on the preceding Findings of Fact and Conclusions of Law, it is proposed that the denial of Mr. Jack Hammond's permit by the Department, for filling in a wetland be sustained.

Dated: 6/1/90

William C. Fulkerson
Administrative Law Judge

1. Foamcore mounting board, 15" x 20", sketch of 1.6 total parcel of land..

2. Foamcore mounting board, 10" x 20", displays ten 3 ½" x 4 ½ " color photographs.

3. A photo-copy of the Public Notice from the Michigan Department of Natural Resources on File No. 88-7-91W, dated July 20, 1988 and a photo-copy of Application for Permit signed by Mr. Jack R. Hammond on May 19, 1988.

4. Photo-copy of Project Review Report, application number 88-7-91W, dated August 12, 1988.

5. Photo-copy of letter sent to Mr. Jack R. Hammond from Fred W. Gottschalk, dated August 04, 1988.

1. Foamcore mounting board, 5" x 20", displays five 3 ½" x 4 ½" color photographs.

2. Foamcore mounting board, 15" x 20", displays fifteen 3 ½" x 4 ½" color photographs