______________________________________________________________________________

SUBJECT: Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended, Part 301, Inland Lakes and Streams.

Petition of Anthony Harby

File No. 93-14-0780

______________________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated December 11, 1996. In a letter dated December 13, 1996, the Office of Administrative Hearings gave the Parties to January 10, 1997, to file written Exceptions to the Proposal for Decision. Mr. Harby filed his Exceptions on January 7, 1997, the Department of Environmental Quality did not file Exceptions. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a 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 Petitioner's Exceptions, exhibits, pleadings and arguments of the Parties. 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.

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 December 11, 1996, is adopted by reference and incorporated into this Final Order.

2. As set forth in the Proposal for Decision (pages 9-10), the Petitioner shall be issued a modified permit to install a shallow by pass stream through the wooded area from the west 1/3 of Lot 31 to the border of the Palustrine emergent wetland. The permit shall also allow for up to three (3) small ponds in which the Petitioner could plant rice or other like plants. The permit shall be issued upon Mr. Harby's providing the Department with an acceptable site plan. That site plan shall show the exact location and size of the alternative generally outlined on pages 9 and 10 in the Proposal for Decision.

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

Dated: January 17, 1997 /signed

Richard G. Lacasse, Chief

Administrative Law Judge, MDEQ

Office of Administrative Hearings

______________________________________________________________________________

SUBJECT: Natural Resources and Environmental Protection Act, 1994, PA 451, as amended; Part 301, Inland Lakes and Streams

Petition of Anthony Harby

File No. 93-14-0780

______________________________________________________________________________

Richard A. Patterson

Administrative Law Judge

This case involves the denial of a request by Anthony Harby to "Clean out private existing drain, straighten, widen and deepen, put in at least three silt traps...that will all be on west 1/2 of Lot 31. This private drain on west 1/2 of Lot 31 will be approximately 8 feet wide and 4 feet deep and empty into Swan Creek. The spoil will be used to make a berm on west 1/2 of Lot 31 to prevent flooding and farm chemical runoff onto the Harby property..."

(Application for Permit, Exhibit R1-A).

The hearing was requested under the provisions of the Inland Lakes and Streams (Act), MCL 281.951 et seq. which is now Part 301 of the Michigan Natural Resources Environmental Protection Act (NREPA), MCL 324.30101 et seq., and the administrative rules. The hearing was conducted pursuant to the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560 (101) et seq., and

In addition to the above act, the property upon which the activity is proposed has been found to contain wetlands which are contiguous to, or within 500 feet of a lake or stream (Swan Creek). The letter denying the application addressed the criteria of Part 303 (Wetlands Protection). Therefore, even though the matter is captioned as coming under Part 301 (ILSA), both parts are considered in this Proposal for Decision.

Anthony Harby is the Applicant for a permit pursuant to the Acts, and the Petitioner in this contested case. He appeared in Pro Persona.

The professional staff of the Michigan Department of Environmental Quality (Department) is charged with the day-to-day implementation of the Acts. The Department was represented by Mr. Barry Horney, District Supervisor, Land and Water Management Division, Southeast Michigan District Office. The hearing was held on May 16 and 22, 1996.

Petitioner testified on his own behalf and was his only witness.

The Department presented two witnesses: Ms. Jennifer Beam, Fisheries Biologist, Michigan Department of Natural Resources and Mr. Ashok Punjabi, Environmental Engineer in the employ of the Department of Environmental Quality.

The Petitioner introduced 8 exhibits and the Department introduced 56. Virtually all of the Department's file was admitted by stipulation. A list and description of these exhibits is included at the end of this Proposal for Decision.

Petitioner's land is located Berlin Township, Monroe County, Michigan. Petitioner owns lots 26 through 31 of the Allure Subdivision. The proposed activity would involve the west 1/2 of lot 31. The proposal involves dredging approximately 70 feet of existing drain and 230 feet on the subject property which would serve to connect the existing drain or stream on the northerly border to Swan Creek. The excavation would be 6 feet wide and 4 feet deep. The spoils would be side cast to create a berm. The avowed purpose is to protect Petitioner's property from chemicals and sediment carried into the existing drain which currently discharges into Swan Creek downstream of the Petitioner's property. Apparently, at times the flow breaches the banks of the existing drain, resulting in flooding of Petitioner's property. Mr. Harby feels the proposal will enhance his ability to grow wild rice, among other things. He disputes the Departments position that the diversion will have adverse impacts and further claims he is exempt from regulation due to the project being part and parcel of agricultural activity.

In response to the application, the Department was willing to allow the proposal as applied for up to the border of the wetland. This would exclude the last 73 feet of the project and prevent the connection to Swan Creek. Petitioner claims the existence of a drain in that area and characterizes his proposal as merely maintaining or improving an existing drain.

The first issue for determination, therefore, is whether Petitioner's proposed activity is exempt as agricultural under both Parts 301 and 303 of the NREPA. MCL 324.30101 et seq. and MCL 324.30301 et seq.

In support of this claim, Petitioner testified he has, in the past, attempted to grow wild rice in cages in Swan Creek as depicted in Exhibits P-2 through P-6. He further testified to receiving a designation or number from the Farm Service Agency (FSA) of the U.S. Department of Agriculture. Although that agency did provide him Number 5225, Exhibit R-14 (letter from FSA to Mr. Horney) reveals that in order to receive a farm designation there must be tillable land present. Tillable ground was found on other tracks in section 10 of Berlin Township (Estral Beach area) owned by Petitioner. Therefore, the established number and designation appears to apply specifically to other properties, although the subject property was included in the application. Mr. Harby also submitted a letter from the Farm Service Agency dated April 19, 1971, stating wild rice could be grown on contract property without affecting contract payments (this exhibit was inadvertently not marked). Exhibit R-140 alludes to the fact that the FSA considers wild rice an agricultural commodity. The properties adjacent to the subject parcel to the west and north, owned respectively by Floyd Brancheau and Merlin Gaynier, both of whom object to the proposal, are agricultural. (Exhibits R-1F and R-1G). As to the subject parcel, Mr. Harby testified Monroe County requires a minimum of 2 acres for farm zoning and admitted that the subject parcel in under 2 acres and zoned residential. Regardless, he contends that, due to the fact that all the lots he owns comprise more than 2 acres, this parcel should qualify.

In response, the Department asserts the application for permit failed to mention any reference to agricultural activity or exemption (Exhibit R-1A) and there is no exemption for the filling of wetlands. Ms. Jennifer Beam testified her site observations indicated a lack of crop rows or cultivation activity. She characterized virtually all of the area as wetland, and took pictures which so indicate (Exhibits R-1-0). While Petitioner claims the dredging on his property would merely be improvement or maintenance of an existing drain, the testimony of Ms. Beam and her pictures belie that. Additionally, Mr. Ashok Punjabi testified the only drain he observed was the existing stream along the northerly border of the property.

Based on the above, it is apparent that any farming activity by way of attempting to grow wild rice, duck corn, snails and crayfish is merely incidental in that little of the property is utilized for that, as opposed to an overall use of the entire property. The Department is not attempting to prevent or regulate those activities. It does object, however, to the dredging and filling of the 73 feet between the northerly border of the wetland and the shoreline of Swan Creek. Whether the parcel is used for "farming" is not the issue to be addressed. Rather, the issue is whether the proposal is exempt under the agricultural exemption of either Part 301 or 303 of the NREPA.

Part 303 of NREPA, section 30304 provides for certain uses allowed in a wetland without a permit. As pertinent to this case, subsection (2)(E) provides for:

horticulture, silvaculture, lumbering, and ranching activities, including plowing, irrigation, irrigation ditching, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. Wetland altered under this subdivision shall not be used for a purpose other than a purpose described in this subsection without a permit from the department.

Petitioner's avowed purpose is to divert run-off from the existing stream or drain across his property and drain it into Swan Creek. There is no intent to irrigate and, as stated, what minor farming he engages in is not an issue. The aforementioned section provides for "minor drainage", which is defined by section 30301(b) to include:

ditching and tilling for the removal of excess moisture incidental to the planting, cultivating, protecting, or harvesting of crops or improving the productivity of land in established use for agriculture, horticulture, silvaculture, or lumbering.

The record does not reveal an established agricultural use or that the proposal will remove moisture or improve productivity. While on of the avowed purposes is to prevent flooding, the property is within the floodplain of Swan Creek (Exhibit R-4, FIRM). The testimony reveals flooding only occasionally occurs from overflow of the existing drain or stream to the north and varies with the level of Swan Creek. The diversion of water from the existing drain or stream will, if anything, contribute to a higher level of Swan Creek and will discharge any pollutants or chemicals up stream from the present discharge point and directly adjacent to or upon the subject property.

Therefore, I find, as a Matter of Fact, that the proposal is not minor drainage , nor will it serve to remove excess soil moisture or improve productivity. Further, it is not part and parcel of an established use for agriculture. The activity or use proposed is not, therefore, exempt under Part 303.

Similarly Part 301 exempts certain activities from regulation and the necessity of a permit. Those pertinent to this case are included in section 4. subsection (d) and (f), as follows:

(d) Construction or maintenance of a private agricultural drain regardless of outlet.

(f) Construction and maintenance of minor drainage structures and facilities which are identified by rule promulgated by the commission pursuant to section 11(1). Before such a rule is promulgated, it shall be approved by the majority of a committed consisting of the director of the department, the director of the department of agriculture, and the director of the state transportation department or their designated representatives. The initial rules shall be issued before July 8, 1973, and shall be reviewed at least annually thereafter.

For the reasons stated in the above Part 303 analysis, this proposed activity cannot be legitimately considered constructing or maintaining an agricultural drain.

I, therefore, find, as a Matter of Fact, that subsection (d) is not applicable. A review of AACS, R 281.817 which defines "minor drainage structure" exempted under subsection (F) also indicates that subsection is not applicable and I so find, as a Matter of Fact. The proposal is not a cross road culvert (a)(b)(e); a road side ditch (c) or a standard appurtenance for storm water runoff facilities, such as a manhole, catch basin or headwall (d).

Having found that none of the agricultural exemptions apply, the proposal of Petitioner and the alternative must next be analyzed under the criteria of both Parts 301 and 303. This is not to say two permits are required, but that the project must be analyzed under both parts. Blue Water Isle Co. v. DNR, 171 Mich App 426; 434 NW2nd 53 (1988).

The area of the proposed dredging is clearly wetland. Ms. Jennifer Beam, who reviewed the application for permit and prepared the project review report, so testified. The following exhibits entered on record also support that fact. R1-K (PRR), R1-H (Wetland Map), R-1-0 (Pictures). It is equally clear that the property borders on Swan Creek and is continuous. It is regulated by Part 303 of NREPA and a permit is required.

The act contains criteria for the review of permit applications and mandates findings be made with regard to each criterion.

Sec. 9 (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 pubic 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 project is in the public interest is made by applying criteria discussed in part 303. I find, as a matter of fact, a permit is necessary to engage in the activity requested, and it is otherwise lawful. There is no allegation the proposed activity is not otherwise lawful

(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.

(2) The benefit which Petitioner hopes to accomplish by the project is to prevent run off of chemicals from adjacent properties and flooding. The project will accomplish neither. By diverting the discharge from the existing drain or stream to the north from a point downstream to the immediate area of Lot 31 can only exacerbate flooding potential by directly discharging into Swan Creek. Assumedly, any chemical component would also be discharged directly into Swan Creek and, depending on the water level, onto Petitioner's property. The project will also severely disturb or destroy existing wetland both in respect to significant dredging and filling.

(a) I find there is no public or private need.

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

As indicated, the Department is willing to allow Petitioner to install a shallow by pass stream through the wooded area from the west 1/3 of Lot 31 to the border of the Palustrine emergent wetland. The Department would also allow for 2 or 3 small ponds in which Petitioner could plant rice and other anticipated plants. This alternative gives Petitioner virtually all of his proposal, but for the dredging of the last 73 feet which would connect the project to Swan Creek.

I find, as a Matter of Fact, that such an alternative is both feasible and prudent.

(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.

As stated, there appears to be no beneficial effect from Petitioner's proposal. The project he proposes will not prevent flooding or serve to prevent any perceived chemical deposition on the property. The detrimental effects would be the dredging and filling of the emergent wetland and increased water flow velocity to Swan Creek.

I find, as a Matter of Fact, the proposed activity will result in a permanent installation, which will provide no beneficial effects on either the public or private uses which the area is suited and will cause detrimental effects on the wetland.

On the other hand, the alternative proposal will provide an improvement in drainage and alleviate flooding by diverting overflow and will facilitate planting in the ponds, without the severe wetland disruption and the creation of a surface water connection to Swan Creek.

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

The Department expressed concern regarding an increasing number of proposed stream dredging projects and for canal creation in the area. This is a legitimate concern as to the Petitioner's proposal. However, the alternative will not create a surface water connection and, therefore, will not have any cumulative effect in that regard.

(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, cultural or ecological impacts and there appear to be none. The scenic impact is subjective. Obviously, the Department prefers the scenic value of the wetland and shoreline. Petitioner would prefer the channel and berm.

There is presently no recreational use and that consideration would be unaffected.

The public health will be unaffected.

Wildlife concerns were not addressed, and there appears to be none.

I find, therefore, there will be no probable impact on the above criteria.

(f) The size of the wetland being considered.

The precise size of the wetland was not addressed in the testimony. However, Exhibit R1-H indicates an irregularly shaped area approximately 600 by 150 to 300 feet.

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

Again, this consideration was not addressed on the record, except for the fact that the immediate surrounding area is predominantly residential and agricultural.

(h) Proximity to any waterway.

The wetland is adjacent to Swan Creek.

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

There would not appear to be any economic value to the public. While Petitioner asserts the proposal will facilitate his growing wild rice as a cash crop, it does not appear the proposal would enhance that activity any more than the alternative, which has been found to be both feasible and prudent.

(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 and 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 primarily dependent upon being located in a wetland. Feasible and prudent alternative analysis has been previously addressed.

Section 7 of the Act 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. MCL 281.957.

I assume the waters of Swan Creek are impressed with the public trust. The denial letter articulates this concern without specificity. There was no specific evidence the proposed project would adversely affect the public trust. The Department's primary objection to the proposal is the surface water connection which effects the considerations of the next section.

Section 7 of the Act also requires:

In passing upon the application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon the 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. MCL 281.957.

The paramount concern of the Petitioner's proposal is the surface water connection of the existing drain to Swan Creek. Such a connection would facilitate the run off of water and any chemicals therein at a discharge point upstream from the present outlet. Since Petitioner's proposal is for a shorter and more direct route of water drainage to Swan Creek, there would be less soil absorption of water and less resistance for surface water run off, which increases the water discharge rate and volume into Swan Creek. This would increase the potential for flooding and pollution.

There would not appear to be any effect on recreation, fish and wildlife, aesthetics, local government, commerce or industry.

Finally, Section 7 prohibits the Department from issuing a permit, "if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state." MCL 281.957. To implement this part of Section 7, 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) requires that adverse effects of the proposed project to the public trust must be minimal and mitigated to the extent possible. As previously set forth, I find, as a Matter of Fact, the proposed project will have an adverse impact on the public trust. Furthermore, it does not mitigate the adverse effects to the extent possible. Conversely, the feasible and prudent alternative discussed in the Proposal for Decision does not present any material adverse effects and provides mitigation of such effects to the extent possible.

As to subsection (b), I find, as a Matter of Fact, the area of the proposed project is not a rare resource.

Subsection (c) requires that the public interest in the proposed project be greater than the unavoidable degradation of the resource.

There is no public interest in the proposed project and, therefore, there is nothing to balance against the unavoidable degradation of the resources as discussed above.

Subsection (d) requires a finding that no feasible and prudent alternatives exist. As has been previously found, there is a feasible and prudent alternative to the proposed project.

1. I conclude, as a Matter of Law, the subject property is a wetland that is regulated by both Parts 301 and 303 as it is comprised of property both above and below the ordinary high water mark of Swan Creek. Thus a permit is required for the proposed activity.

2. I conclude, as a Matter of Law, that Petitioner, Anthony Harby, is the proper petitioner in this matter. I also conclude the application for permit was properly processed.

3. I conclude the proposed activity is not exempt from the Department's regulation under the agricultural exemption found in Part 301 and 303 of the NREPA. MCL 324.30103 and MCL 324.30305

4. I conclude, as a Matter of Law, that the proposed activity is not in the public interest and will cause an unacceptable disruption to the aquatic resources pursuant to Act 451 of 1994, Part 303 Wetland Protection.

5. I conclude, as a Matter of Law, the proposed activity is not wetland dependant and that a feasible and prudent alternative exists.

6. I conclude, as a Matter of Law, the proposed activity is otherwise lawful.

7. I conclude, as a Matter of Law, the proposed activity will adversely affect the public trust or riparian rights, under the criteria addressed above, pursuant to Act 451 of 1994, Part 301 Inland Lakes and Streams and 1985 AACS, R 281.814.

Based upon the above Findings of Fact and Conclusions of Law, it is proposed that a final order be entered granting Petitioner a permit for the alternative detailed in the Proposal for Decision.

Dated: December 11, 1996 /signed

Richard A. Patterson

Administrative Law Judge

P-1 Letter from Monroe County Drain Commissioner.

P-7 Bag of wild rice.

P-8 Box of commercial wild rice.

P-9 The Wild Ricer's Guide.

P-10 Plastic encased vegetation.

P-11 Plastic encased wild rice.

P-12 Plastic bag of vegetation.

P-13 Plastic bag of vegetation.

R-1A Application for permit.

R-1B Pre-Hearing Statement.

R-1C Application correction request and response.

R-1D Notes Re: Meeting with Mr. Harby.

R-1E Public Notice.

R-1F Letter of objection by Mr. Gaynier.

R-1G Letter of objection by Mr. Brancheau.

R-1H Wetland Map.

R-1I Map of Flood borders.

R-1J Calculation of wetland fill.

R-1K Project review report.

R-1L Portion of Monroe County soil survey.

R-1M Soil analysis.

R-1N Wetland inventory of area.

R-1O Pictures of site.

R-1P File review.

R-1Q Certified letter denying application for permit.

R-1R Notes re; site viewing.

R-1S Copy of pictures of existing drain/stream.

R-1T Notes to file.

R-1U Notes re: Meeting with Mr. Harby.

R-1V Meeting notes.

R-1W Copy of letter from Monroe County drain commissioner (same as P-1)

R-1X Notes re: flood elevation.

R-1Y Notes.

R-1Z Additional notes.

R-1AA Letter DNR to Petitioner.

R-1BB File memo.

R-1CC Letter from Corps of Engineers.

R-1DD Memo to file.

R-1EE Memo to file.

R-1FF Memo to file.

R-1GG Drawing of existing drain.

R-1HH Not admitted.

R-1JJ Pictures of site.

R-1KK Letter from Berlin Township supervisor.

R-1LL Letter from Monroe County drain commissioner.

R-2 Picture

R-3 Picture

R-4 Flood insurance rate map.

R-5 Picture.

R-6 Picture.

R-7 Picture.

R-8 Picture.

R-9 Picture.

R-10 Picture.

R-11 Picture.

R-12 Picture.

R-13 Letter DEQ to USDA.

R-14 Response to above.

R-15 Map of Monroe County.

R-16 MIRIS map.

R-17 MIRIS map.

R-18 MIRIS map.

R-19 Records USDA.

R-20 Picture.