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 Heminger
File No. 92-04-0174
at a session of the Office of Administrative Hearings held in Lansing, Michigan, on the 26th day of December, 1995, Richard G. Lacasse, Chief of 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. No exceptions were filed.
The Chief Administrative Law Judge of the Office of Administrative Hearings has considered the Proposal for Decision, exhibits, submissions 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 D. Heminger, File No. 92-04-0174 is DENIED.
DATE: December 26, 1995
Richard G. Lacasse
Chief Administrative Law Judge
IN RE: Goemaere-Anderson Wetland Protection Act Appeal of Raymond Heminger
Cause No. 92-04-0174
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 Gulliver Lake, Doyle Township, Schoolcraft 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 Heminger appeared in propria persona. Mr. Heminger requested a contested case hearing pursuant to Section 17 of the Wetland Act.
Petitioner made application to fill on March 15, 1993. Said request to fill was denied on May 12, 1993. (Respondent's Exhibit 1 and Respondent's Prehearing Statement)
Subject property, Lot 4, is located in T42N, R14W, Section 35, Doyle Township, Schoolcraft County. Lot 4 is contiguous to Gulliver Lake.
Petitioner seeks a permit to fill Lot 4 consisting of approximately .9 acres of wetland with 1,540 cubic yards of fill and to retain the fill already placed on a portion of Lot 4.
Petitioner purchased approximately one-half mile of frontage along Gulliver Lake in 1971 for purposes of residential development. The entire parcel ranges in depth from 370 feet to 500 feet. Subject property is part of that parcel, and is 150 feet wide on the Gulliver Lake lakeshore, and approximately 265 feet deep.
Respondent's Exhibit 2 is a drawing of Petitioner's property; the drawing depicts subject property as D, underneath the number 4. This drawing was prepared at the hearing, and Petitioner stipulated that it accurately depicts his parcel, including the subject property.
Petitioner was issued a permit on November 7, 1991 to construct a house, septic system and driveway on Lot 3, depicted as C on Respondent's Exhibit 2. Petitioner was also granted a permit "after-the-fact" to place 1145 cubic yards of fill on Lots 1 and 2 for use as a homesite, with septic field and driveway. These lots are depicted as B and C on Respondent's Exhibit 2 and are shown in Petitioner's Exhibits 4, 5 and 6.
Petitioner now seeks a permit to place 1,540 cubic yards of fill on Lot 4, depicted as D on Respondent's Exhibit 2, for the purpose of sale and development for a homesite.
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 performed a site evaluation of the parcel, including subject property. He determined the presence of wetlands on portions of subject property. He reached his conclusion by examining the hydrology of the soils and by assessing the plant community.
Mr. Outwater also opined regarding the uplands located on the property owned by Petitioner. He found an ice push-up which is 5 to 10 feet wide and 3 feet high. This runs the length of the property along the shoreline and is depicted by E on Respondent's Exhibit Two. There is also a natural ridge about 10 feet wide approximately 150 from the shoreline, which is depicted as F on Respondent's Exhibit 2. There is an access road, depicted as G on Respondent's Exhibit 2, which has been developed by Petitioner. H, on Respondent's Exhibit 2, depicts a filled area that is 135 feet going to the north along the east side, 80 feet on the backside, 135 feet on the west site and 70 feet along the roadway. This portion of the property comprises approximately 10,000 square feet. A garage is located on this portion of the property, as shown in Respondent's Exhibit 5. The area depicted as H is not a wetland because it has been filled. Mr. Outwater could not determine when the fill occurred. I, on Respondent's Exhibit 2, shows railroad tracks, which is the northern boundary of Petitioner's property. J, on Respondent's Exhibit 2 depicts another upland located on the property. It is also approximately 10,000 square feet and measures approximately 75 feet by 125 feet, and is shown by Respondent's Exhibit 6.
Mr. Outwater testified that the average city-lot is approximately 10,000 square feet. This amount of space would be sufficient to support a house, garage and septic system. What has been labeled as J on Respondent's Exhibit 2 would meet this criteria. Mr. Outwater testified that the Department would grant a permit to place a driveway through the regulated wetland to gain access to this upland.
What has been depicted as H and J on Respondent's Exhibit 2 are uplands on Petitioners property that are suitable for construction.
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 Gulliver Lake.
Mr. Outwater examined the soils and the vegetation on the parcel, including the subject lot. He found the soils to be hydric and the vegetation to be characteristic of a wetland, except the portions of the parcel depicted as H and J on Respondent's Exhibit 2, the ice push up area (E, Respondent's Exhibit 2), the ridge (F, Respondent's Exhibit 2) and a portion of Lot 4 which had been filled. He marked with black markings on Respondent's Exhibit 2 what he felt were regulated wetlands. Lot 4 is marked as wetlands towards the lakeshore; the northern portion of Lot 4 has already been filled. The measurement of the existing fill is approximately 30 feet by 25 feet of driveway, and 40 feet by 105 feet to the first ridge. The fill is approximately 4 ½ feet deep.
Petitioner provided no evidence to contradict Mr. Outwater's depictions of the wetland areas of his property, including those marked on Lot 4. Petitioner submitted two photographs of what he felt were comparable properties that had been filled. The Department stipulated that the property depicted in Petitioner's Exhibit 2 is property for which a permit was granted to place a driveway through a wetland to gain access to an upland area. Neither the Department nor the Petitioner could identify the location of the property shown in Petitioner's Exhibit 3, therefore this photograph is of no probative value.
It is this hearing officers finding of fact that Petitioner's property, except for the areas depicted as E, F, H, J and a portion of Lot 4 are wetlands subject to regulation.
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 project 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.
Louis L. Lauzon, Chairperson of the Schoolcraft County Board of Commissioners submitted a letter (Petitioner's Exhibit 1) which read:
We the Schoolcraft County Board of Commissioners would appreciate it if you would give Mr. Raymond Heminger the same consideration, but also guidelines, that were given to other property owners on Gulliver Lake. Property owners with the same situation, have been allowed to fill their property.
The correspondence was taken into consideration, but no probative evidence was submitted to indicate that Petitioner was being treated any differently than other property owners on Gulliver Lake.
(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 two homesteads the size of two average city lots. Further, Respondent is willing to grant a permit to fill within the wetland to place a driveway to access one of the uplands.
(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 would be no public benefit to granting Petitioner's request to fill. There would be irreparable harm to the wetlands. Petitioner has already been granted permits to fill on three lots and could construct on two other upland areas.
(d) The probable impact of 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 to contradict the negative impact of filling. He did express his desire to develop eight more "lots" within the parcel.
(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.
____________________________________
Kimberly Adams Colgate
Administrative Law Judge
Date: 8-29-95
1: Letter from Schoolcraft County Board of Commissioners to Administrative Law Judge, Kimberly Adams Colgate, dated August 24, 1995.
2-6: Photographs
1: Public Notice and Petitioner's Application.
2: Drawing of Petitioner's parcel, including subject property.
3: Permit for Lots 1 and 2.
4: Permit for Lot 3.
5-6: Photographs
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