IN RE: Goemaere-Anderson Wetland Act Appeal of Holland
Fish and Game Club, Inc.
Cause No. 87-9-58W

The Natural Resources Commission, having considered the Proposal for Decision dated March 2, 1990, of the Administrative Law Judge, and the files, pleadings, briefs, and oral arguments in this matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its 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. 87-9-58W, dated March 2, 1990, attached hereto.)
_________________________ ______________________________
Date Thomas J. Anderson, Chairman
Natural Resources Commission

IN RE: Goemaere-Anderson Act Appeal of
Holland Fish and Game Club, Inc.
Cause No. 87-9-58W

Dated: ________________________
William C. Fulkerson,
Administrative Law Judge

This matter is a contested case hearing arising from the issuance of a Goemaere-Anderson Wetland Protection Act permit to James L. Snook.

The hearing was conducted in accordance with 1979 PA 203, the Goemaere-Anderson Wetland Protection Act.

1. The professional staff of the Department of Natural Resources is charged with the day to day administration of Goemaere-Anderson Wetland Protection Act.

2. Holland Fish and Game Club Inc., requested the hearing in accordance with the Act, and James L. Snook was granted intervention as a party of interest and as the applicant/modified permit holder.

In February, 1987, James L. Snook applied to the Department of Natural Resources for a permit under the Wetland Protection Act to place 250 cubic yards of clean fill material in a wetland, adjacent to Lake Macatawa, Ottawa County, Holland Michigan, to facilitate access to the lake, through "Count's Cove Park", by Count's Cove Subdivision residents and their guests. This application referenced previously issued permits by the MDNR (80-9-262) on February 12, 1980 and the U.S. Army Corps of Engineers (80-51-34) on April, 22, 1981 for the same activity. In May of 1987 a project review was conducted by the MDNR, concluding there was no objection to a raised boardwalk over the emergent wetland area.

However, the permit was subsequently denied, pending a public hearing which was held in July of 1987. In October of 1987, a modified permit was approved, allowing 46 cubic yards of clean fill material for a path, 5' X 250', one foot deep, with two 6" X 6" culverts in the path, and a boardwalk 4' X 155' minimum 2' above ground level. This Modified Permit did not grant or imply allowance of permanent docking or boat mooring lakeward of the boardwalk. The terminus of the boardwalk was approximately at the ordinary high-water mark.

Major issues addressed by the Petitioner include the MDNR failure to fully consider the detrimental effects of the proposed activity, in light of the covenants and restrictions of the Count's Cove Subdivision, violating section 9(2) (c), (d) and (e) of the Wetlands Act. Also, that the activity is not in the public interest. These will be discussed fully later in this opinion.

The subject property is an emergent wetland which is contiguous to Lake Macatawa, an inland lake. It is undisputed that the property is a wetland and that a permit is required for the proposed activity. The Wetlands Act contains criteria for the review of permit applications and mandates that 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 public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is 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 reasonably foreseeable detriments of the activity. The decision shall reflect the national and state concern for the protection of actual resources from pollution, impairment and destruction. The general criteria shall be considered:
(a) The relative extent of 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, including the benefits the wetland provides.

(d) The probable impact of each proposal in relation to the cumulative effect created by 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.

The Petitioner's property adjoins the Count's Cove Subdivision and is a wetland centered around Pine Creek where it enters Pine Creek Bay. The properties are bordered by Pine Creek Bay on the south and Ottawa Beach Road on the north. The wetlands south of the road are 8-10 acres in size. The wetlands along the creek on the north side of the road are well in excess of 100 acres. The portion of the wetland located on the Count's Cove Subdivision is less than two acres.

The Petitioner offered the deposition testimony of Mr. Thomas Hendrickson and testimony at the hearing of Dr. James Ludwig, concerning the ecological impact and values associated with the subject property. Mr. Hendrickson is an avid bird-watcher and has recorded sightings he has made for the last ten years, both north and south of Ottawa Beach Road in the two wetlands. A complete listing of the observations made by Mr. Hendrickson is attached as part of his deposition. See Petitioner's Exhibit 15. Prior to 1988, approximately 64 species were observed south of the road. Mr. Hendrickson reported that his sightings north of Ottawa Beach Road have increased significantly as a result of a change in ownership. That is, he now has access to the northern Pine Creek wetlands and has more easily sighted many species. His observations on the south area are from Ottawa Beach Road and from an old road, which he believes became Count's Cove Court. None of his observations recorded which of the bird species were sighted within the Count's Cove Subdivision and elsewhere. He is not aware of the property lines nor is there any clear marker. He did indicate that all or most of the ducks observed were near the mouth of the Pine Creek. Mr. Hendrickson did not offer an opinion as to the affect of the proposal on any birds that might be present. He did offer that birds would be present if the habitat were appropriate and that the habitat along the Pine Creek Bay changed generally with water levels.

Pine Creek Bay is very shallow and is influenced directly by Lake Michigan levels. The nature of the wetland at Count's Cove changes significantly with water levels. The near-shore area is extremely shallow, thus, a small fluctuation in water levels will cover or expose a good deal of land. over the past thirty years, the elevation has ranged approximately six feet from the lowest to the highest point. At the time of the application, it was one of the highest points in recorded lake levels. As the water lowers, it exposes a large mud flat which over time will revert to cattails and other wetland species. The permit issued to Mr. Snook was for a boardwalk that terminated at approximately the ordinary high-water mark. This is the jurisdictional demarcation between the Inland Lakes and Streams Act and the Wetlands Act. To proceed further with a boardwalk, a permit would have been necessary under the Inland Lakes and Streams Act. There has been no such application, nor is one proposed at this time. As the water levels drop, the terminus of the boardwalk will be some distance from the waters edge.

Dr. Ludwig, an ecological consultant with a special interest in birds, testified more specifically about what he believed the probable impact of the boardwalk to be. Dr. Ludwig testified that some species of birds would be sensitive to the intrusion, and it might affect breeding. Whether persons walked through the area or were on a boardwalk would not make any difference. The wetland is in an area subjected to considerable human intrusion, if not directly, indirectly. Ottawa Beach Road is a very busy road that is in close proximity to the wetland. Mr. Snook testified that Pine Creek Bay is a very popular place for boating; although it is shallow, he has seen jet-skis frequently run very close to the shoreline in the shallow water. Further out in deeper water, the bay is extremely busy with water skiers, boaters and fisherman. The wetland is literally an island surrounded by human activity. It is also clear that the most intense and disturbing activity would take place during the height of the summer season. Petitioners Exhibit-19, a large aerial photograph, shows the area. The facts show the majority of the wetland is on the Petitioner's property. Those wetland areas closest to and most susceptible to human intrusion and disturbance are those portions on the Count's Cove property. find there may be some influence on very sensitive species. However, the difference of the influence of human activity, with or without the presence of the boardwalk, is unquantifiable. There are strong arguments that the boardwalk lessens the human intrusion by focusing it in a confined area. The Department witnesses testified their opinion was that the preferable method for lake access is along a boardwalk. The evidence further shows the portion, of the pathway that skirts the pond has been in existence for a long time; there will be no significant change in usage there. In fact, the installation of culverts under the path may increase the free flow of water between the wetland and pond. There also was ample testimony that boardwalks are frequently used by conservation groups, such as the Audubon society, to allow access and viewing of wildlife in wetlands. The Department has any number of boardwalks at state parks and recreation areas allowing the public to view and enjoy wetlands without making a significant intrusion.

Dr. Ludwig expressed concern about the potential use of treated wood. The permit does not describe the types of materials to be used. Department staff testified that treated wood was commonly used at Department facilities and that they were aware of no problems with the material. I do not find sufficient evidence in this record to conclude that it is likely that the use of treated wood could cause problems. Further there is no evidence in the record of the kind of material being used by Mr. Snook to construct the boardwalk.

The fisheries impact from the proposal are insignificant. There was testimony expressing concern, that should docks be constructed along the end of the boardwalk, that might cause some disturbance of shallow habitat. However, there is no proposal for docks at this time; there is no permission given by this permit for the construction of any docks; and further, the record shows that a permit is required by the United States Army Corps of Engineers to construct docks in Lake Macatawa. The Petitioners center much attention on the potential for the construction of boat docks by parties who own lots. I believe it is inappropriate to determine whether lot owners have a right to construct a dock, or not, as part of this proceeding. This is because a determination would relate specifically to riparian rights of individuals within the subdivision who are not parties and were not given Notice of this proceeding. Thus, a potentially significant property right could be impacted, without benefit of participation by the owners of those rights, in the hearing. Further, docks below the ordinary high-water mark are not within the jurisdiction of the Wetlands Act. Thus, the jurisdiction of this proceeding is so limited.

(f) The size of the wetland being considered.

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

(h) Proximity to any waterway.

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

(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.

(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.

1. The application of Holland Fish and Game Club Inc., is controlled by the Goemaere-Anderson Wetland Protection Act 1979 PA 203, as amended, and the promulgated rules. The Act requires that the various criteria be applied to determine if an unacceptable disruption of the aquatic resources will occur and if the matter is in the public interest. A determination of whether the matter is in the public interest is made by the balancing criteria of Section 9 and consideration of the general statements of Section 3. The Petitioner argues that the project must be in the public interest, meaning having some kind of public scope or benefit. The statute clearly sets forth the items to be considered in a determination of the public interest of the project. The Petitioner's analysis is not consistent with the Statute; Section 9 and Section 8. The Statute does allow permits to be issued for purely private purposes that meet the various regulatory criteria for issuance. To adopt the Petitioner's analysis would eliminate the right for a wetlands permit for anything other than a public project; this construction is too narrow. The public interest does not have its literal meaning; it has a specific meaning as required by the Statute.

2. I further conclude, as a matter of law based on the foregoing facts, that the permit proposal will not, or is not likely to pollute, impair or destroy the air, water or other natural resources. Further, I conclude that the Permit mitigates the adverse effects to the environment to the extent possible and is consistent with other activities permitted by both private and public entities.

Based on the foregoing Findings of Fact and Conclusions of Law, I conclude that the Department properly issued the permit criteria for issuance. It is further proposed that an unacceptable disruption of the aquatic resource will not occur and that the Permitted, James L. Snook, should be allowed to finish the permitted project.

Dated: ________________________ ____________________________________
William C. Fulkerson,
Administrative Law Judge

1. Aerial Photograph of site.
2. Photographs, displaying various sites on the property, with notations.
3. Subdivision plat map.
4. copy of a subdivision plat map, with notations [on 16 X 22 pressed board].
5. Copy of a subdivision plat map, with notations [on 16 X 22 pressed board].
6. Topographic map, with notations, [on 22 X 20.5 pressed board display].
7A-7K. Photographs, showing various sites on the property.
8. Application for permit; copy of a map; copy of a subdivision plat map, with notation; project site location direction form.
9. Public Notice, February 27, 1987.
10. Project Review Report, May 15, 1987.
11. Letter, to James L. Snook, from Jeffery A. King, district Supervisor, June 3, 1987.
12. Notice of Public Hearing, June 29, 1987.
13. Letter, to Michigan Department of Natural Resources/ U.S. Corps of Engineers, from Jim Snook, re: application, August 4, 1987.
14. State of Michigan, Department of Natural Resources Permit, October 21, 1987--with map of Lake Macatawa area.
15. Deposition of Thomas Hendrickson, April 12, 1989.
16. Resume of James Pinson Ludwic, with listing of major consultantships and assignments with Ecological Research Services, Inc. 1977-1988.
17. Resume of Kameron J. Jordan, re: Position as District Fisheries or Hatcheries Biologist.
18. Resume of Eugene John Trimbuger, re: Administration and Management of Natural Resources.
19. Aerial photograph, [large black and white].
20. Resume of Jeffery A. King, re: Water Quality Specialist.
21. Rite-O-Gram, to John Trimberger, from Kameron J. Jordon.
22. Letter, to Jeffery King, from Kameron Jordan, October 19, 1987.
23. Letter, to Jeffery King, from Kameron Jordan, September 2, 1987.
24. Letter, to Steve Sadewasser, from Steve Forgacs, April 13, 1987.
25. Letter, to Colonel Robert F. Harris, from Tim Kubiack, April 10, 1987.