Petition of Peter W. and Mary Ellen Hunt
File No. 96-06-0311W

This contested case regards an application filed by Peter W. and Mary Ellen Hunt (Petitioner) for a permit to place fill in a wetland on property adjacent to Green Lake, Green Lake Township, Grand Traverse County, Michigan. The Application For Permit, filed August 13, 1996, was denied under the provisions of Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended. (NREPA). The Petitioner requests this Tribunal review the application and determine the proposed activity can be approved. A contested case hearing was held on February 5, 1998. This is the Final Determination and Order of the Michigan Department of Environmental Quality (Department) regarding this matter. MCL 24.285; MSA 3.560(185): Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.

This case was heard under 1994 PA 451, as amended, Natural Resources and Environmental Protection Act (NREPA); Part 303, Wetland Protection and the administrative rules. MCL 324.30301 et seq.; MSA 13A.30301 et seq. Procedurally, the hearing was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560(101) et seq.

Peter W. and Mary Ellen Hunt are the Applicants for a permit and the Petitioner in this case. The professional staff of the Department is responsible for administering Part 303 of the Act and is the Respondent. Mr. Hunt represented himself and his spouse in this proceeding. The Department is represented by Frederick Gottschalk, Contested Case Supervisor of the Land and Water Management Division (LWMD).

Mr. Hunt offered no evidence for the record. The Department called one witness, Mr. John Arevalo, LWMD and entered 24 exhibits into the record. A list and description exhibits received is attached to this Final Determination and Order.

The Hunts own approximately 11 acres of land near Interlochen which is divided into three contiguous lots identified as Lot Numbers 03200, 03400 and 03500. The lots are situated along the west side of Diamond Park Road. Lot number 03500 is 5 acres in size and is the northerly most lot. Lot number 03200 is situated in the middle of the other two and is about 5 acres in size. The southerly most lot, 03400, consists of approximately 1 acre. The fill is proposed on Lots 03200 and 03400 only. Diamond Park Road and lake front lots along its east are situated between Petitioner's land and Green Lake.

Petitioner's application is to place approximately 1,204 cubic yards of fill in 0.75 acres of wetland for the purpose of filling in an area excavated by previous owners. On October 6, 1996 Mr. Hunt sent the Department a supplement to the application further identifying the proposal to include fill in four separate areas for a residence, a shop/storage building, an area for firewood and lumber processing, an area for storage and parking, and connecting drives. Exhibit R-14. However, Petitioner qualifies the proposed development plan as follows:

The above are based on best guess of what I would like to do with the property. I have not estimated their cost or other factors. I will not accept any permit issued with conditions of any legal obligation to build anything or everything indicated here.

Mr. Arevalo testified Mr. Hunt has not provided the Department with any firm commitment for any project on this site. Although Mr. Hunt did not testify at the hearing, he did suggest he wanted to fill the wetland and had no particular plans for its use. He stated that it is his right as an owner of the property was to place fill in the wetland. Mr. Hunt's position on this issue was consistent throughout the application and hearing processes. See Exhibits R-7 and R-8. Consistent with this position, the Petitioner alleges the Department's denial of his application without just compensation is a taking in violation of the United States and Michigan constitutions.

As a general rule administrative agencies have no authority to consider constitutional issues. Claims involving allegations of a government taking property without just compensation are included in this bar. Wilman v City of Novi, 413 Mich 617, 322 NW2d 103 (1982). Although this Tribunal has no jurisdiction to adjudicate Petitioner's constitutional issues, he was provided the opportunity to preserve this issue on the record. MCL 24.272(3).

However, the Department is obligated to review the taking assessment guidelines and consider the likelihood that an action on an application may result in a constitutional taking. MCL 24.424; MSA 3.560(421) et seq. In considering the guidelines in the context of this case, it does not appear there is a likelihood this final agency decision results in a taking of Petitioner's property as a result of the application of the standards contained in Part 303.

The Parties entered into the following factual stipulations: a. The Petitioner is a proper applicant for a permit; b. The application at issue was processed correctly; c. That the Department's exhibits R-1 through R-19 inclusive are admissible; d.  Grand Traverse County has a population of less than 100,000 persons; e. That Mr. Arevalo is an expert in wetland determinations.

I find these stipulations are complete and legally correct, and I adopt them as findings of fact. Stipulations entered into by the Parties shall be used as evidence for the purpose of factual determinations in this case and are binding. MCL 24.278(1); MSA 3.560(178); Dana Corporation v Employment Security Commission, 371 Mich 107, 110; 123 NW2d 277 (1963).

The first issue presented is whether or not the subject property is a wetland as defined by the Act. Wetland is defined in Section 30301(d) as:

`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 . . ..

A determination that a parcel is or is not a wetland is indicated by three criteria: See, 1988 AACS, R 281.924 (2)(a) and

(b).

1) The type of vegetation
2) Hydrological indicators for water, and
3) The soil characteristics.

Mr. Hunt challenges Department's designation of this parcel as being wetland. Mr. Arevalo was on site a number of times and testified the site contains vegetation which is characteristic of a wetland. See also Exhibit R-4. He also testified there are pockets of standing water on the site. This testimony is not refuted. I find, as a Matter of Fact, the subject parcel is wetland as defined in Part 303.

The second issue is whether this wetland parcel is subject to regulation under Part 303. Subsections (d)(i) and (d)(ii) of Section 30301, provide the criteria which must be found before the Department may regulate a wetland. MCL 324.30301(d)(i) and (ii). As applicable to this site the wetland must be:

(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond or a river or stream.

Administrative Rule 1988 AACS, R 281.921(1)(b)(iii) and (b)(iv) further defines "contiguous" as:

(b) `Contiguous' means any of the following:

***

(iii) A wetland is partially or entirely located within 500 feet of the ordinary high watermark of an inland lake or pond or a river or stream or is within 1,000 feet of the ordinary high watermark of one of the Great Lakes or Lake St. Clair, unless it is determined by the department, pursuant to R 281.924(4), that there is no surface water or groundwater connection to these waters.

(iv) Two or more areas of wetland separated only by barriers, such as dikes, roads, berms, or other similar features, but with any of the wetland areas contiguous under the criteria described in paragraph (i), (ii), or (iii) of this subdivision . . ..

The Department asserts jurisdiction over the wetland parcel because it is within 500 feet of Green Lake, even though lake front lots and Diamond Park Road are between the site and the lake. Mr. Hunt challenged this determination by motion. He asserts the administrative rule, (b)(iii) above, goes beyond the meaning of "contiguous" as defined in the statute and is, therefore, invalid. Although he does not challenge the fact the project site is within 500 feet of Green Lake, he asserts that because Diamond Park Road and lake front lots are between the site and lake the statutory definition of "contiguous" is not met.

Administrative Rule 921.(1)(b)(iv) set forth above provides that barriers constructed through a wetland do not break the contiguous nature of a wetland. Mr. Arevalo testified there are wetlands on the lake side of Diamond Park Road and that Diamond Park Road and the lake front residences were constructed on a filled wetland.

An Order dated June 16, 1997 denying Mr. Hunt's motion explains that an administrative agency must follow its own rules and that this Tribunal does not have jurisdiction to invalidate rules. I find, as a Matter of Fact, the proposed activity is in a wetland which is within 500 feet of Green Lake and, therefore, is contiguous to Green Lake.

In addition, the Department asserts jurisdiction over the parcel because it is contiguous to the Little Betsy River. Mr. Arevalo testified he walked approximately 3,200 feet in wetland from the proposed project site to the bank of the Little Betsy River. The entire walk was through one continuous wetland. I find, this wetland is one wetland complex from the proposed project site to the Little Betsy River. I find, as a Matter of Fact, the site is in a wetland which is contiguous to the Little Betsy River and is regulated under Part 303.

Section 30304 lists the activities which are prohibited in a wetland without a permit. MCL 324.30304.

Except as otherwise provided by this part or by a permit obtained from the Department under sections 30306 to 30314, a person shall not do any of the following:

(a) Deposit or permit the placing of fill material in 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.

The proposed activity involves placing fill material in a regulated wetland and requires a permit. In order to issue a permit for the activity requested by the Petitioner, the criteria of Section 30311 of the Act must be considered. MCL 324.30311(1).

(1) A permit for an activity listed in section 30304 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.

The Petitioner's proposal is to place fill material in a regulated wetland. Therefore, I find a permit is required for the proposed activity. Mr. Arevalo testified the proposed activity is otherwise lawful and I so find. A determination of whether the project is in the public interest is made by applying criteria enumerated in Part 303. These criteria are found in Section 30311(2) as follows:

(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.

Petitioner desires to place fill in a wetland to create upland without any definite plans to develop the site. Given this fact, the relative extent of the public and private need is unknown. To place fill in a wetland simply to create upland and for no other reason, does not give rise to a need for the proposed activity. I find, as a Matter of Fact, lacking a firm proposal for development from the Petitioner, the private and public need is non-existent. (b) The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.

As regarding feasible and prudent locations for the proposed activity, Mr. Arevalo testified there are uplands available on the Petitioner's property. Mr. Hunt's October 6, 1997 supplement to his application indicates there are 42,800 square feet of upland available on the proposed site. Exhibit R-14. Mr. Arevalo used the information contained in Mr. Hunt's October 6 supplement to his application to prepare Exhibit R-19. In this Exhibit Mr. Arevalo transposes the proposed fill locations "A" through "D" from Exhibit R-14 to the area shown as upland on the Exhibit. All four proposed fill foot prints fit within the available upland on the property. Additionally, Mr. Arevalo testified there is adequate room on the upland for a 2,000 square foot drainfield. See also Exhibit R-18. Mr. Hunt argued this upland is to be used for a community drainfield but provided no evidence to that affect. However, Mr. Arevalo testified the Grand Traverse County Health Department is unaware of any such plan. Exhibit R-17. I find, as a Matter of Fact, there is a feasible and prudent alternative upland location available for development of these parcels. As regarding feasible and prudent alternative methods to accomplish the proposed activity, the facts on this record do not provide for such an analysis because the only activity proposed is to place fill in the wetland.

(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.

Petitioner's proposed activity is to place fill in the wetland on his property. The wetland is privately owned and there is no public use of it. I find, effects of placing fill in this wetland will have no impact on public uses. Petitioner's private use of the parcel is speculative at best. At this time he knows only that he wants to place fill in the wetland for some future unknown use. Given this fact, there is no basis to make a finding regarding the beneficial or detrimental effects of the proposed fill on Petitioner's use. I find, placing fill in this wetland to create upland would permanently eliminate the functions this 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.

The statute mandates cumulative effect of the proposed project be considered in relation to other activities in wetland in the affected watershed. In this case, the watershed is that of the Little Betsy River and Green Lake. Mr. Arevalo testified the County is growing in population and this watershed is experiencing development activity. Exhibit R-11 contains data regarding application and enforcement activity for the governmental surveyed section of land which includes the Petitioner's lots. There are no wetland applications or enforcement action in that section. A part of this Exhibit is a 1992 permit issued in the section regarding a different statute administered by the Department. Because of the lack of applications and enforcement activities in the area, and that Mr. Arevalo walked the entire distance from the project site to the banks of the Little Betsy River in wetland, I find there would be minimal cumulative impact from this proposed fill.

(e) The probable impact on recognized historic, cultural, scenic, ecological or recreational values on the public health or fish or wildlife.

There is no testimony as to the project's impact on recognized historic, cultural, scenic or recreational values or fish. From an ecological and wildlife perspective, Mr. Arevalo testified regarding negative impacts of the project. I find, the project would negatively and permanently effect game and non-game habitat and eliminate the ecological functions this wetland provides.

Mr. Hunt asserted this wetland is polluted from septic systems and filling it in would lessen public health risks. However, the legislative findings in Part 303 state that wetlands provide pollution treatment by serving as biological and chemical oxidation basins. MCL 324.30302(1)(b)(iv). Placing fill in this wetland would eliminate its function in this regard.

(f) The size of the wetland being considered.

On the immediate site there is approximately 58,000 square feet of wetland. Exhibit R-14. However, the wetland is much greater in size than that portrayed in that exhibit as the wetland is continuous all the way to the Little Betsy River.

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

There is no direct evidence of the amount of wetland remaining in the general area. However, considering Mr. Arevalo's testimony and the exhibits there is a substantial amount of wetland remaining in the area.

(h) Proximity to any waterway.

The wetland is about 200 feet from Green Lake and approximately 3,200 feet from the Little Betsy River.

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

Mr. Arevalo testified there is limited economic value of creating upland out of this wetland. He testified the land value may increase somewhat because it would be more amenable to development. If the Petitioner develops the available upland, his private economic value is preserved. I find there is no economic value in the proposed land change to the public and little to the Petitioner.

After considering each of the above criteria, the statute requires a balancing of the benefits against the detriments in order to determine whether the activity is in the public interest. In balancing these criteria, I find, as a Matter of Fact, the proposed project is not the public interest.

Sec. 30311(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 necessity made by other state agencies.

Sec. 30311(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.

I find, as a Matter of Fact, the proposed activity would cause an unacceptable disruption to the aquatic resources based upon the legislative findings and the findings of fact in subsection (2). Whether the proposed activity is primarily dependent upon being located in the wetland is unknown because Petitioner has proposed no firm plans. The speculative development plans he has proposed could all be realized on the available upland. Based upon the previous findings of fact, I find there is a feasible and prudent alternative to the proposed activity.

Based on the findings of fact:

1. I conclude, as a Matter of Law, the subject parcel is a wetland as defined in Part 303. MCL 324.30301(d). I conclude the wetland is contiguous to an inland lake and stream and is subject to Part 303. MCL 324.30301(d)(i). I also conclude a permit is required for the proposed activity. MCL 324.30304(a).

2. I conclude, as a Matter of Law, the Hunts are proper applicants for a permit and proper Petitioners in this matter. I also conclude the Application For Permit was properly processed.

3. I conclude, as a Matter of Law, the proposed activity is otherwise lawful but not in the public interest, pursuant to Section 30311(1).

4. I conclude, as a Matter of Law, the proposed activity will cause an unacceptable disruption to the aquatic resources. MCL 324.30311(4).

5. I conclude, as a Matter of Law, there is a feasible and prudent alternative location for the proposed project. MCL 324.30311(4)(b).
 

Based on the Findings of Fact and Conclusions of Law, it is DETERMINED the Petitioner's Application for a Permit pursuant to Part 303 cannot be approved.

THEREFORE, IT IS ORDERED: The Petitioner's Application for a Permit is DENIED.
 

Dated: August 13, 1998 ________________________________
Richard G. Lacasse
Chief Administrative Law Judge