IN RE: INLAND LAKES AND STREAMS ACT APPEAL
OF DANIEL S. HUNT
Cause No. 86-13-66

The Natural Resources Commission, Having considered the Proposal for Decision dated March 22, 1989, of the Administrative Law Judge, and the files, pleadings, briefs, and oral argument 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. 86-13-66, dated March 22, 1989, attached hereto.)

Date Raymond Poupore, Chairman
Natural Resources Commission

IN RE: Inland Lakes and Streams Act Appeal of Daniel S. Hunt
Cause No. 86-13-66

William C. Fulkerson
March 22, 1989 Administrative Law Judge

This matter is a contested case hearing arising from the denial of an Inland Lakes and Streams Act permit to install 100 feet of 48 inch diameter drain pipe in an unnamed stream in Michigan Center, Leoni Township, Jackson County, Michigan.

JURISDICTION

The hearing was conducted pursuant to the Inland Lakes and Streams Act (ILSA) 1972 PA 346, as amended, and the promulgated rules.

PARTIES

1. The professional staff of the Department of Natural Resources is charged with the day to day administration of ILSA.

2. Mr. Daniel Hunt is the applicant for a permit who requested a contested case hearing pursuant to Section 11 (2) of ILSA.

FINDINGS OF FACT

1. The Petitioner is the owner of a commercial parcel of land fronting Page Avenue in Michigan Center. The land is zoned commercial and Mr. Hunt conducts a used car business at the location. The watercourse enters Mr. Hunt's property from a culvert underneath Page Avenue, near his west property line. The channel curves towards the center of the property and then exits at the middle of the east property line. The existing culvert under Page Avenue extends 60 feet from the road into Mr. Hunt's property. His proposal is to add an additional 100 feet of concrete, 48 inch inside diameter tube, and backfill over it to create level ground. The purpose of the enclosure is to allow full utilization of the frontage on Page Avenue for his used-car business. The application was denied primarily because of concerns about the effect on fisheries values within the stream. The alternative of a 15 foot-wide bridge, to be built at the northern end of his construction area, was offered as an alternative.

2. The stream crossing Mr. Hunt's property is unnamed. He referred to it in his application as the Ballard Drain. Approximately 300 feet of the watercourse crosses the property. The stream is several miles long, originating at Gilletts Lake and flowing into the Grand River. It is enclosed on either side of Mr. Hunt's property. The stream passes under Page Avenue, through an approximately 100 foot long culvert. As the stream leaves Mr. Hunt's property, on the east side, it is enclosed for approximately 250 feet, as it goes under a church parking lot. The stream is described as being eight to ten feet in width, with a typical depth of eight inches to a foot. According to the testimony, the stream dried up during last summer's drought. The testimony was in conflict as to whether that was an unusual occurrence. All who testified, agreed that the stream generally is flowing. Based on the testimony, I find that the unnamed stream has definite banks, and continued evidence of flow, and thus, is an inland lake or stream. Accordingly, a permit is required for the work proposed by Mr. Hunt.

3. The primary reason for denial of the permit application was the effect on fisheries habitat. Mr. Gary Towns, a fisheries habitat biologist, inspected the site and commented in Exhibit 9:

The stream is an outlet of Gilletts Lake and flows into the Grand River. It connects several small wetlands between these two fisheries. The stream is used by several fish species, not the least of which is pike. Undoubtedly, it is used by spawning pike in the spring. I observed a small (yearling) pike or pickeral immediately upstream of the proposed construction site. Also, I observed several species of fish which are important as forage for large fish. I found the stream quality to be quite good. Substrates consist largely of gravel, rock, and sand mixture. Also, mayfly and caddis fly larvae were present.

In my opinion, the proposed construction constitutes too great an impact on the stream environment and the stream as a public resource. Primary production would be restricted in the construction area since solar effects would be eliminated. Fishing and esthetic values would be eliminated, also. The darken span of 170 (+ or - feet) may be a serious migration blockage to certain fish species.

Mr. Schramm, the District Land and Water Management Division representative, made similar observations about the stream. Mr. Towns testified that several harmful effects occur from the enclosure of a stream. The culvert would cause the span to be darkened and causes an increase in stream velocity. Both of these factors serve as barriers to fish migration. The existing culvert, under Page Road, is approximately 100 feet long, therefore, the length of the culvert would be doubled. Mr. Towns believed that this 200 foot stretch of enclosed stream, together with the enclosure of more than 250 feet, under the adjacent church property, could serve to block fish migration. He felt there were substantial obstacles to migration present in the stream, as a result of the two enclosed areas and that further enclosure might be enough to totally eliminate any migration. He also testified that the existing stream provided very good natural habitat. The habitat would be eliminated and replaced with a darkened tube. The lack of sunlight results in a completely different array of plants and organisms growing within the darkened area. Therefore, desirable fisheries habitat would be replaced with unproductive, undesirable habitat. Further, any desirable aesthetic or recreational value of this stream would be lost through enclosure. Both Mr. Schramm and Mr. Towns testified that construction of a 15 foot bridge was an acceptable alternative, to allow Mr. Hunt access to the remainder of his property, without having the severe impact on the stream of the enclosure.

4. Mr. Fisher, who is the neighbor to the west of the Hunt property, testified about the stream. He testified that the stream was seldom dry, normally had eight inches to a foot of water in it, and that he was opposed to filling the natural stream. He testified that the primary recreational use of this stream was by kids who might fish in it. He further testified that he believed that part of the stream was on his property. The record also shows that another individual in Michigan Center made a proposal to enclose part of the stream, a few years ago, and was denied a permit for the same reasons.

5. The applicant's proposal will effect riparian rights, fisheries values, and recreation. The effect on riparian rights will be indirect, in that this proposal could result in the significant impact on the fishery, which could reduce the fishing opportunities available to other riparians. The effect on fish is two-fold. First, the enclosure of this drain would eliminate 100 feet of productive habitat. Second, the additional stream enclosure could eliminate or diminish the migration of fish, particularly pike, up the stream to spawning areas. To the extent that the fishery is diminished and productivity of the fishery is lost, the recreational value of the stream, for fishing, declines accordingly.

6. The precise reason for Mr. Hunt's rejection of the alternative of a 15 foot crossing was not clearly in evidence. His stated purpose for the stream enclosure was to utilize what he considered to be valuable commercial frontage. There was no evidence as to why an alternative couldn't accommodate his needs. I find that the adverse effects to the environment of the proposal are significant and are not mitigated to the extend possible. Further, I find a feasible and prudent alternative exists, in that a bridge, to allow crossing of the stream, will provide access to additional land for Mr. Hunt's operations.

CONCLUSIONS OF LAW

1. The application of Mr. Hunt is controlled by the inland Lakes and Streams Act 1972 PA 346, as amended, and the promulgated rules. Section 3 of the Act states:

Except as provided in this act, a person without a permit from the department shall not:

(b) Construct, enlarge, extend, remove or place a structure on bottomland.

The proposal of Mr. Hunt is to place a structure, 100 feet of concrete culvert, on bottomland and to backfill over it.

2. In order to gain a permit, it is necessary to meet the requirements of Rule 4. The pertinent portions are as follows:

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.

(d) That no feasible and prudent alternative is available.

I conclude, as a matter of law, that Mr. Hunt's proposal does not mitigate the adverse affects to the environment to the extent possible and that there are feasible and prudent alternatives available.

PROPOSAL

Based on the foregoing Findings of Fact and Conclusions of Law, it is proposed that Mr. Hunt be issued a modified permit for the construction of a 15 foot-wide bridge to go across the stream, for access to the remainder of his commercial frontage property.

Dated:
William C. Fulkerson
Administrative Law Judge

RE: Inland Lakes and Streams Act Appeal of
Daniel S. Hunt
Cause No. 86-13-66

1. Application for Permit, 86-13-66.
2. Public Hearing Notice, April 4, 1986.
3. Letter, from adjoining property owner, to DNR, opposing the installation of "tile" on the Hunt property. April 15, 1986.
4. Map, Michigan Center Quadrandge, Jackson County, with illustration of Gillett's Lake pattern, related to stream.
5. Map Gillett's Lake Quadrangle, Jackson County, [topographic].
6. Project Review Report, dated May 28, 1986.
7. Photographs, illustrating the unnamed stream and the spawning areas, shown with a photo log.
8. Certified letter: denial of permit application, dated July 22, 1986.
9. Interoffice Memorandum, To Rick Schramm, from Gary Towns. re: file 86-13-66, fisheries evaluation.