IN RE: Inland Lakes and Streams Act 346
Appeal of A.M. Kowal, d/b/a
Dynacorp Development Group
File No. 88-14-233
FINAL DETERMINATION OF NATURAL RESOURCES COMMISSION
The Natural Resources Commission, having considered the Proposal for Decision dated May 8, 1991, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the matter, hereby adopts and incorporates the findings of facts and conclusions of law of the Proposal for Decision and finds that:
The Department's denial of A.M. Kowal's d/b/a Dynacorp Development Group, permit application be sustained. (See Proposal for Decision, Cause No. 88-14-233, dated May 8, 1991, attached hereto.)
_____________________________ ______________________________
Date Marlene J. Fluharty, Chairperson
Natural Resources Commission
IN RE: Inland Lakes and Streams Act 346 Appeal of
A.M. Kowal d/b/a Dynacorp Development Group
File No. 88-14-233
May 8, 1991
William C. Fulkerson
Administrative Law Judge
This matter is a contested case concerning the application and subsequent denial of a permit requesting approximately 750 cubic yards of fill and construction of 130 feet of riprap for "bank reclamation" along the Clinton River.
JURISDICTION
The hearing was conducted pursuant to 1972 PA 346, the Inland Lakes and Streams Act (ILSA), MM 281.951 et seq.; MSA 11.475(l) et seq.; 1979 PA 203, the Goemaere-Anderson Wetland on Act (WPA), MCL 281.701 et seq.; MSA 18.595(51) et seq.; and 1929 PA 245, as amended by 1968 PA 167, the Floodplain Regulatory Act and the promulgated rules.
PARTIES
A.M. Kowal d/b/a/ Dynacorp Development Group, :is the applicant under the inland Lakes and Streams Act and the Petitioner in this case.
The Respondent, Department of Natural Resources, is charged with the day to day implementation of the Acts under the direction of the Land and Water Management Division.
INTRODUCTION
Dynacorp Development Group, A.M. Kowal, (Dynacorp) is the owner of a platted lot 0.3 acres in size located on the Clinton River, Waterford Township, Oakland County, Michigan. The site is adjacent to Edgeorge Drive, east of Irwin Drive; the parcel is on the east side of the Clinton River (joint it 16). Dynacorp applied to fill .28 acres with approximately 750 cubic yards of fill and place riprap along 130 feet of the river bank. About 1/3 of the Lot is a narrow upland strip, approximately 15 feet wide adjacent to a subdivision street. The land slopes toward the Clinton River. The legal description of the land is "Highland Estates Subdivision 2, Township of Waterford, Lot 42.11 The parcel was purchased on September 8, 1987, from the Department of Natural Resources (Joint Exhibit 13). The Deed states in part:
PORTIONS of the above described lands and premises may lie within the hundred-year floodplain of a lake or stream; occupancy of the lands for residential, or industrial purposes, may require the obtention [sic] of a permit from the DNR under provisions; of 1929 PA 245, Sec. 5b, MCLA 325.5b. Any filling, dredging, or other permanent construction below the ordinary high water mark is subject to the provisions of 1972 Public Act 346. Any earth change on the property is subject to provisions of 1972 Public Act 347.Dynacorp owner, Mr. Kowal, is a registered professional engineer, having graduated as a civil engineer from the University of Detroit. He is also a licensed real estate broker and has been in the construction industry for almost 30 years. Mr. Kowal argued that because he received a deed stating that the property was free of liens or encumbrances, he assumed he was entitled to a permit allowing develop of the parcel.
Mr. Kowal stated the interest of Dynacorp is to fill to prevent further erosion and reclaim the bank that erosion has taken since the subdivision was platted in 1957. The parties stipulated that the 100 year floodplain level is 941.6 feet above mean sea level (MSL). Dynacorp is seeking to fill the property to that elevation so it is possible to construct a residence. Mr. Kowal further testified the project would stop soil from eroding into the river and protect neighboring property from erosion. This is the only vacant Lot in the entire subdivision and filling of 1/10 of an acre would create a 0. 2 acre buildable site in what Kowal described as an "eroded area."
In reviewing the Petitioner's Application the Department found that the proposal would cause harmful interference with river floodstage, destroy wetlands, diminish the useful purposes served by the riverine environment and, that there are feasible and prudent alternatives to the proposal.
FINDINGS OF FACTS
Floodplain Occupancy
Mr. Kowal testified that he strongly believes he should be allowed to fill to reclaim property he believes has eroded since the subdivision was platted in 1957. Based on his theory of the presence of the intermediate traverse line on the subdivision plat, Mr. Kowal believes the current riverbank is 110 feet east of the 1957 bank of the Clinton River. Further, as a surveyor, he testified that the intermediate traverse line must be run on solid and now it is 20-25 feet north and west of the bank. It is his estimation that 3.66 feet of riverbank is being lost per year, due to erosion factors. Mr. Kowal testified his proposal would stop soil erosion from his parcel into the river and would protect neighboring Property. By placing 2 to 4 feet of fill (approximately 750 cubic yards) on the riverbank and placing riprap along 130 feet of the bank, the lot would be buildable and from river erosion. Further, Kowal's stated, the Department's position in denying the permit is not logical.
Floodplain occupancy permits are reviewed in light of the proposals effect on the obstruction of water levels for a 100-year flood. The Dynacorp proposal indicates that the filling activity will take place within the floodway portion of the l00 year floodplain of the Clinton River. Approximately 90 feet across the project site would be filled if a permit is granted. The Department believes that the fill would likely cause obstruction of flood water flows, cause changes in the stages of the river, and even cause the direction of flow to charge, resulting in damage to adjacent property owners (Joint Exhibit 6 & 10).
During the hearing, engineer Dan Morgan, Floodplain Unit Chief, testified that he had no problem with the fill elevation being 941.6 feet MSL (requiring approximately 2 to 4 feet fill depth), however, he disagrees with Kowal's 1957 intermediate traverse line theory, suggesting that 3.66 feet per year of streambank has eroded. The Department believes that substantial erosion has not. taken place and the intermediate traverse line was probably placed at a time of very low flow and was mistakenly put in the middle of the stream channel as referenced on the subdivision plat. Instead, Mr. Morgan testified he believes the lot is substantially in the condition today as it was when it was purchased in 1987.
Mr. Morgan supports his beliefs with the fact that vegetation appeared to be well established. He further testified he disagreed that the erosive force was on the eastern side of the bank. If any erosion occurs on this site, it is a result of sheet erosion, that is, water flowing over the property from above. Morgan testified the erosive force is on the opposite bank and, if anything, the Petitioner's property is an area of sedimentary deposition, rather than riverbank erosion.
The Department's fisheries biologist does not believe that erosion is occurring on Mr. Kowal's property because most of the energy of the stream is on the outside of the bend, opposite of the Petitioner's parcel. Possibly, there is some increased erosion on the lot because of downed trees.
Morgan gave the Floodplain Unit evaluation of the project in his memo to Cheryl Rankin of the Department (Joint Exhibit 6).
A permit could be issued if a hydraulic analysis is provided which demonstrates that the filling activity will not harmfully interfere with the stage or discharge characteristics of the river, or filling avoids the floodway of the Clinton River (i.e., no filling within 60 feet of the centerline of the river) [emphasis added]It should be noted, the floodplain occupancy review of the plan considers only the "reclamation project" of the Petitioner. The Department determined the floodway is approximately 90 feet in width and if the proposed project is permitted it would involve fill within the floodway.
The Department's representative, Dan Morgan, testified the riverbank boundaries of the Petitioner's property are very much the same as they were in 1987 when the property was purchased by the petitioner. There is no provision within the Act or within the Department's rules for considering a "land reclamation claim" as justification to permit fill.
Act 167, 1968, as amended from 1929 PA 245, states in part:
Sec. 2a. The commission shall have control over the alterations of natural or present watercourses of all rivers and streams in the state to assure that the channels and the portions of the floodplains that are the floodways are not inhabited and are kept free and clear of interference or obstruction which will cause any undue restriction of the capacity of the floodway.I find, as a matter of fact, that filling and riprap placement along the floodway on the Clinton River would cause interference or obstruction of the Clinton River floodway.
Inland Lakes and Streams
The proposed project was public noticed under ILSA on April 15, 1988, although the thrust of the project review was floodplain and wetlands. Cheryl Rarkin, water Quality Specialist, of the Land and Water Management Division of the Department did the field evaluation of the proposed project. Ms. Rankin testified the project should be denied under ILSA. Her testimony was that at some points along the riverbank, 60 feet of and would be filled if the project were permitted. She testified the permit issuance is not in the public interest.
James Waybrant, Fisheries Biologist and Aquatic Ecologist, Department of Natural Resources, testified there would he a loss of various habitat by the fill. The project would also involve a change in the water flow as well as loss of contiguous plant life along the riverbank- According to Waybrant, there are already two large trees on the north side that will probably fall into the river because the Petitioner would be working on an "inner band." If the fill is put in, Waybrant testified that water would erode the opposite bank causing greater depths of water. He testified there is very good fisheries habitat on site because of seasonal fluctuations in the water level. At times, brown trout, walleye and trophy pike have been present in the area. The wetland vegetation he found on site helps to minimize flow fluctuations and keep the water flow more constant, thus, better for fisheries habitat.
Daniel Morgan, in his interoffice communication to Cheryl Rankin, May 26, 1988, stated, "Filling of this area is likely to obstruct flood flows, cause increased stages in the river, cause a change in the direction of flow and damage to adjacent property owners [Joint it 6]." The Department, pursuant to Section 7 of the ILSA, in its evaluation of the project, considered:
possible effects of the proposed action upon the inland lake or stream and upon the waters from which or into which its water flow and the uses for all such waters, including use for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry . . . This act shall not modify the rights an responsibilities of any riparian owner to the use of his/her riparian water. [emphasis added]The permit was denied, in part, as a result of the Department's application of Rule 4 to its finding of facts (Joint Exhibit 8).
R 281.814 Environmental assessment.
Rule 4. In each application for a permit, all existing and potential adverse environment effects shall be determined and a permit shall not be issued unless the department determines all of the following:I find, as a matter of fact, the record demonstrates there will be significant environmental harm from the proposed activity, and, the effect on the public trust is not minimal and there is no mitigation plan in existence for this project. This project is in Oakland and Mr. Kowal argued there are more lakes in Oakland County than any other county in Michigan, therefore, the loss is not significant. According to the Department the resource affected is rare because the filling would become a part of cumulative loss. Mr. Waybrant testified there have been significant losses in the Clinton River system. The interest in the project is private, not a public one. Dynacorp wishes to develop the site into a buildable lot. From the record, feasible and prudent alternatives do not appear to exist for this project on this Lot.
(a) That the adverse effects to the environment and the and the public trust are 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.
Goemaere-Anderson Wetland Protection Act
The first issue raised by Petitioner is whether the parcel contains "wetland" as defined by WPA. Kowal relied on the fact that he purchased the property from the MDNR in 1987 (Joint Exhibit 13) free of liens and encumbrances and, with that, he believes he is entitled to a permit to develop the parcel. Additionally, a letter from Waterford Charter Township, January 21, 1988 to Mr. Kowal, states in part, "Although the floodplain unit of the D.N.R. has indicated there are no wetlands involved, a permit or letter of denial of jurisdiction will be required from the wetlands division-" Petitioner further relies on the "soil survey of Oakland County Michigan," (Joint Exhibit 21) that describes Lot 42 as part of an "urban land-Thetford complex, 0 to 3 percent slopes." Mr. has never seen wildlife on the property and does not believe there are any. What is more, he testified that the Department's position is not logical from his standpoint and there are no unique findings on the lot, further, that the findings are "just a robotic repetition of beliefs."
The definition of "wetland" under WPA is not dependent on whether the parcel is mapped as such. Much of the mapping is done by stereoscopic analysis of high altitude aerial photographs. It is not until a site specific review is done that a determination can be made as to whether the site is a wetland. A detailed Project Review Report used to evaluate specific criteria under the application review process within the Department was completed by the Department (Joint Exhibits 7-10). From the onset review, it was determined that the area proposed to be filled is a wetland as defined in Section 2(g) of the WPA:
'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 followingCheryl Rankin, Water Quality Specialist, described the parcel as having a small amount of upland adjacent to the road, with the parcel sloping toward the Clinton River. She stated, beyond the narrow upland, the remainder of the parcel is either low or wetland. She described saturated organic soils and the presence of cattail, willow, reed grass, dogwood, and purple loosestrife on the property. According to the statutory definition of regulated wetlands, this wetland is contiguous to a river and need not be 5 acres in size and, therefore, a permit is necessary to fill. Ms. Rankin believes this potential loss of wetland is crucial because of the cumulative loss of wetlands in this area. The parcel contains one of the few small wetlands remaining on the Clinton River that has not been filled. She further testified this wetland area is important to preserve the ecological, recreational and fish and wildlife habitat in the area. Overall, she believes the project is an unacceptable disruption and is not wetland dependent. It does not meet any of the statutory criteria for a wetland permit, would create an unacceptable disruption and is not in the public interest. Ms. Rankin did not demonstrate that there are feasible and prudent alternatives for development on Lot 42 but she testified there are other parcels available for development in Waterford Township.
(i) Contiguous to a Great Lakes or Lake st. Clair, an inland lake or pond, or a river or stream. [emphasis added]
James Waybrant of the Department testified about the importance of the established vegetation in the wetlands. The loss of contiguous plants would cause harm to the area as the wetlands help to minimize flow fluctuations. Fisheries habitat, while seasonal, would be greatly affected by the proposed filling of the site.
I find, as a matter of fact, that the site proposed to be filled is a wetland as defined by the Act. The soils are hydric and saturated. The vegetation is typical of that found in wetlands and is well established and contiguous. Further, I find that an unacceptable disruption of the aquatic resources will occur if the project is permitted.
In Section 9 (4), a two-step process is required in considering whether a permit shall be issued. In this Matter, I have evaluated the facts and determined that an unacceptable disruption will occur if the project is permitted. If there is an unacceptable disruption a permit may not be issued and further evaluation is unnecessary.
CONCLUSIONS OF LAW
1. The applicant has applied for a permit to engage in activity that requires permits under the Goemaere-Anderson Wetland Management and Protection Act, the Floodplain Regulatory Act, and the Inland Lakes and Streams Act.
2. R 323.1315 (1) states: An encroachment in the floodway which, acting alone or in combination with existing or future similar works, may cause harmful interference shall not be approved. Harmful interference is defined at 323.1311 (h):
'Harmful' interference' means causing an increased state or change in direction of flow of a river or stream which causes, or is likely to cause, any of the following:The Department interprets this rule to mean that an encroachment that causes an increase in stage On Other properties is a harmful interference in that it is likely to cause damage to property. I find that interpretation to be a reasonable one and conclude, based on the foregoing Findings of Fact, that as a matter of law, a permit cannot be issued pursuant to the Floodplain Regulatory Act and promulgated rules.
(i) Damage to property
(iv) Pollution, impairment, destruction of water or other natural resources.
3. Section 7 of the Inland Lakes and Streams Act requires that the Department "shall issue a permit if it finds the structure or Project will not adversely affect the public trust or riparian rights." In this instance, the issuance of a permit would interfere with riparian rights in that floodwaters would be backed-up on the lands of other riparians. Additionally, Section 7 provides: "department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any waters or other natural resources of the state." The issuance of a permit would result in the destruction of wetlands, which has previously been found to be unlawful. Therefore, I conclude as a matter of law, a permit cannot be issued pursuant to the Inland Lakes and Streams Act.
4. Based on the foregoing "Findings of Fact," I conclude that the proposed fill and placement of riprap will cause an unacceptable disruption of aquatic resources. Section 9(4) of the WPA states: "A Permit shall not be issued unless it is shown that an unacceptable disruption will not result to the aquatic resources." The Petitioner did not meet that burden of proof.
PROPOSAL
Based on the foregoing "Findings of Fact" and , "Conclusions of Law", it is Proposed that the Department's denial of A.M. Kowal's d/b/a Dynacorp Development Group, permit application be sustained. I further Propose, the record supports there are no "feasible and prudent" alternatives for development of this site.
Dated:__________________ ______________________________
William C. Fulkerson
Administrative Law Judge
1. Application for Permit, File #88-14-233, as submitted by Dynacorp
Development Group, received March 21, 1988.
2. Letter, Waterford Charter Township correspondence to A.M. Kowal
regarding plan review, dated January 21, 1988.
3. Department's denial letter dated July 26, 1988.
4. Department's request for additional information dated March 28,
1988 and returned with information on April 7, 1988.
5. Department's Public Notice on File No. 88-14-233 dated April 15,
1988 and a copy of the Application for Permit received by Department on
March 21, 1988.
6. Department memorandum from Daniel H. Morgan to Cheryl Rankin dated
May 26, 1988.
7. Department's Project Review Report dated June 22, 1988.
8. Application Review Report by Cheryl Rankin dated July 6, 1988.
9. Department memorandum from James R. Waybrant to Cheryl Rankin dated
July 28, 1988.
10. Department memorandum from Luis Saldivia, Floodplain Control Unit
to DNR File No.88-14-233. Floodplain control Unit Staff Findings dated
May 26, 1988 with reference maps and site photographs by K. Osypczuk and
T. Collins.
11. Waterford Township Flood Insurance Study with accompanying Flood
Boundary and Floodway Map.
12. Certificate of Professional Engineer License for Andrew M. Kowal
issued by the State of Michigan, Department of Licensing and Regulation,
expiration date 10/31/91.