SUBJECT: Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition James Kowall
File No. 97-5-153

This case involves the Department of Environmental Quality's denial of a permit application filed by James Kowall under the provisions of the Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended. MCL 324.30301 et seq.; MSA 13A.30301 et seq. The permit application proposes to place fill in a wetland in order to create access to the Green River for four residential lots. A petition for a contested case hearing was filed on December 13, 1997, by Mr. Kowall. A hearing was held in this matter on May 20, 1998.

The hearing was requested under the provisions of Part 303, Wetland Protection, of NREPA, MCL 324.30301 et seq.; MSA 13A.30301 et seq., and the administrative rules. It was conducted pursuant to the provisions of the Michigan Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560 (101) et seq.

The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a final agency decision pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.

James Kowall is the applicant for a permit pursuant to Part 303 and is the Petitioner in this case. The professional staff of the Department of Environmental Quality (Department) is charged with the day-to-day implementation of Part 303 and is the Respondent in this case. The Petitioner represented himself throughout the course of the proceedings. The Respondent was represented by Fred Gottschalk, Contested Case Supervisor, Land and Water Management Division.

The Petitioner testified on his own behalf. The Respondent presented four witness: John A. Arevalo, Land and Water Management Division; Douglas Morgan, Chief Engineer, Parks and Recreation Division-Michigan Department of Natural Resources (MDNR); Vicki Anthes, Landscape Architect, Parks and Recreation Division-MDNR; and Larry Lehman, Assistant Chief, Michigan Department of Commerce and Industry Services-Bureau of Construction Codes.

Thirty-three exhibits were entered into the record. A list of the exhibits is attached to this Final Determination and Order.

In formulating this Final Determination and Order, this Tribunal must consider the likelihood of this permit action resulting in a constitutional taking. Property Rights Preservation Act, 1996 PA 101, as amended; MCL 24.421 et seq.; MSA 3.560(421). In fulfilling this requirement, the Takings Assessment Guidelines have been considered in regard to the facts in this case.

Mr. James Kowall (Petitioner) is the owner of four lots located near Bellaire in Antrim County, Michigan. The lots are adjacent to each other and the Grass River forms the westerly edge of the parcels. The Petitioner desires to sell these parcels for potential residential development. There is sufficient upland on the parcels to construct residences, however, there are over 400 feet of wetland between the upland and the Grass River. The Petitioner's application requests a permit to place 130 cubic yards of fill in the wetland to provide a single access to the Grass River for all four lots. The fill would be placed in an area 416 feet long by 10 wide feet. The application also requests an area of fill for a turn-around near the River. The proposed turn-around was withdrawn by the Petitioner and is not considered in this Final Determination and Order.

The Parties entered into the following stipulations:

1) The Petitioner is the proper applicant for a permit.

2) The processing of the application was procedurally correct.

3) The activity proposed in the application is regulated and a permit from the Department is required.

4) The wetland at issue is a high quality, regionally significant wetland.

5) The admissibility of the Department's Exhibits R-1 through R- 18 and Petitioner's Exhibits P-19 through P-34.

I find these stipulations are legally correct, and I adopt them as findings. Stipulations entered into by the parties shall be used as evidence at the hearing and are binding. MCL 24.278; MSA 3.560(178); Dana Corporation v. Employment Security Commission, 371 Mich 107, 110 (1963).

The first issues which must be addressed are whether or not the subject property is a wetland as defined by the Act, and if so, whether a permit is required for the proposed activity. The Party's stipulations address these two issues. Based upon the factual stipulations, I find, as a Matter of Fact, the activity is proposed in regulated wetland and a permit is required for the proposed activity.

Section 30304 prohibits the deposit or placing of fill in a regulated wetland without the benefit of a permit from the Department. MCL 324.30304. To issue a permit for the fill requested by the Petitioner, the criteria of §30311(1) must be considered. It states:

(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.

MCL 324.30311(1).

Section 30311(2) provides the criteria for determining of whether the project is in the public interest. MCL 324.30311(2).

(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.

The Petitioner's need for fill is of a purely private nature, that being to provide access to the Grass River for four residential lots. Mr. Arevelo agreed as regarding the private need for access, but refuted Mr. Kowall's need to provide access by placing fill in the wetland. Mr. Arevelo testified there are methods available other than placing fill to accomplish the private need for access. I find, as a Matter of Fact, the private need for access to the Grass River is relatively great. As regarding the method of providing the access, that issue is discussed under feasible and prudent alternatives.

The public need for the proposed activity is not nearly as great as the private need. I find, as a Matter of Fact, the public need for the proposed activity is negligible.

(b) The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.

The issue in this case is not one of alternative locations but one of alternative methods to accomplish the expected benefits of access to the River. Mr. Arevelo testified that an elevated walkway or boardwalk is a feasible and prudent alternative method to placing fill in this high quality, regionally significant wetland. In his opinion, a boardwalk would have minimal impacts on the wetland functions, while placing fill in this wetland would cause a significant impact to the aquatic environment. In support of his opinion regarding the feasibility and prudence of a boardwalk, he proffered four wetland permits issued for boardwalks in this general area. See Exhibits 5, 6, 7, 8.

Mr. Kowall does not agree that a boardwalk is a feasible and prudent alternative to the proposed fill. He testified that "just the thought of having to build a boardwalk over 400 feet long and 10 feet wide is ridiculous". He argues that constructing a boardwalk is not feasible because it cannot be constructed in accordance with the American Disabilities Act (ADA) or the Building Officials Council of America Code (BOCA Code). Mr. Kowall also testified a boardwalk is not prudent because of the expense involved to construct it. He submitted several letters and documents regarding his objections to the proposal to construct a boardwalk as opposed to placing fill. See Exhibits 19, 20, 21, 22, 23, 24, and 25.

Douglas Morgan, Chief Engineer with the Parks and Recreation Division of the MDNR, is an expert in the design of boardwalks. He testified he has designed two or three boardwalks through wetlands and all of them have fared well. He reviewed the soils map of this area and stated the soils are Tawis series consisting of 12 to 48 inches of muck on top of sand. Mr. Morgan opined a boardwalk could be constructed in these soils which would comply with the ADA and the BOCA Code and it would be safe.

Vicki Anthes is a landscape architect with the Parks and Recreation Division of the MDNR. She is responsible for assuring State Park projects are built in accordance with the ADA. She testified a boardwalk that complies with the ADA could be constructed in this area.

Larry Lehman is employed by the Michigan Department of Commerce and Industry Services-Bureau of Construction Codes as Assistant Chief. He supervises and trains staff to review building plans for compliance with the BOCA Code. Mr. Lehman testified a boardwalk can be built which complies with the BOCA Code, and Mr. Kowall's concerns regarding the construction in organic soils are unfounded.

Based on the above testimony, I find as a Matter of Fact, it is feasible to construct a boardwalk through this wetland for access to the Grass River.

As regarding the prudence of constructing a boardwalk in this wetland, Mr. Morgan testified that the project proposed by Mr. Kowall would require dredging the muck soil out and replacing it with clean fill. He opined a boardwalk would be less expensive than dredging and filling. Mr. Kowall did not apply for dredging the muck soils, but wants to place gravel on top of the muck. For the first 200 feet from the upland he proposes to place 6 inches of fill, and for the remaining 216 feet 9 inches of fill. Mr. Arevelo was on-site and testified the muck is more than 8 inches deep. He believes Mr. Kowall's proposed fill of 130 cubic yards is greatly underestimated and would not provide a stable surface. Mr. Kowall did not investigate the depth of the muck, whether fill without dredging would work, or whether the amount of fill he proposed was sufficient for the purpose.

I find, as a Matter of Fact, it is questionable whether the Petitioner's proposed fill without dredging would work. I find, as a Matter of Fact, the amount of fill proposed in the application is insufficient to serve his purpose. Based on the testimony of Mr. Morgan, I find, as a Matter of Fact, it is prudent to construct a boardwalk across this 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.

The proposed activity would result in filling an area of wetland over 400 feet long and 10 feet wide with 130 cubic yards of fill. The beneficial effect, regarding private uses, is questionable because the amount of fill proposed is insufficient to meet Mr. Kowall's needs. Mr. Arevelo testified the proposed project poses potential adverse impacts upon the water circulation, wildlife and water quality of the area. See also Exhibit 4 - Project Review Report. Placing fill in this area would result in a permanent loss of wetland in the fill area itself and disrupt water circulation and flow patterns in the general area according to Mr. Arevelo.

I find as a Matter of Fact, the proposal would cause a permanent disruption to the uses of this wetland. I find, as a Matter of Fact, the potential benefit to Mr. Kowall is speculative as the amount of fill proposed may not fulfill the purpose.

(d) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed.

Mr. Arevelo testified there is substantial development pressure along the Grass River between Grand Traverse and Charlevoix Counties. The Grass River Natural Area consists of approximately 1,101 acres of preserved natural area along the River, of which approximately two-thirds is wetland. I find, as a Matter of Fact, there is little potential for cumulative impacts of this proposed fill with those existing or anticipated in the future.

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

The proposed activity will not threaten historic or cultural values or fish. Although Mr. Kowall is of the opinion the alternative boardwalk poses a threat to the public health because it could not be properly constructed to meet the ADA and BOCA Code, this concern is dispelled by the expert testimony. Supra. The scenic value is subjective. The impact upon the recreational value is positive in that by providing access to the River recreational opportunities are enhanced. However, this value is protected by the alternative of a boardwalk.

Mr. Kowall testified that a boardwalk would interfere with movement of deer through the area. However, Mr. Arevelo testified that deer could jump over a boardwalk, or it could be constructed to allow them to pass under it. The greatest impact of the proposed project is the potential effect to the ecological benefits this wetland provides. I find, as a Matter of Fact, that the proposed activity poses adverse impacts to the benefits this wetland provides. Conversely, I find, as a Matter of Fact, a boardwalk would preserve the benefits of access while having very little impact on this "high quality, regionally significant wetland".

(f) The size of the wetland being considered.

The size of the entire wetland complex is not in evidence. Mr. Arevelo testified about 32 of the 35 acres owned by Mr. Kowall is wetland.

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

Again, the amount of wetland remaining in the general area is unknown, but there appears to be a substantial amount.

(h) Proximity to any waterway.

The proposed activity is adjacent to the Grass River.

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

Mr. Arevelo testified there is limited public economic value associated with the proposed land change because the property is privately owned. The proposed land change would add some private economic value to the general area as the value of the lots would be greater with access to the River. However, this economic value can be preserved by constructing a boardwalk.

After considering each of the above criteria, §30311(2) requires a balancing of the benefits against the reasonably foreseeable detriments of the activity to determine if the activity is in the public interest. In balancing these criteria, I find as a Matter of Fact, the proposed project is not in the public interest.

Section 30311(1) also requires a determination as to whether the permit is necessary to realize the benefits derived from the activity. The benefit derived from the proposed activity is access to the Grass River. I find, as a Matter of Fact, the permit as requested is not necessary to realize the benefits derived from the proposed activity. The third determination required by this section is whether the activity is otherwise lawful. Mr. Arevelo testified the proposed activity would be otherwise lawful and I so find. However, a permit under Part 303 does not negate the requirement to obtain other necessary federal, state and local permits. See 1988 AACS, R 281.923(6).

Section 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 finding of necessity made by other state agencies.

Section 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 30302 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.

Based on the previous Findings of Fact, an unacceptable disruption to the aquatic resources would result from Mr. Kowall's proposed fill activity. I also find, as a Matter of Fact, an unacceptable disruption to these resources would not result from the installation of a boardwalk. The activity is primarily dependent on being located in the wetland because there is no other way for these lots to have access to the Grass River. I find, as a Matter of Fact, the construction of a boardwalk through the wetland to facilitate access to the River is a feasible and prudent alternative to the activity proposed in the application for a permit.

Based on the Findings of Fact, I conclude as a Matter of Law:

1. The subject property is a wetland which is contiguous to the Grass River. Thus, it is a regulated wetland and a permit is required for the proposed activity. MCL 324.30304.

2. The proposed activity is not in the public interest.

3. There is a feasible and prudent alternative method to the proposed activity. MCL 324.30311(2)(b) and MCL 324.30311(4)(b).

4. The proposed activity will cause an unacceptable disruption to aquatic resources. MCL 324.30311(4).

5. The proposed project is dependent on being located in the wetland. MCL 324.30311(4).

6. The Department does not have jurisdiction to administer either the ADA or the BOCA Code. The Applicant is responsible for obtaining other necessary federal, state and local permits. 1988 AACS, R 281.923(6).

Based on the Findings of Fact and Conclusions of Law, it is DETERMINED the Petitioner's application to place fill in the wetland should be denied.

THEREFORE, IT IS ORDERED: The Petitioner's application for a permit, made under File No. 97-5-153, is DENIED. Access from the upland portion of the property to the banks of the Grass River could be accomplished by a boardwalk or elevated walkway. A permit for such shall be issued by the Department if the Petitioner submits a suitable plan within 60 days of the date of this Order.

Dated: October 29, 1998
Richard G. Lacasse, Chief
Administrative Law Judge

Petition of James Kowall
File No. 97-5-153

1 Letter dated May 19, 1997, from Mrs. Elva S. Kowall to Mr. John A. Arvelo, Department of Natural Resources (DNR).
2 Letter dated June 19, 1997, from Mr. John A. Arvelo (DNR) to Mrs. Elva S. Kowall.
3 Application for the Permit and Public Notice dated June 27, 1997 on File No. 97-05-0153W.
4 Project Review Report dated 7/17/97 on Application Number 97-5-153.
5 Cover letter and permit signed by Mr. John A. Arevalo to Grass River Natural Area, Inc. Date of Issuance: November 24, 1992.
6 Permit for Minor Project Activities signed by Mr. John A. Arevalo to Mr. Paul A. Trumble. Date Issued: August 5, 1994.
7 Application for Permit, DNR File No. 94-05-0363, Issued to the Village of Elk Rapids. Issued: February 7, 1995.
8 Permit for Minor Project Activities, Permit No. 96-5-385, Issued to: Grass River Natural Area. Date Issued: 10/29/96.
9 Certified letter dated August 13, 1997 to Mr. James Kowall from Mr. John Arevalo.
10 Letter dated November 7, 1997 to Mr. James Kowall from Mr. Hal Harrington, Acting Field Coordinator, Land & Water Management Division, Department of Environmental Quality (DEQ).
11 Description of River Lakes Village, Lots 1, 2, 3, and 4, prices and map.
12-18 Colored Photographs, 4" x 6", all signed by Mr. John Arevalo, MDEQ, 97-5-153 and dated 04/14/98.

Petitioner Exhibits

19 Letter dated May 16, 1998 from Mr. James L. Kowall Associates to Mr. Fred Gottschalk, MDEQ, LWMD.
20 Letter dated May 4, 1998 from Mr. James L. Kowall Associates to Mr. Fred Gottschalk, MDEQ, LWMD.
21 Petition for Contested Case Hearings, 97-6-153, signed by James L. Kowall on December 13, 1997.
22 Letter dated October 1, 1997 from Mr. James L. Kowall Associates to Mr. Hal Harrington, MDEQ, LWMD. Receipt for Certified Mail stamped in Bellaire on October 2, 1997.
23 Letter dated November 7, 1997 from Mr. James L. Kowall to the Gaylord Office, MDEQ, LWMD.
24 Letter dated August 22, 1997 from Mr. James L. Kowall to the Gaylord Office, MDEQ, LWMD.
25 Packet begins with a Facsimile Transmission Report dated 09/05/98 from James L. Kowall, Rupp & Keen Better Homes and Gardens Real Estate to Mr. Hal Harrington, DEQ.
26 Application for Permit from James L. Kowall (and wife) Elva S. Kowall signed June 2, 1997.
27 Letter dated June 2, 1997 from Mr. James L. Kowall to the Permit Consolidation Unit, MDEQ, LWMD and a Certification of Mailing receipt dated June 3, 1997.
28 Letter dated August 29, 1995 from Ron Boss, Division of Environmental Health, District Health Department No. 3 to Mr. James L. Kowall.
29 Letter dated July 23, 1997 from Mr. James L. Kowall to Ms. Gloria Torello, MDEQ, Gaylord District Office.
30 Letter dated December 5, 1997 from Mr. Richard G. Lacasse, Office of Administrative Hearings, MDEQ to the Parties.

Petitioner Exhibits - Continued

31 Description of River Lakes Village, Lots 1, 2, 3, and 4, prices and map.
32 Letter dated November 7, 1997 to Mr. James Kowall from Mr. Hal Harrington, LWMD, DEQ.
33 Letter of Transmittal dated November 21, 1989 from Lennox and Associates, P.C. to Voice and Associates and a map with wetland definition line located.
34 A envelope with 25 Colored Photographs, 4" x 6".