IN RE: WETLAND PROTECTION ACT APPEAL
OF EDWIN KOWALSKI

Cause No.: 85-13-294

The Natural Resources Commission, having considered the Proposal for Decision dated October 3, 1988, 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. 85-13-294, dated October 3, 1988, attached hereto.)

Date
David D. Olson, Chairman
Natural Resources Commission

IN RE: GOEMAERE-ANDERSON WETLAND
PROTECTION ACT APPEAL OF EDWIN KOWALSKI

File No. 85-13-294

Charles R. Toy (P33116)
Administrative Law Judge
October 3, 1988

This matter is a contested case concerning the application of Edwin Kowalski (Petitioner) to place approximately 500 cubic yards of fill and construct a two-bedroom home in a wetland contiguous to Vincent Lake in Section 4, Girard Township (T5S,R6W), Branch County, Michigan.

The hearing was conducted pursuant to the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, MCL 281.701 et seq; MSA 18.595(51) et seq.

PARTIES

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

Petitioner requested the hearing pursuant to Section 17 of the act.

Edwin Kowalski owns the .091 acre filled property in question, which is part of a 90-89 acre parcel consisting of tillable acreage and lake frontage. The larger parcel was originally purchased by Petitioner's father in 1937. In 1973, the entire parcel was deeded to Edwin Kowalski by his father. Prior to this transfer, Petitioner had platted some of the lake frontage as Lake Shore Heights. Although the parcel in question is along the shore of the lake, it is not included in the plat. Petitioner's Exhibit 1 indicates the 90-89 acre parcel as number 400-025-00; the .52 acre building site is shown in green ink, but only .091 acre is involved in this hearing.

In 1975, Petitioner began placing fill on the land involved. Petitioner transported the fill himself from the tillable acreage on the larger parcel.

In subsequent years, Mr. Kowalski continued to move fill to the land involved until 1978 when he hired a local excavating contractor. The contractor moved a substantial amount of fill from the surrounding farmland to the land involved.

In 1985, Petitioner hired another excavator, Curtis Knowles, who brought in more fill from the surrounding farmland to the land in question.

Mr. Knowles first viewed the property in late April 1985. It was obvious to him that someone had previously filled an area approximately 30 feet wide and approximately 200 feet in length starting at Vincent Lake and extending landward. Knowles was contracted to fill an additional 50 feet along the lakefront and upland to square and level with the existing fill. The depth of the fill placed on the property by Knowles varied from six to 18 inches.

Mr. Knowles stated that he did not observe any marshy land. The excavation work was begun during the first week of May 1985 and his truck and front-end loader cut into the soil approximately two inches. The loader weighs approximately 37,000 pounds and the truck had tandem axles and was licensed for 54,000 pounds.

Mr. Knowles observed a clear line between the water of Vincent Lake and solid land. He did not observe any flora or fauna associated with marshy lands, such as cattails, muskrats or ducks. Knowles testified that he once trapped muskrat and the land he filled was not trapping land.

After the filling of the land was completed, construction of the house began with the pouring of footings. Petitioner placed approximately 25 percent of the concrete house footings on the property that is the subject of this hearing.

On September 4, 1985, the Department sent a Cease and Desist Order to Mr. Kowalski requiring him to stop further filling and remove all material that was placed on the land without benefit of a valid permit. DNR Exhibit 2.

On October 7, 1985, Mr. Kowalski applied for a permit under the Goemaere-Anderson Wetland Protection Act. DNR Exhibit 3. In reviewing the application, the Department determined that the proposed project would have a significant adverse impact on the natural resources associated with Vincent Lake and the wetland contiguous to it. DNR Exhibit 6. The application was denied.

The Department determined that it could approve the project if Petitioner removed 25 feet of fill from the lake's edge landward and if he entered into a conservation easement covering the remaining lake frontage in Petitioner's ownership. DNR Exhibit 6.

The land that is the subject of this hearing is in Section 4 of Girard Township, (T5S, R6W) , Branch County, approximately 2.1 miles north of Girard, Michigan. Vincent Lake borders the property on the West. To the south is undeveloped open land and to the north is Lake Shore Heights subdivision. To the east is farm land and pasture.

The application for permit is, for all practical purposes, to allow fill to remain, which forms a right triangle with the lake's edge. The leg of the triangle along the lake frontage is 80 feet and the leg extending at right angles inward from the lake is 100 feet. Approximately one-fourth of the house foundation that has been placed on the parcel is within this filled area.

Petitioner has not previously applied for a permit under the Goemaere-Anderson Wetland Protection Act.

FINDINGS OF FACT

The first issue raised by Petitioner is whether the parcel is a "wetland" as defined by the act. The Girard Township Treasurer, Branch County Clerk and Branch County Register of Deeds all testified that no records kept by their respective offices indicated or dedicated the parcel in question as a wetland. After checking the county records, the Branch County Clerk checked with the Department and learned that no wetland inventory had been done for Branch County.

Section 2(g) of the Goemaere-Anderson Wetland Protection Act defines wetland:

"'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 following:

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

(ii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and more than five acres in size; except this subdivision shall not be of effect, except for the purpose of inventorying, in counties of less than 100,000 population until the Department certifies to the commission of natural resources it has substantially completed its inventory of wetlands in that county."

Petitioner's Exhibit 1, DNR Exhibits 3, 4, 5, 7, 8, 9 and the testimony of Petitioner and Department employee, Mr. Rick Schramm, indicates that the parcel is contiguous to Vincent Lake. I find, as a matter of fact, that Vincent Lake is an inland lake and the parcel involved in this hearing is contiguous to an inland lake. Accordingly, the parcel can be a wetland under Section 2(g)(i) of the act, provided it meets the remainder of the statutory definition of "wetland", without the Department indicating, dedicating or inventorying wetlands in Branch County. Section 2(g)(ii) and (iii) are only applicable if the land is not contiguous to, among others, an inland lake.

The Department's failure to complete sections 18, 19 and 20 of the Goemaere-Anderson Wetland Protection Act "shall not delay implementation of this act". Sec. 19(3).

The second issue presented at the hearing is whether there are wetlands within the filled site that come within the jurisdiction of the act. It is Petitioner's position that the land in question is not wetland and, therefore, is not subject to the Goemaere-Anderson Wetland Protection Act.

At the hearing, Mr. Kowalski described the land as pasture and tillable acreage. The land that goes to the lake is not tillable. Mr. Kowalski described the land near the lake as "marsh land". Although the land is not under water, Mr. Kowalski could not describe it in any other terms other than untillable and "marsh land". Mr. Kowalski stated that marsh grass, poison sumac, maple, ash and mostly tamarack grew at the lake's edge and landward approximately 60 feet. Mr. Kowalski described the wildlife as including "too many deer", no ducks, geese in the last two or three years and no evidence of muskrats since he did not see their houses.

Mr. Rick Schramm was the sole witness called by the Department. Mr. Schramm testified that he held a Bachelor of Science Degree in Natural Resources from the University of Michigan, he was aware of wetlands from his two years as an employee of the Soil Conservation Service and he attended seminars sponsored by the Army Corps of Engineers regarding the identification of wetlands. He worked for the Department nine years and has mapped wetlands for the National Wetlands Register.

Mr. Schramm testified that he has visited the property in question. The land is characteristic of a forested/scrub shrub wetland. This type of wetland is characterized by saturated soils with a water table at or near the surface. Mr. Schramm testified that Mr. Kowalski's testimony was accurate regarding surface water. Only spring rains and snow melt would result in water being visible on the land. The soil type was Houghton muck, which consists of a muck depth of five feet or deeper.

Mr. Schramm stated that the vegetation included tamarack, sage, dogwood, poison sumac, which are all found in wetlands. Also visible was silver maple and black ash, both of which can be found in wetlands and drier soils.

Mr. Schramm testified that he was familiar with the wetland protection act, and based upon his observations of the land, the property in question was a wetland.

The evidence shows that the subject area is populated by vegetation that is wetland-dependent. The land is generally described as forested/scrub shrub wetland, which is consistent with the description of the property given by both Mr. Kowalski and Mr. Schramm. The wetland is contiguous with Vincent Lake, which indicates that the water table is at or near the surface. This wetland is physically connected to a larger wetland complex running along the east and south shore of Vincent Lake. A part of this larger wetland complex is located on other property owned by Petitioner.

I find, as a matter of fact, that the portion of land filled by Petitioner since 1980 is a wetland that is a part of a wetland contiguous to a lake. Therefore, the fill placed on the property since 1980 was placed in a wetland that is regulated by the Goemaere-Anderson Wetland Protection Act. Depositing or permitting the placement of fill material and construction of any development in a wetland requires a permit obtained from the Department. Sec. 5(a).

The act contains criteria for the review of permit applications and mandates that findings be made regarding each criteria. Section 9(1) provides:

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.

A determination of whether the project is in the public interest is made by applying the criteria discussed in the wetland protection act. A permit is necessary to engage in the activity requested, and it is an otherwise lawful activity, except Petitioner requires a permit for construction of the septic system.

Section 9(2) states:

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.

There is no testimony that a public or private need for lakeside homes exists in Branch County. According to the testimony of Mr. Kowalski, he was building a home for his personal use. I find, as a matter of fact, that there is no public or 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.

Mr. Kowalski testified that he owned a larger parcel, which partially surrounds the property in question. Mr. Schramm testified that the land was buildable upland from the lake and from the present building site. Furthermore, even assuming that the present building site was retained, there is no need to fill the subject property to the edge of Vincent Lake. Mr. Kowalski already has a filled walkway to the edge of Vincent Lake on that portion of the property filled prior to enactment of the act.

(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 filling of the wetland permanently eliminates the wetland values present. In order to apply this standard, it is necessary to determine the public and private uses to which the land is suited and to examine the beneficial or detrimental effects of the proposed activity. Also, a determination is made of the benefits the wetland provides. In order to assess these benefits, it is necessary to make a determination of the nature and character of the wetland.

The physical facts and character of the wetland are not in dispute. The overall physical setting for the wetland is best portrayed by DNR Exhibit 8, which is the USGS Burlington Quadrangle 7.5 Minute Series Topographic map. The map shows the location of the subject parcel and the presence of wetlands, which were observed by Mr. Schramm along the northwest and southeast shores of Vincent Lake. Also mapped are wetlands connecting to the south of Vincent Lake adjacent to Round, Pork Barrel, Fox, Musser, Girard, Olney and Hubbard Lakes and along Hog Creek, including its north and south branches. The total wetland identified in Exhibit 8 connecting to Vincent Lake is in excess of 1.25 square miles, most of which is located in sections 9 and 16 to the south of section 4, Girard Township. DNR Exhibit 8. The source of water for the subject wetlands is the drainage area of Vincent Lake and the connecting lakes south of Vincent Lake to lands drained by Hog Creek. The majority of the water flows south from Vincent Lake to Pork Barrel, Round, and Fox Lakes and into Hog Creek, which empties into the Coldwater River.

Mr. Kowalski did not testify as to the value of the wetland. He stated that the land was not tillable to the water's edge and that if the fill and tree stumps were removed, the land would not hold modern farm equipment.

Mr. Schramm viewed the site as a component of a larger wetland system. From a wildlife perspective, Mr. Schramm saw the wetland as fulfilling the needs of deer, rabbit and grouse. He stated the land would not be suitable for fish spawning. The wetland improves the water quality and the quality of the area by providing an aesthetic view to persons on Vincent Lake. Mr. Schramm also testified that the fill would bisect a travel lane for wildlife and possibly eliminate habitat. Although there was no testimony as to how the wetland improved water quality, DNR Exhibit 6 refers to the filtering, water retention and nutrient uptake functions.

The Petitioner has not applied to excavate any part of the wetland. By not removing any muck and placing six to 18 inches of fill over the muck, the present filtering and water retention capabilities would be retained. The fill was taken from upland areas of the larger parcel. DNR Exhibit 9 identifies this soil as Fox, sandy loam. This is well drained soil with very slow to medium runoff. Permeability is moderate in the upper part of the Fox soil and rapid or very rapid in the lower part. Grasses planted on the filled area will serve to retain water and the many surfaces it provides would further serve to filter nutrients.

The aesthetic or scenic value of the wetland for those on the water is highly subjective. Forty feet of the lakefront on Petitioner's parcel has been filled and it is not the subject of this contested case. Widening the filled lakefront area by 80 feet, contiguous to the previously filled 40 feet would not significantly impact the scenic value of the area. Further, the act does not prevent Petitioner from clearing all of his approximately 750 feet of frontage on Vincent Lake. Petitioner Exhibit 1.

There will be no affect on fish. As with all open land, there is some existing potential for wildlife use. Deer and rabbit are found in abundance in upland as well as wetland habitat. The travel lane or wildlife corridor has already been bisected by the area filled prior to passage of the Goemaere-Anderson Wetland Protection Act. I find that there would be very minimal, if any, affect on wildlife. Further, the majority of the land around Vincent Lake is wetland and provides extensive wildlife habitat.

The uses made of the area by the general public are probably minimal. The current private use of the property is also minimal since the land is vacant. The Petitioner's development would increase the private use and enjoyment of the area for the resident of the home that is to be built on the parcel.

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

This proposal concerns .091 acre of land of a total in excess of 1.25 square miles of connecting wetlands. There is no evidence that substantial amounts of wetlands fronting Vincent Lake have been filled. The entire west, south and approximately five-eighths of the east shore of Vincent Lake, which is approximately three-fourths mile long and less than a quarter mile wide, is undeveloped wetland. Only the north shore and the northerly three-eighths of the east shore have been developed. There is no testimony whether the developed building sites on Vincent Lake had been filled. DNR Exhibit 9, which is the Soil Survey of Branch County, Michigan, classifies the developed areas on Vincent Lake as "Aquents, sandy and loamy". This area is described as:

These nearly level, poorly drained soils are in borrow areas and low areas where the landscape has been greatly altered by filling and leveling. The soils are frequently ponded ...

Included with these soils in mapping are small areas of many different sandy and loamy soils that are undisturbed. These included soils make up as much as five percent of the unit.

The soil properties of the acquents vary greatly. They should be ascertained by onsite investigation. The seasonal high-water table is 0.5 foot to two feet above the surface from November through May.

Most of the acreage is idle land. Some areas are used for building site development....

There is no evidence that previous development or the present proposal have affected the water quality or eliminated valuable fish and wildlife habitat. This proposal will retain the primary benefits associated with the existing wetland and, therefore, would not add a cumulative effect to the loss of wetlands around the lake. At least 630 feet of lakefront contiguous to the parcel involved will presumably remain wetland since it is owned by Petitioner, who is aware of the act.

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

The proposed activity will not impact public health, historic or cultural values. The scenic value is highly subjective and admittedly only available to those who have access to Vincent Lake. As previously stated, the scenic buffer of trees and shrubs could be removed by Petitioner without a permit. The only recreational impact would be that this development would provide recreational opportunities to use and enjoy the lake for those who purchased the proposed house. There will be no affect on fish and very minimal, if any, affect on wildlife.

(f) The size of the wetland being considered.

The approximately .091 acre of land to be affected is a part of a wetland approximately 1.25 square miles in size.

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

The wetland extends from the northwest corner of Vincent Lake down the west shore and South from Vincent Lake to Round, Pork Barrel, Fox, Musser, Girard, Olney, and Hubbard Lakes and up and down stream on Hog Creek. (DNR Exhibit 8, USGS Topographic Map). As previously stated, there is a very large amount of wetland in the general area.

(h) Proximity to any waterway.

The project is adjacent to Vincent Lake.

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

The proposed project will have economic value, both public and private. The construction of a home will add to the real estate tax base, providing revenues to local government. The proposed construction of Petitioner's home will have a private benefit to him. The project will have a temporary economic impact on the building tradesmen in the area during the construction of the home. There is no testimony regarding the extent of this economic impact, but it is uncontroverted that it would be temporary.

(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 is no evidence that any other state agency had made a finding of necessity for the proposed activity.

I find, as a matter of fact, after considering all of the foregoing criteria, that an unacceptable disruption of the aquatic resources will not occur if the project is permitted.

In Section 9(4), a two-step evaluation process is necessary for considering a permit application. The first step is to determine if an unacceptable disruption of the aquatic resources will result. In this case, I have found that there will not be an unacceptable disruption of the aquatic resources. The permit application then must be reviewed to determine one of the following: (a) "The proposed activity is primarily dependent upon being located in a wetland" or (b) "A feasible and prudent alternative does not exist." Sec. 9(4)(a) and (b).

The proposed project is not primarily dependent upon being located in a wetland. The construction of a house is not an activity that must occur in a wetland. In fact, in most instances, it is undesirable to locate houses in wetlands because of the kinds of construction problems encountered in areas with high-water tables or unstable soils.

To demonstrate there are no feasible and prudent alternatives, a showing of unique circumstances, truly unusual factors or extreme costs is necessary to prove the impossibility or imprudence of alternatives. Two alternatives were discussed on the record. The home could be located further upland from Vincent Lake so that no part of the project would be located in a wetland.

The fill placed on the development site that is not the subject of this case is approximately .43 acre in size. The addition of .091 acre, which is the subject of this suit, squares the property with a level surface. There are no truly unusual factors or extreme costs associated with building the home further away from Vincent Lake. However, an unusual circumstance potentially exists since 83 percent of the development site was filled before the effective date of the Goemaere-Anderson Wetland Protection Act. Petitioner had invested his time and money in developing a building site on which he could build his retirement home. The proposed activity completes the site development, which amounts to approximately 17 percent of the entire parcel. Is it a unique circumstance when a building site is substantially completed and the final 17 percent of the project is completed after the effective date of the act?

The Department suggests, as an alternative, that fill be removed from the first 25 feet of upland from Vincent Lake for the entire lakefront, which would include 40 feet of shoreland property not the subject of this case.

From the Petitioner's perspective, the only feasible and prudent course of action is to salvage his investment and go forward with the entire project. A feasible and prudent alternative to the proposal may be the removal of 25 feet of fill upland from Vincent Lake for a distance of 80 feet along the waterfront. However, the only effect on natural resources is the possible interruption of wildlife habitat and a travel corridor. As previously discussed, the corridor was already interrupted by the fill placed on the parcel in the 1970s.

The last issue raised by Petitioner is a claim that designation of the parcel as a wetland amounts to a taking. Under the Michigan and United States Constitutions, a taking of private property entitles the owner to just compensation for the value of the property taken. Const. 1963 art. 10, sec. 2; US Const. Am. V.

It has been established doctrine since at least the court's opinion in Pennsylvania Coal Co. v Mahon, 260 US 393, 415; 43 S Ct 158, 160; 67 LEd 322 (1922) that "[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." This established doctrine has been restated and applied from 1922 to the present. See First English Evangelical Lutheran Church of Glendale v County of Los Angeles, 482 US ____; 107 S Ct 2378, 2386; 96 LEd 2d 250 (1987) , Poirier v Grand Blanc Township, 167 Mich App 770, 774; 423 NW2d 351 (1988).

To prevail on a regulatory taking claim, Petitioner must first establish that the regulation has in substance "taken" his property--that is, that the regulation "goes too far". As pointed out by the United States Supreme Court in MacDonald, Sommer & Frates v Yolo County, 477 US _____; 106 S Ct 2561, 2566; 91 LEd 2d 285 (1986), an essential prerequisite to assertion of a regulatory takings claim "is a final and authoritative determination of the type and intensity of development legally permitted on the subject property". Until it is known how far the Goemaere-Anderson Wetland Protection Act goes, it is impossible to determine whether it has gone "too far". Until Petitioner has obtained a final decision regarding his application for permit, it is impossible to tell whether the land retains any reasonable beneficial use or whether existing expectation interests have been destroyed. Id. Issues presented under the Conclusions of Law sub-section of this Proposal for Decision may allow the Natural Resources Commission to apply the Goemaere-Anderson Wetland Protection Act in a way that leads to the conclusion that no taking has occurred.

Therefore, I find, as a matter of fact, that consideration of the regulatory taking claim is premature. Further, the regulatory taking issue would not be addressed in this Proposal for Decision because the record is devoid of any evidence that the land retains no reasonable beneficial use and all existing expection interests or investment-backed profit expectations have been destroyed.

The Department also alleges that the proposed activity would cause pollution, impairment or destruction of a natural resource, which is prohibited by the Michigan Environmental Protection Act, 1970 PA 127, MCL 691.1201 et seq; MSA 14.528 (201) et seq. When two statutes regulate the same subject matter, they must be read together. In this case, the primary statute is the Goemaere-Anderson Wetland Protection Act, which sets forth the standards for activity within regulated lands. A statute that deals specifically with the subject is to be given precedent over one of general applicability. Recognizing those principles, this Proposal for Decision has given the primary weight to the wetland protection act, which deals specifically with the subject matter.

No evidence was introduced to show that the proposed activity would cause pollution of a natural resource. Mr. Knowles testified that he placed no fill in Vincent Lake and that a clear line existed between water and solid land. There was no testimony that run off or soil blowing is evident. The filtering, water retention and nutrient uptake functions of the land is discussed above.

I find, as a matter of fact, that no impairment or destruction of a natural resource has or is likely to occur. The natural resources involved in this case are natural wildlife habitat and a wildlife corridor, which provides continuity with contiguous natural areas. These have previously been found to be natural resources that the legislature intended to protect. See Kimberly Hills neighborhood Assn v Dion, 114 Mich App 495, 505; 320 NW2d 668 (1982) lv den 417 Mich 1045 (1983). The impact of Petitioner's proposed activities on these natural resources was previously addressed in this Proposal for Decision.

CONCLUSIONS OF LAW

1. The Petitioner is the applicant for a permit to engage in activity that requires a permit under the Goemaere-Anderson Wetland Protection Act.

2. Based on the foregoing "Findings of Fact", I conclude as a matter of law that the activity will not cause an unacceptable disruption of the aquatic resources.

3. I conclude that the project is not wetland dependent.

4. In order to grant the Petitioner a permit, it must be found that "a feasible and prudent alternative does not exist." Sec. 9(4)(b). I conclude that there is a reasonable and prudent alternative to the proposed activities. The .52 acre building site is a part of a 90-89 acre parcel on which Petitioner could construct a home. The house could be placed on the .43 acre parcel that was filled before the effective date of the act.

I reach this conclusion of law based on the clear and unambiguous language of Sec. 9(4) (b) , which I am statutorily constrained to follow. However, the "feasible and prudent alternative" standard presents the difficult question posed by Petitioner's application for permit.

In determining what are feasible and prudent alternatives, two components are reviewed. Feasibility and prudence relate to other methods of accomplishing the same thing and the economic consequences of doing things differently.

The project could be constructed somewhere else upland from Vincent Lake. If the house is constructed where the footings have been placed, the proposed activity must be evaluated to determine if a different construction design of lesser impact could be pursued. The construction measures used are such that the primary benefits of wetland are retained. There was no removal of muck soils and the .091 acre of fill will aid in water retention and the attenuation of pollutants. A total of 500 cubic yards of fill was spread six to 18 inches over the land.

From the perspective of this opinion, the two real issues are an economic one and, whether .091 acre of fill contiguous to .43 acre of fill rises to the magnitude of harm sought to be protected by the act.

From an economic standpoint, Petitioner has already expended the monies to fill the land and prepare a suitable building site. Additionally, Petitioner has partially lost the value of a lakefront lot for development purposes. Are these costs extraordinary to the extent necessary to show unique circumstances or extreme costs? This is a question that was not answered in this proceeding. There is minimal guidance from the courts or precedent to aid in the practical application of this standard. This case presents the opportunity for the Natural Resources Commission to address the issue in a context that will provide guidance in future applications.

There are a number of parallel cases pending where an individual has acquired lakefront property to build a home or small development. If that development can occur without an unacceptable disruption of the aquatic resources, how is it to be determined if the costs are extraordinary? For most individuals, the loss of the value of a lakefront lot for development purposes is financially devastating. The same may not necessarily be true for a large real estate development company. Should the Department allow development to proceed to a point where a financial loss is avoided? These are the types of issues that can be expected to recur. This case presents the opportunity for clarification.

The remaining issue is whether, from a statewide or local perspective, the proposed development will actually interfere with the wetland. A review of all the applicable criteria clearly indicates a strong public policy for the protection of wetlands. The language of the statute is replete with statements that embody this concern. For example, the act states at various places:

"Wetland conservation is a matter of state concern";

"A loss of a wetland may deprive the people of the state of some or all of the following benefits to be derived from the wetland";

"The decision shall reflect the national and state concern for the protection of natural resources from pollution, impairment and destruction."

Studies have estimated that the United States has lost approximately 54 percent of its wetlands and Michigan has lost 71 percent of its wetlands. The uses and values of wetlands have been identified and increased public awareness has resulted in protection programs.

The Goemaere-Anderson Wetland Protection Act does not contain a "grandfather clause" to address the situation presented here. If the activity will cause only minimal adverse affects on the wetland and there is only minimal cumulative adverse affects on the wetland, should an applicant be permitted to complete a project started before the effective date of the act? Is there a de minimis impact on the wetland that amounts to unique circumstances allowing permit approval? A de minimis impact includes no loss of functional values within the impacted wetland and no net loss to the wetland resources.

The only guidance to a de minimis impact are the categories of minor activities established in Sec. 10 of the act, as defined in R281.921(f) , and the definition of wetland including, inter alia, more than five acres if not contiguous to the Great Lakes or an inland lake or stream. The potential cumulative effect of the activity must be considered in any de minimis analysis. It would take 55 applications for the proposed activity to fill one five-acre wetland.

The issue presented here is more complex because 83 percent of the project was completed before the effective date of the wetland protection act. If the project has a minimal impact on a wetland, such as affecting less than one-tenth of an acre, should the Department allow a "grandfathering" of the project? This case presents the opportunity for clarification of this issue.

5. I conclude that the proposed activity will not cause pollution, impairment or destruction of a natural resource protected by the Michigan Environmental Protection Act, 1970 PA 127. This conclusion of law is reached by applying the standard set out in Kimberly Hills Neighborhood Assn, supra, p 508. A balancing of the rarity of the resources involved against the magnitude of the harm likely to result does not amount to the requisite statutory impairment or destruction. The disappearance of .091 acre of habitat or corridor areas will not have a significant impact on the affected wildlife population in Michigan or even in the connecting 1.25 acre wetland, whichever perspective is used, "statewide" or "local". See Rush v Sterner, 143 Mich App 672, 680, n 1; 373 NW2d 183 (1985) lv den 430 Mich 874 (1988)

6. Although several alternatives to the activity were proposed, I conclude, as a matter of law, that mitigation, as authorized by Sec. 10(2) of the act is not applicable. Under R281. 925 (3) , "mitigation shall not be considered when it is feasible and prudent to avoid impacts or when the impacts would be otherwise prohibited under the act". Paragraph 4 of this subsection concludes that there is a reasonable and prudent alternative to the proposed activities, which would avoid impacts on the wetland. Therefore, mitigation cannot be considered.

PROPOSAL

Based on the foregoing findings of fact, conclusions of law and strict interpretation of Sec. 9(4) (b) , it is proposed that the Department's denial of Edwin Kowalski's application to place approximately 500 cubic yards of fill and construct a two-bedroom home on a wetland contiguous to Vincent Lake in Section 4, Girard Township (T5S, R6W) Branch County, Michigan be sustained.

Dated: October 3, 1988

Charles R. Toy (P33116)
Administrative Law Judge