IN RE: Goemaere-Anderson Wetland Protection Act
Appeal of George and Shirley Leikert
File No. 88-6-387W
FINAL DETERMINATION OF NATURAL RESOURCES COMMISSION
The Natural Resources Commission, having considered the Proposal for Decision dated July 11, 1990, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the matter, hereby determines and orders that:
The Proposal for Decision is adopted and affirmed in is 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. 88-6-387W, dated July 11, 1990, attached hereto.)
_________________________
Date Thomas J Anderson, Chairman
Natural Resources Commission
IN RE: Goemaere-Anderson Wetland Act 203
Appeal of George and Shirley Leikert
File No: 88-6-387W
PROPOSAL FOR DECISION
This matter is a contested case hearing arising from the denial of a Wetland Act permit to fill a regulated wetland located on Lime Lake in Cleveland Township, Leelenaw County, Michigan.
Jurisdiction
The hearing was conducted pursuant to the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, as amended, MCL 281.701 et sea; MSA 18.595(51) et sea. The proceeding was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended.
Parties
1. The professional staff of the Department of Natural Resources is charged with the day to day administration of the Wetland Act.
2. Mr. and Mrs. George Leikert are the applicants for a permit. Mr. Leikert appeared in pro per. They requested a contested case hearing pursuant to Section 17 of the Wetland Act.
Findings of Fact
The Petitioners are owners of a parcel of land located on the shore of Lime Lake which they purchased in May of 1985. Petitioners' application requested that they be allowed to place approximately 50 cubic yards of fill material in a wetland area measuring 301 by 301 to a depth of 1.5 feet to construct a residential garage.
Petitioner testified they currently have a garage, but that because of a utility area inside the garage, it can only fit one car. They requested a permit to fill to construct an additional garage to store an automobile, boat and miscellaneous lawn and garden equipment. Petitioners request for a permit was denied.
Is subject property a wetland?
A 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. MCL 281.702; MSA 18.595(52).Subject property is contiguous to Lime Lake.
Stuart Kogge is employed by the Department of Natural Resources as a Water Quality Specialist. His duties include reviewing applications and administering various statutes including the Wetland Protection Act. On October 20, 1988, pursuant to Petitioners' request for a determination, Mr. Kogge performed a site inspection. A follow up site inspection was also performed on October 10, 1989 pursuant to Petitioners' application. The site's soil was saturated at or near the surface. Mr. Kogge indicated there was wildlife, typical of the wetlands in this area, but that he did not personally view any. The soil was classified as muck, which is predominantly characteristic of a wetland and that the predominant trees consisted of maple and birch. Mr. Kogge opined that subject property was a wetlands.
Petitioner testified he has seen various wildlife on his property including black squirrels, possum, raccoon, deer, geese, swans and an endless variety of birds. He has also seen frogs, toads and an endless variety of insects. However, he testified that this particular area, the proposed project site, has less wildlife and insects than other portions of his property. Petitioner further stated that he wasn't disputing that this was a wetlands.
Petitioner presented no evidence to contest the finding that subject property is 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.
It is this hearing officers finding of fact that subject property is a wetland subject to regulation.
Should a permit be granted?
The Act contains criteria for the review of permit applications and mandates that findings be made regarding each criteria. Section 9(l) 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 at Section 9(2). That provisions 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:Based on the parties' testimony, there is no public need for this project. There are other reasonable alternatives available for Petitioners to accomplish their purpose.(a) The relative extent of the public and private need for the proposed activity.
Petitioners currently have a house and two car garage on their property. Alternatives proposed by the Department included building the structure upland. Petitioner testified that the proposed structure could not be built on that area due to setback requirements. However, a smaller building, able to fit most of the storage items, could be so built. This alternative balances the private need to use the property versus the public interest in preserving wetlands. Petitioner offered no alternative to building on the wetland.(b) The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.
Mr. Kogge provided expert testimony regarding wetlands. He stated that the wetland provides a water quality function by filtering and recharging the area. Further, the proposed project would reduce the habitat in the area and have a negative cumulative impact.(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.
(d) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed.
No testimony was presented regarding the remaining Petitioners' request for a permit would have a cumulative adverse environmental effect.
The project would have a detrimental effect on the wildlife and aquatic life in the area. Petitioner testified that there is numerous wildlife on the property.(e) The probable impact on recognized historic, cultural, scenic, ecological, or recreational values and on the public health or fish or wildlife.
Petitioner stated that the proposed garage would be visually more attractive than the current storage arrangements. The alternative proposal offered by the Department would have the same effect.
There is no economic value of the project to the public. Petitioners can still enjoy the use of their property by the alternatives presented by the Department.(f), (g) and (h) The size of the wetland, the amount of remaining wetland in the general area and the proximity to local waterways have previously been addressed.
(i) Economic value, both public and private, of the proposed change to the general area.
FINDINGS
1. The Goemaere-Anderson Wetland Protection Act, as amended, provide the standards for permit consideration. The Petitioners have applied for a permit to fill pursuant to Section 5 of the Act.
2. The subject property is a wetland and subject to regulation by the Act.
3. Petitioners request for a permit should be denied because they have failed to establish that the activity is in the public interest; the permit should not be issued because the proposed activity is not primarily dependent upon being located in an wetland and there are feasible and prudent alternatives.
Karen L. Kayes
Administrative Law Judge
Date:_____________________
EXHIBIT LIST
Petitioner's Exhibits
1. Drawing of the area showing the proposed project site.
Respondent's Exhibits