IN RE: Goemaere-Anderson Wetland Protection Act Appeal of Robert J. Levy, Sr. and Joe Kostiuk
File No. 88-09-202W
FINAL DETERMINATION OF NATURAL RESOURCES COMMISSION
The Natural Resources Commission, having considered the Proposal for Decision dated May 30, 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. 88-09-202W, dated May 30,
1990, attached hereto.)
December 6, 1990 ____________________________
Date
Thomas J. Anderson, Chairman
Natural Resource Commission
IN RE: Goemaere-Anderson Wetland
Protection Act Appeal of Robert J. Levy, Sr. and Joe Kostiuk
Cause No. 88-09-202W
PROPOSAL FOR DECISION
Kimberly Miles Rainey
Administrative Law Judge
This matter is a contested case hearing arising from the denial of a Wetland Act permit to fill a regulated wetland located on Fremont Lake in Sheridan Township, Newago County, Michigan.
Jurisdiction
The hearing was conducted pursuant to the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, as amended, MCL 281.701 et seq; MSA 18.595(51) et seq.
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. Robert Levy, Sr. and Mr. Joe Kostiuk are the applicants for a permit. They requested a contested case hearing pursuant to Section 17 of the Wetland Act.
Findings of Fact
The Petitioners are owners of land fronting on Fremont Lake. In approximately
1939 a dam was built on the lake causing the water level in the lake to
rise approximately 2 feet and thereby reducing Petitioners' lake frontage
25 to 30 feet and which further created a wetland on Petitioners' property.
The approximate dimensions of the wetland are 250 by 300 feet. Petitioners'
application requested that they be allowed to place approximately 6,900
cubic yards of fill in the wetland area to control erosion.
Petitioners testified that during their period of ownership, the shoreline on their property has eroded by 25 to 30 feet. Petitioners requested that they be permitted to build a retaining wall at the current water level and fill in the wetland to prevent further erosion. 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:Subject property is located contiguous to Fremont Lake.(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)
Pete Kailing is employed by the Department of Natural Resources as a Water Quality Specialist 6. His duties include reviewing applications and investigating violations of the State's water related statutes, including the Wetland Protection Act. On June 1, 1988 pursuant to Petitioners' request for a permit, Mr. Kailing performed a site inspection. He observed the area to be affected by water levels. The site's soil was saturated. It was almost impossible to walk on. It was heavily vegetated with scrub willows, cattails, dogwoods and other indicators of a wetland. The soil was classified as muck, which is predominantly characteristic of a wetland. Mr. Kailing opined that subject property was a wetland.
Petitioners argue that the "wetland" was created sometime around 1939 when a dam was placed at the mouth of the river feeding Fremont Lake, causing the water level to rise approximately 2 to 3 feet. Petitioners state that it is not fair to subject their property to regulation because the property was not saturated prior to the placement of the dam. The Department stipulated that the "wetland" was probably created after construction of said dam.
Can the State regulate an artificially created wetland?
This very issue was addressed in the recent Michigan Court of Appeals decision of Citizens Disposal, Inc v DNR., 172 Mich App 536 (1988). Citizens Disposal (hereafter, Citizens) sought a permit to fill approximately 3 acres of wetland. Citizens argued that subject property was not subject to the Wetland Protection Act because the wetland conditions were artificially created by the redirection of the drainage patterns when US 23 was constructed during the early 1950,'s.
In that opinion the court stated:
"Wetland conservation is a matter of state concern, that the loss of a wetland may deprive the people of the state enumerated benefits to be derived from a wetland." Citizens Disposal, Inc. V .DNR, 172 Mich App 551 (1988).The Court concluded that it was irrelevant whether the wetland was created by natural or artificial means. Its mere existence provides the people of the State of Michigan with unenumerated benefits. If the legislature had meant to exempt artificially created wetlands, it should have done so specifically.
Petitioners presented no arguments 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 f act 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 f findings be made regarding each criteria. Section 9(i) 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 provision 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.
Alternatives proposed by the Department included a retaining wall constructed of rip rap, broken concrete, fieldstone or inert clean material to be placed landward of the wetland interface which is substantially upland of the current water line. This alternative balances the private need to use the property versus the public interest in preserving wetlands. Petitioners offered no alternatives to building at the current water land interface.(b) The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.
Mr. Kailing provided expert testimony regarding wetlands. He stated that wetlands in general, and this one in particular, provides a beneficial maintenance of water quality. It acts as a kidney and filtering and prevents excess nutrients from entering the lake. Further, subject wetland helps keep the lake healthy. The proposed project would have a permanent detrimental affect on the public due to the detrimental effects on the lake itself, its recreational value, public health, fisheries and wildlife.(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.
There is very little remaining wetland in this corner of Fremont Lake. Although a 250 ft. x 300 f t. area does not seem large, in relation to the remaining wetlands on the lake,, granting Petitioners' request for a permit would have an adverse environmental effect.
Petitioners of f ered no testimony to contradict that presented by Mr. Kailing regarding the wetland characteristics of subject property.
The project would have a detrimental effect on the fisheries and wildlife. A visit to the property showed there were songbird nests, scattered tracks of small mammals, raccoons, mallards and evidence of other small mammals. The open shoreline provides good fishery habitat. Further, the opinion from fisheries was that the proposal would have a negative impact.(e) The probable impact on recognized historic, cultural, scenic, ecological, or recreational values and on the public health or fish or wildlife.
There is no economic value of the project to the public. Petitioners can still enjoy the use of their property by any of the alternatives presented by the: Department.(f),(g) and (h) The size of the wetland, the amount of remaining uretland 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.
Reference is also made to Respondent's Exhibit 7 where, Mr. Paul Edbrooke, Chairman, Newaygo Soil Conservation District wrote:
The Newaygo Soil. Conservation District has serious concerns regarding both filling in of wetland area adjacent to lake and erosion control provisions if work is completed.Again, Petitioners offered no rebutting testimony.Serious problems regarding water quality exist on Fremont lake at present. Fiirther filling of wetland areas will cause continued deterioration. (Also filling 2 feet of depth will cause some of the trees shown in the diagram to die.)
FINDING
1. The Goemaere Anderson Wetland Protection Act, as amended provide the standards for permit consideration. The Petitioners have applied for a per-mit to fill pursuant to Section 5 of the Act.
2. I conclude that a wetland, even though created by artificial means, is 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 a wetland and there are feasible and prudent alternatives.
Kimberly Miles Rainey
Administrative Law Judge
Date: May 30, 1990
EXHIBIT LIST
Petitioners' Exhibits
1. Aerial photograph of the area.
2. Aerial photograph.
3. Area map made by the DNR in 1952 showing that two islands are now
gone because of the dam construction
4-9. Photographs
Respondent's Exhibits
1. June 21,1988 Letter from Chuck Kenney
2-6: 8 ½ x 11 maps of subject property
7. June 6, 1988 Letter from Newaygo Soil Conservation District.