SUBJECT: Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Luna Pier Harbor Club on permits issued to Kenneth J. Derbeck, Bradley S. Laking and Thomas M. DeBruyne

File No. 94-10-0113, 94-10-0356, and
94-10-0273
__________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated January 26, 1999. The Office of Administrative Hearings gave the Parties until February 19, 1999, to file written Exceptions to the Proposal for Decision. On February 19, 1999, Luna Pier Harbor Club (Petitioner) filed its Exceptions. None of the other Parties, Kenneth J. Derbeck, Bradley S. Laking and Thomas M. DeBruyne (Permittees) or the Department of Environmental Quality (Department), filed Exceptions. 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.

This Tribunal has considered the Proposal For Decision, the Petitioner's Exceptions, exhibits, pleadings and arguments. Proposed findings and conclusions not addressed in this Final Determination and Order were found to be unsupported by the record or unnecessary in making a final decision in this contested case.

The Petitioner raises numerous issues regarding what it perceives as deficiencies in the Proposal for Decision, and the findings of fact and conclusions of law contained therein. Each of the issues raised in the Petitioner's Exceptions is addressed individually.

First, the Petitioner notes that under the consolidation of these cases it was agreed, but never Ordered by this Tribunal, that three separate Proposals for Decision (PFD) would be issued on each permit. However, because of the commonality of the facts and issues presented in this case, separate proposals on the permits are unnecessary. Additionally, the Petitioner has not alleged it is prejudiced, nor does it appear it could be, by the format utilized.

Much of this argument addresses the Administrative Law Judge's failure to factor the property rights and interests of the Permittees in deciding whether they are entitled to the permits which were issued. However, Part 301 regulates activity at or below the ordinary high water mark of inland lakes and streams with definite banks, a bed, and visible evidence of a continued flow or continued occurrence of water. Part 301 does not regulate upland activities, but only proposed uses of the waters and the impacts upon the water course. MCL 324.30102. The PFD properly confined its examination of the activity to the Part 301 criteria.

The Petitioner's argument regarding real property issues is inconsistent with the fact that this Tribunal is one of limited authority, or "[t]he remedies within administrative agencies are pigeonholed." William C. Fulkerson, Michigan Environmental Deskbook, § 17.4 p 17-7 (1992). Jurisdiction to determine property rights and interests is vested in the circuit courts, as courts of general jurisdiction, in this State. Const 1963, art 6, § 1; MCL 600.601. Therefore, this Tribunal has no jurisdiction to determine the Petitioner's contention regarding the extent of the easement comprising Rialto Drive, whether the Petitioner has obtained title to the subject property through adverse possession, or any other relative property rights and interests of the Permittees. The Petitioner's argument that the permitted structures interfere with its rights to the canal, again, is an issue which can only be addressed in circuit court. Id. The assertion that the PFD is deficient due to its lack of conclusions of law in this regard cannot be sustained.

The Petitioner argues one of the findings in the PFD is inconsistent with this Tribunal's declination to determine property rights and interests. That finding stated:

...linear expansion is limited by property lines and by erosion control devices to the east and a flood control weir to the west.

This finding merely describes the physical characteristics of the area, and does not constitute a determination of property rights and interests. Therefore, the finding is not inconsistent with this Tribunal's jurisdiction.

The Petitioner contends the PFD's failure to address property issues also ignores the requirement in the minor project category that requires a proposed structure to be "appurtenant" to the applicants' upland. 1985 AACS, R 281.816(a)(iv). While this Rule addresses the location of a proposed dock or pier, it does not mandate a determination of property rights or interests.

The record in this matter shows the Permittees, their predecessors and other parties, including the Petitioner, have used the canal, with some hiatus, for approximately 50 years. The subject docks have been in place for a long period of time and the Permittees have shown a colorable right to such use. The activity at or below the ordinary high water mark was applied for and found to be permittable under the criteria of Part 301. The Department cannot be expected, nor does it have jurisdiction, to act in the place and stead of a court of competent jurisdiction. Therefore, both the Administrative Law Judge and the Department acted properly in reviewing the permit applications.

The Petitioner questions the findings in the PFD as to the criteria of Part 301 and 1985 AACS, R 281.816 1 (a)(i) through (iv) (Rule 6), contending they were either disregarded or erroneous. A review of the record discloses the criteria of both the statute and the Rule were addressed. As to the arguments regarding the findings themselves, nothing has been shown to demonstrate they are not supported by the record.

Additionally, the Petitioner identifies three considerations required by Rule 6(1)(a)(i) which it contends were erroneously addressed in the PFD:

1. The structure is not greater than other similar structures in the vicinity and on the watercourse.

This consideration entails an examination beyond the immediate area in question because the term "vicinity" is synonymous with "neighborhood". American Heritage College Dictionary, Third Edition (1993). Using this definition, the proper examination of the vicinity of the subject docks is all of the watercourses, or lagoons, in the Venice Subdivision.

The record demonstrates a long standing use of these watercourses similar to that of the Permittees. As to the dimensions of the subjects docks, the Laking permit allowed for the improvement of an existing dock, but did not materially increase its width. Both the DeBruyne and Derbeck permits allow docks which are narrower than the Laking facility. The dimensions of the docks which were permitted are consistent in nature and of similar size as those on the various watercourses located in Venice Subdivision, including those in the Petitioner's marina. Exhibit P-75. Based on the foregoing, the Petitioner has not shown that the ruling in this regard is not supported by a preponderance of the evidence.

2. The structure will not unreasonably interfere with navigability and boatability of the water involved.

The record indicates minimal interference to navigability and boatability in the LaPointe Drain due to the presence of the Permittee's docks. Because of the size of the water course, and the amount of use thereon, some larger boats would on occasion need to give way to oncoming boats, but this situation would also hold true in other areas of the drain. No incident of boat to boat collisions in the area of the docks was offered. In fact, testimony was offered that navigation was not impeded by the presence of the docks.

The record indicates incidents of propeller damage and contact with the drain's bed or dredging apparatus in the drain. However, such incidents are inherent in boating and the testimony indicates they did not occur in the immediate area of the subject docks. Finally, the testimony indicates the docks themselves pose no problem, but conceivably boats moored thereto may. In recognition of this situation, the permits expressly limit the size of the boats which can be moored at the docks, and directs "...no moored boat may obstruct navigation in Lapointe Drain." Department Exhibit 1-Laking permit.

The Petitioner provides from 393 to 400 slips in its marina, and accommodates an additional 100 boats in its "park and launch" facility. A municipal launch site adds approximately 500 boats annually in the area. The existence of an occasional inconvenience predominantly to large boats when factored into the nature of the watercourse and the amount of activity thereon falls well short of constituting an unreasonable interference to navigability and boatability.

3. The structure must be appurtenant to the applicant's land.

The use of the term "appurtenant", for the reasons previously stated, refers to the physical location of the docks, as opposed to requiring a property rights determination.

Public Trust The Petitioner argues the public trust analysis in the PFD ignores the existence of the public trust and impacts thereon. In Michigan only navigable waters are impressed with the public trust. Bott v. Natural Resources Commission, 415 Mich 45, 327 NW2d 838 (1982). Bott reaffirmed Michigan's long standing log floatation test to determine navigability and, in the process, rejected the recreation use test espoused.

The record in this case is devoid of any evidence that the LaPointe Drain meets the navigability test set forth in Bott. Thus, even though the watercourse is navigable in fact by recreational use, it is not necessarily legally navigable for the purpose of applying the public trust servitude to this watercourse. Regardless, the PFD indicates that the public trust, even if the LaPointe Drain was subject to it, cannot be substantially effected by the permitted activity since no adverse effects were found to exist. This analysis correctly states the law as applied to the facts in this case.

The Petitioner's reliance on the dissent in Pogorosh v. Fahner, 386 Mich 508 (1972), to support its position is unpersuasive. Pogorosh merely states that public trust waters are burdened with a servitude in favor of public navigation. As discussed above, public navigation is now, and will continue to be, facilitated through the LaPointe Drain even if the docks are permitted.

The only recreational consideration applicable is navigation, which is addressed above. The assertion that the Department avoided its responsibility in this regard by limiting its review to the docks is belied by the permit conditions prohibiting moored boats from impeding navigation.

Aesthetics was properly addressed in the PFD and its determinations in this regard are supported by the record. The argument that the docks could be moved to the upland is not prudent and, as such, can not constitute a feasible and prudent alternative to their permitted location.

The docks are placed on open pilings which do not impede water flow. Therefore, there can be no impact on the utilization of the drain for either drainage or irrigation for agricultural purposes. Even if the activity did impede these considerations, there is no evidence of such use on this record.

The PFD properly addresses the uses of the waters under these three considerations. There was no contention or evidence submitted regarding any impact to industry. Local government and commerce were properly found not to be materially effected by the permitted activities.

The purpose of this Final and Determination and Order is to decide if the Proposal for Decision is based on factual findings consistent with the record, and the proper application of Part 301, its administrative rules, and any other applicable statute or constitutional provision governing the issues involved.

After a thorough review of the evidence on this record, it is clear the activity allowed in the permits is consistent with the permitting criteria enunciated in Part 301. Therefore, the Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision, including the Findings of Fact and Conclusions of Law.

THEREFORE, IT IS ORDERED:

1. The Proposal For Decision dated January 26, 1999, is adopted by reference and incorporated into this Final Order.

2. The Permittee Kenneth J. Derbeck, Bradley S. Lacking and Thomas M. DeBruyne are entitled to the permits issued under File No. 94-10-0113, 94-10-0356 and 94-10-0273, respectively.

3. The Office of Administrative Hearings does not retain jurisdiction in this matter

Dated: April 23, 1999

Richard G. Lacasse, Chief
Administrative Law Judge, MDEQ
Office of Administrative Hearings

SUBJECT: Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Luna Pier Harbor Club on permits issued to Kenneth J. Derbeck, Bradley S. Laking and Thomas M. DeBruyne

File Nos. 94-10-0113, 94-10-0356, and
94-10-0273.

January 26, 1999
Richard A. Patterson
Administrative Law Judge

This contested case involves a third party petition from the Luna Pier Harbor Club regarding three separate after the fact permits issued by the Department of Environmental Quality to Kenneth J. Derbeck, Bradley S. Laking and Thomas M. DeBruyne. All of the permits allowed the three individuals to maintain docks on the LaPointe Drain, in the City of Luna Pier, Monroe County, Michigan. All of the permits were issued on March 13, 1995.

The aforementioned permits were issued under the provisions of Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act, and the administrative rules. MCL 324.30101 et seq.; MSA 13A.30101 et seq. The Luna Pier Harbor Club requested a hearing as an aggrieved party under Part 301. A hearing was held in this matter on September 22, 23, 24 and 25, 1998. Procedurally, the hearing was conducted under the provisions of the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560 (101) et seq.

The Petitioner has challenged the issuance of the permits in respect to its allegation that certain of the criteria of Part 301 have not been properly addressed or met and that the Permittees are not proper parties to receive a permit because they are not riparian owners. The issue, therefore, before this Tribunal is whether the Permittees are, in fact, entitled to their respective permits.

Luna Pier Harbor Club (Petitioner) is represented by Mr. James Y. Stewart, Esq. Testifying on behalf of the Petitioner during the hearing were, Mr. Don G. Bennett, City Administrator, City of Luna Pier; Mr. George Warnke, Registered Land Surveyor; Ms. Michelle Meinke, RN, Charter Boat Captain; and Mr. Michael Briskey, General Manager, Luna Pier Harbor Club.

Mr. Bradley S. Laking is represented by Byron P. Gallagher, Jr., Esq. Mr. Laking testified on his own behalf. Mr. Thomas M. Debruyne and Mr. Kenneth J. Derbeck appeared in propria persona and each testified on his own behalf. These three individuals will be identified as the "Permittee" below.

The professional staff of the Michigan Department of Environmental Quality (Department) is represented by Mr. Thomas P. Graf, Submerged Lands Unit, Land and Water Management Division (LWMD). Mr. Harold Frederick Harrington, Submerged Lands Unit Chief, LWMD, testified on behalf of the Department.

There were 107 exhibits entered into the record. A list and description of those exhibits is attached to this Proposal for Decision.

The LaPointe Drain was established and surveyed in 1914 (Exhibit 49), although the description in the exhibit does not correspond to its present placement. Since its origin, it has been dredged and widened and is now used as a channel for access to Lake Erie. The Permittees reside in the Venice Subdivision and the adjacent Assessor's Plat, which abut the LaPointe Drain on its north bank. The Petitioner is a large marina which has existed since 1986 under an operating permit issued by the then Michigan Department of Natural Resources. It is located to the west of the subject docks. It presently has 393 seasonal and transient slips and provides additional access for approximately 600 boats by a park and launch operation. The largest boats accommodated are 30 plus feet with a beam of 13 feet. In addition, a public ramp maintained by the City of Luna Pier is used by approximately 150 permitted boaters annually averaging 15 to 20 boats a day in season. The LaPointe Drain serves as these facilities sole access to Lake Erie so all boats from both facilities must pass the subject docks to gain ingress and egress to and from Lake Erie.

As stated, the Petitioner seeks review of after the fact permits issued to Permittees. Those permits allow each of the Permittees to maintain a dock adjacent to the north bank of the drain. Moving west to east, the Laking dock is 136 feet in length, the Debruyne dock is 68 feet in length and the Derbeck dock is 10 feet in length, with all three totalling 214 feet. All are parallel to the north bank and are 8 feet wide. Linear expansion is limited by property lines and by erosion control devices to the east and a flood control weir to the west.

Mr. Laking testified his dock was present when he bought the property in 1989. Although he has improved it, the dimensions have not been altered. Mr. Debruyne purchased his property in 1986 and almost immediately installed his dock. He also stated the Laking dock was present at that same time. Mr. Derbeck has lived in the area for 63 years and purchased the subject property in 1984. He remembers some form of dock being present in front of what is now his or Debruyne's property when he was a youth and testified that his father-in-law moored a large fishing boat there around the time of World War II.

The largest boat (Laking's) moored there has a 13 foot beam and, therefore, extends another 16 feet into the drain, allowing for a 3 foot mooring line, or within 5 feet of the center line of the drain as determined from the Venice Plat. The other boats are smaller and have narrower beams. All are depicted on Exhibit P-56 and extend to within 9 and 6 feet of the center line. None of the docks, boats and the length of the mooring lines extend to or beyond the center point of the drain.

As part of the issuance of the permits a restriction was placed whereby the Permittees are prevented from engaging in any activity which would impede navigation. The Luna Pier Harbor Club alleges the existence of the docks and boats moored encroach into the navigation channel to the extent of impeding navigation. In addition it alleges that Permittees are not riparian owners and, therefore, have no right to maintain any form of dock. This latter argument is a threshold question which must be addressed previous to determining the merits of the navigability issue under Part 301.

Part 301 does not expressly require that an applicant be a riparian in order to receive a permit. Section 30104(1) provides:

...before a project that is subject to this part is undertaken, a person shall file an application and receive a permit from the department. (Emphasis added)

Consistent with this language, Mr. Harrington testified the Department is only interested in whether the applicant has a right to use the property from which the proposed activity will originate. Therefore, no judgment is made as to ownership or relative interests in the property. The permit conveys no property rights and merely regulates the particular activity within the jurisdiction of the Department under Part 301.

The Department's position as described by Mr. Harrington is consistent with the language of Part 301, particularly §30110(4) which provides:

This section does not limit the right of a riparian owner to institute proceedings in any circuit court of the state against any person when necessary to protect his or her rights.

Consistent with this provision, Mr. Harrington stated he did not review the applicants as riparian owners, but as owners of property on an artificial body of water.

The testimony is inconclusive as to whether the LaPointe Drain originated as a natural stream or as an artificially created drain. Both Mr. Harrington and Mr. Michael Briskey speculated that it was initially an agricultural drain. Mr. Harrington testified that such were common in Monroe County, as well as Saginaw Bay and Lake St. Clair, and were created to drain wetlands to make them usable. Mr. Briskey concurs with this assessment based on his research of the records and conversations with the Drain Commissioner, although that official is not, to his understanding, actively involved in its maintenance.

Mr. Laking testified that while boating west from the improved end of the drain he found a series of creeks and estuaries extending some 200 to 300 yards. From this he surmises the drain was a natural extension of those to Lake Erie. Mr. George Warnke testified that the majority of drains in Monroe County are constructed and that if the drain was natural it would have been very small. What is clear is that due to the widening and dredging of the drain, a channel was created which is currently navigable in fact.

While the date(s) the drain was initially dredged is not indicated on the record, it is depicted as being approximately 25 feet wide by scale on Exhibit P-1 (Plat of Venice Subdivision) as of 1920. Exhibit P-64 indicates by scale a variable width of approximately 50 feet in 1984. It was later dredged and widened in 1995 pursuant to a permit issued to the Petitioner which allowed dredging up to 60 feet of width to a depth of 560 feet International Great Lakes Datum. Exhibit P-98. It presently is 40 feet wide from the rub rail of Mr. Laking's boat to the edge of boatable water on the opposite shore according to Mr. Briskey. A permit was granted to the City of Luna Pier to dredge to a width of 100 feet, but that project never occurred and the permit has expired. Exhibit P-50. Mr. Briskey estimated that dredging occurs, on average, twice a year.

As stated in Thompson v. Enz, 379 Mich 667; 154 NW2d 473 (1967) at page 679:

"Artificial water courses are waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes,and the like. (4 Restatement of Torts sec. 841, subd. h, p 321)

The LaPointe Drain as it presently exists is clearly attributable to human intervention. Therefore, I find, as a Matter of Fact, the LaPointe Drain is an artificial water course.

The Thompson Court went on to hold that "...land abutting on an artificial water course has no riparian rights." Id. at 679. Thus, the testimony and argument as to the existence or extent of the riparian rights of the Permittees is irrelevant to this proceeding as neither they, nor the Petitioner, as a matter of law have riparian rights. The proper analysis under Part 301 is, in part, to what extent does the activity adversely affect the public trust and riparian rights. MCL 324.30106. Whether the Permittees have riparian rights does not matter under this analysis, rather it is their utilization of the drain that must be analyzed under Part 301.

Section 30105(6) of Part 301 provides in part:

The department, by rule promulgated pursuant to section 30110(1) may establish minor project categories of activities and projects that are similar in nature and have minimal adverse impact.

The Department has, by administrative rule, established minor project categories. 1985 AACS, R 281.816. As that category is applicable to these projects, it provides:

(1) Upon receipt of an application for a permit for any of the following minor projects, the department may act upon the application as provided in subsection (6) of section 6 of the act:

(a) Noncommercial piers, docks, and boat hoists which meet all of the following design criteria.

(i) The length or size of the proposed structure is not greater than the length or size of similar structures in the vicinity and on the watercourse and will not unreasonably interfere with the navigability or boatability of the water involved.

(ii) Free littoral flow of water and drift material is provided for.

(iii) Clean, nonpolluting materials will be used for the construction.

(iv) The structure is a single pier or dock appurtenant to the applicant's upland or is an added boat hoist, minor pier, or extension to the existing boat hoist, pier, or dock.

For the reasons discussed in detail below, it is evident that all of the criteria of subsections (i) through (iv) have been met, and I so find as a Matter of Fact.

As previously indicated, neither party contests the fact that this project comes within a minor project category as defined by the Rule. By definition, the project allowed under the contested permits have minimal adverse environmental impact, but issuance is not automatic merely because the activity falls under the criteria. Rather, a minor project category proposal is merely exempt from the general notice provisions of Part 301 and a public hearing is not required, but all other provisions of this part shall be applicable to a minor project. MCL 324.30105(6).

Section 6 of Part 310 (MCL 324.30106, MSA 13A 30106) provides:

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights.

The record is replete with evidence of significant boat traffic utilizing the LaPointe Drain for access to Lake Erie. This may raise an issue as to its navigability in a legal sense, and consequently the issue of the drain being impressed with the public trust. However, a determination on this point is unnecessary under the holding in the seminal case involving public trust, Illinois Central Railroad Company v. Illinois, 146 US 387, 19 S Ct 110 (1892), adopted in Michigan in Collins v. Gerhardt, 237 Mich 38; 211 NW 115 (1926). Both of those cases hold that there must be a substantial impact upon the public trust to deny a permit on that basis. Pursuant to the Findings of Fact made below under the analysis pertaining to the specific criteria of the second part of §6, wherein it is determined the activity poses no adverse impact, it necessarily follows that the public trust cannot be materially effected, even if it exists.

It has been previously determined the LaPointe Drain is an artificial body of water. Therefore, under the holding in Thompson, it is bereft of riparian rights and no impact upon the same can be found. In that neither the public trust nor riparian rights can be materially affected, the analysis must then turn to §30106, which requires:

In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon the waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state.

The only recreational activity that would be potentially impacted by the activity allowed in the permits is navigation. The standard articulated under 1985 AACS, R 281.816 requires a finding that the activity will not "unreasonably interfere with the navigability or boatability of the water involved."

Mr. Harrington testified that under the limitations in the permit prohibiting any obstruction to navigation, this concern is alleviated. Without being specific, he further testified that if a problem arose, they have a mechanism to deal with that.

Mr. Bennett, the City of Luna Pier Administrator, and also a boater who utilizes the LaPointe Drain, testified he had never observed an accident in the drain and the Luna Pier Police Department has not received any reports of such. He testified that in using his 25 foot boat he has never experienced problems with navigation subsequent to the latest widening, but had previously when the drain was 25 feet narrower. He specifically disclaimed ever having a problem near the Laking dock. Most of the problems, according to him, were at the east end of the drain, or the entrance to Lake Erie. He admitted, from his perspective, the docks, in and of themselves, had no impact and there were worse areas where there were no docks.

Mr. Laking, Mr. Derbeck and Mr. DeBruyne all testified that they had never observed any boat to boat accidents in the drain. Mr. Laking did testify to witnessing a boat becoming caught on a dredge cable near the Lake Erie exit and that Mr. DeBruyne helped in its extraction. He further testified that boats can see each other for a considerable distance in the drain.

Ms. Michelle Meinke is a captain of a commercial tug and has annually traversed the LaPointe Drain 40 to 75 times for 6 years. She testified she has encountered limitations in navigability upon encountering another boat coming in the opposite direction when the tug has a boat in tow. She noted that because most of her boats draw 2 1/2 feet of water she must stay close to the middle of the channel. In such a situation she radios a security code, but her experience is that most boaters do not pay attention. In order to traverse the drain she must depend on other boats giving way. She testified the subject docks are not a problem, but when boats are moored there, they prevent two boats passing abreast of each other. She noted windy conditions, especially a trailing sea, create control and steerage problems in the drain. Contrary to Mr. Bennett, she has experienced more difficulties in the area around the docks than at the entrance of Lake Erie, but admits never observing an accident in front of the docks.

Mr. Michael Briskey, General Manager of the Petitioner Luna Pier Harbor Club, described the drain as extremely busy during the boating season, especially on weekends. He personally has been forced to give way many times and his customers have chipped props on the shore opposite the docks when giving way to oncoming traffic. He compared traversing that area to going through a construction zone. He stated that staging boats in the drain to facilitate passage can be problematic in fast changing weather, and a commercial fisherman who occasionally uses the drain must break up his train of barges to get through.

The above testimony as a whole can be fairly summarized as indicating occasional perceived problems navigating through the drain, some of which occur due to weather conditions. While these may be present, I find, as a Matter of Fact, such conditions do not equate to the level of an unreasonable interference with navigation or boatability of the water involved by the subject docks. The record indicates that a large number of boats utilize the drain on a daily basis during the season with nothing untoward occurring other than an occasional inconvenience.

Mr. Harrington offered unrebutted testimony that the open pile docks have no impact on fish and wildlife. Therefore, I find, as a Matter of Fact, there is no impact from the subject docks on this resource. Furthermore, based of this same testimony, I find, as a Matter of Fact, the littoral flow and drift material will be unaffected by open pile construction which, by its nature, facilitates flow through.

Aesthetics are necessarily subjective and judgmental. Mr. Harrington testified the docks are typical of residential installations and he perceived no aesthetic impacts. There was no other testimony in this regard. I find, as a Matter of Fact, based on this record that there is no impact on aesthetics from the subject docks. Based on the testimony that the docks are typical of residential installations and that there are numerous docks in the general area and that the docks are not a substantial deviation from those that preexisted, I find further, as a Matter of Fact, that the length and size of the structures are not greater than the length or size of similar structures in the vicinity and on the watercourse.

There is no contention on this record the subject docks pose an impact, adverse or otherwise, on agriculture.

There was no testimony regarding any impacts on local government. Mr. Harrington testified that if large vessels were moored at the docks, navigation and, therefore, commerce could be effected. However, he testified the limitations included in the permits would alleviate that concern. There is no contention that industry in general would be effected. Based on the foregoing, I find, as a Matter of Fact, the subject docks pose no effect on local government, industry or commerce.

Lastly, §30106 prohibits the Department from issuing a permit "...if the proposed project or structure will unlawfully impair of destroy any of the waters of other natural resources of the state." To implement this portion of §30106, the Department promulgated 1985 AACS, R 281.814 (Rule 4), which states:

In each application for a permit, all existing and potential adverse environmental effects shall be determined and a permit shall not be issued unless the department determines all of the following:

(a) That the adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible.

(b) That the resources affected is not a rare resource.

(c) That the public interest in the proposed development is greater that the public interest in the unavoidable degradation of the resource.

(d) That no feasible and prudent alternative is available.

Subsection (a) of Rule 4 requires that adverse effects of the proposed project to the public trust be minimal and mitigated to the extent possible. I have previously found there can be no significant adverse effects to the public trust. Similarly, any adverse effects to the environment are minimal.

Subsection (b) requires that the resource affected is not a rare resource. Mr. Harrington and Mr. Warnke testified such drains or canals are common in Monroe County and other areas of the state. Therefore, I find, as a Matter of Fact, the LaPointe Drain is not a rare resource.

Subsection (c) requires the public interest in the proposed development be greater that the unavoidable degradation of the resource. The public interest is best served in this regard by allowing the continued existence of the docks and boats moored within the limitations placed thereon in the permits.

Subsection (d) requires that no feasible and prudent alternative is available to the proposal. Mr. Harrington testified that upland basins are rarely utilized by private individuals. In this case that alternative is not only imprudent but is not feasible due to the existence of solid structures landward of the docks which prevent excavation. The suggestion of the Petitioner that the Permittees utilize its marina is feasible, but not a prudent alternative to the reasonable use of ones own property. I find, therefore, as a Matter of Fact, that there are no feasible and prudent alternatives to the docks as they exist.

Based on the foregoing, I find, as a Matter of Fact, the criteria of Rule 4 is met by the permits as issued.

The Petitioner argues that Mr. Laking should be held to the standards for a marina operating permit pursuant to 1985 AACS, R 281.819 (Rule 9), on the basis that he has occasionally allowed others to use his dock. Under Part 301 a "Marina" is defined as:

[A] facility that is owned of operated by a person, extends into or over an inland lake or stream, and offers service to the public or members of the marina for docking, loading, or other servicing of recreational watercraft. MCL 30101(f).

The testimony indicates Mr. Laking, on occasion, has allowed others to use his dock in emergencies or when access to the party's own facility is blocked by a flood control weir. This activity includes allowing Mr. Briskey's wife to dock when the boat she was operating broke down. To argue that occasionally allowing use as a good samaritan should relegate the owner to the strictures of a marina operating permit is disingenuous at best, and malevolent at worst. Mr. Harrington testified that he considers the consistent presence of three to four boats as the minimum for a structure to be considered as a marina. The permits issued limit the number of boats at each dock to two. Therefore, based on the facts on this record, the subject docks are clearly not regulated under Rule 9.

1. The permitted activities are regulated under Part 301 of the NREPA, permits are necessary to carry out the activity proposed in each application for a permit and the Department of Environmental Quality has jurisdiction over the activity.

2. The LaPointe Drain is an inland stream subject to regulation under Part 301 of the NREPA pursuant to the definition contained in §30101(e).

3. The permitted activities affect the bottomlands of the LaPointe Drain because the activities will occur below the ordinary high water mark.

4. The LaPointe Drain is an artificial water course and the land adjacent thereto carries no riparian rights.

5. Pursuant to the criteria of §30106, the LaPointe Drain is not impressed with the public trust, nor do the property owners on its shore possess the rights of riparians. Therefore, the permitted activities can not adversely affect the public trust or riparian rights.

6. The permitted activities will not have an adverse effect on the environment and have been mitigated to the extent possible as required in Rule 4(a).

7. The LaPointe Drain is not a rare resource under Rule 4(b).

8. The public interest in the permitted activities is greater than the public interest in the unavoidable degradation of the resource as set forth in Rule 4(c).

9. There are no feasible and prudent alternatives to the permitted activities as contained in Rule 4(d).

10. The permitted activities will not unlawfully impair waters of the state as defined in Rule 4.

Based on the foregoing Findings of Fact and Conclusions of Law, it is proposed that a Final Order be issued which determines Kenneth J. Derbeck, Bradley S. Laking and Thomas M. DeBruyne are entitled to the permits which they were issued under File Nos. 94-10-113, 94-10-356, and 94-10-273.

Date: January 26, 1999
Richard A. Patterson
Administrative Law Judge

Petition of Luna Pier Harbor Club on the permits issued to Thomas M. DeBruyne, Kenneth J. Derbeck and Bradley S. Laking

File No. 94-10-0273, 94-10-0113 and 94-10-0356

Department's Exhibits - all photocopied

1 State of Michigan, Department of Natural Resources, Permit No. 94-10-0356 issued to Bradley S. Laking on March 13, 1995 and the entire file photocopied.

2. State of Michigan, Department of Natural Resources, Permit No. 94-10-0273 issued to Thomas M. DeBruyne on March 13, 1995 and the entire file photocopied.

3. State of Michigan, Department of Natural Resources, Permit No. 94-10-0113 issued to Keneth J. Derbeck on March 13, 1995 and the entire file photocopied.

4. Design Handbook for Recreational Boating and Fishing Facilities, States Organization for Boating Access (Cover and Page 69 only).

Laking's Exhibits

1 Photocopy of photograph, 8½" x 11", labeled Grand Canal A;

Photocopy of photograph, 8½" x 11", labeled LaPointe B;

Photocopy of photograph, 8½" x 11", labeled Grand Canal LaPointe around corner, C; Photocopy of photograph, 8½" x 11", labeled LaPointe Drain actually drain canal on cross, D; Photocopy of photograph, 8½" x 11", labeled Grand Canal, E and Photocopy of photograph, 8½" x 11", labeled LaPointe ... F.

2-5 Color photographs, 4" x 6".

Petitioner's Exhibits

1 A True Copy of Record, Register of Deeds, "Venice" a sub-division of Part of NW ¼, Sec. 11 T85-R8E, Erie Twp., Monroe Co. Michigan, dated November 12, 1920.

2 Assessors Plat No. 5, being a part of the N.E. ¼ of the S.W. ¼ of Sec. 11, T.85, R8E, Erie Twp., Monroe Co., Michigan, dated August 8, 1928.

3 Department of Army Permit, Permittee: Thomas DeBruyne, Permit No. 93-001-021-0, signed June 19, 1994.

Petitioner's Exhibits - Continued

4 Detroit District, U.S. Army Corps of Engineers, File Number 93-001-021-0, Department of the Army Permit Evaluation, Thomas DeBruyne, dated June 15, 1994.

5 Letter from Thomas DeBruyne in response to letter dated May 2, 1994.

6 Telecommunications log, dated August 31, 1993, regarding Thomas DeBruyne Project.

7 Inspections, Evaluation and Compliance log, dated February 9, 1994, regarding Thomas DeBruyne Project.

8 Letter from Robert Tucker, Chief, Compliance and Enforcement Section, Regulatory Functions Branch to Thomas DeBruyne dated December 17, 1993.

9 Letter from Robert Tucker, Chief, Compliance and Enforcement Section, Regulatory Functions Branch to Thomas DeBruyne dated August 23, 1993.

10 Letter from Robert D. Deroche, Project Manager, Regulatory Functions Branch to Thomas DeBruyne dated January 20, 1994.

11 Department of the Army Permit. Permittee: Brad Laking; Permit No. 93-001-020-0; Issuing Office: U.S. Army Engineer District, Detroit signed June 23, 1994.

12 Statement of Findings on an Existing Dock in LaPointe Drain off Lake Erie at Luna Pier, Michigan, attached report dated June 15, 1994 concerning an application by Bradley Laking.

13 Telecommunications Log dated January 11, 1994, Project: T-Patch Marina, Inc.

14 Conversation Record dated July 12, 1993 with Brad Laking and Bob Tucker.

15 Memorandum for File, dated March 10, 1994, Subject: Brad Laking.

16 Memorandum for Chief, Processing Section B., Attn.: Bob Deroche, dated March 10, 1994, Subject: Transfer of File no. 93-001-020-0, Laking, Brad.

17 Boundary Line Survey of a Part of lots 125 and 128, "Venice", according to the recorded plat thereof, City of Luna Pier, Erie Twp., Monroe Co., Michigan, Liber 698 page 356 and page 357.

18 Department of Army Permit, Permittee: Ken Derbeck, Permit No. 93-001-023-0; Issuing Office: U.S. Army Engineer District, Detroit, dated June 24, 1994.

19 Memorandum for Chief, Regulatory Functions Branch, dated June 14, 1994, Subject: Statement of Findings of an Existing Dock in LaPointe Drain off Lake Erie at Luna Pier, Michigan by Ken Derbeck.

20 Joint Public Notice, dated April 4, 1994, U.S. Army Corps of Engineers, Detroit District on the Applicants: Ken Derbeck, tom DeBruyne and Brad Laking.

21 Letter from Robert D. Deroche, Project Manager, Regulatory Functions Branch to Ken Derbeck dated January 20, 1994.

22 Letter dated September 21st, to the City of Luna Pier from William J. Braunlich, Jr., City Attorney regarding Proposed Dike and Rights of Lakefront Landowners.

23 Department of Natural Resources (DNR), Interoffice Communication, January 25, 1983 to the Files from John C. Arnsman, Meeting on Luna Pier Project.

24 Photocopy of American Engineering Co., Description of Project.

25 DNR, Interoffice Communication, dated September 22, 1981 to the Files from H.C. Nielsen, Meeting with Luna Pier Officials.

26 Letter dated July 8, 1983, to the State of Michigan (SOM), DNR, John C. Arnsman, Submerged Lands Management Unit, from William J. Braunlich, Jr., City Attorney regarding City of Luna Pier.

27 Letter dated October 22, 1981 from John C. Arnsman, Submerged Lands Management Unit, Land Resource Program Division to Ms. Nancy Striggow.

28 Letter dated August 14, 1984 from Michael J. Bailey, P.E., NLDA, to Jerome M. Mahes, Department of the Army, Corp of Engineers.

29 Letter dated August 6, 1997 from William w. Willis, P.E., chief, Construction-Operations Division, Department of the Army to Don Bennett, Administrator, City of Luna Pier.

30 Great Lakes Water Level Facts, U.S. Army Corps of Engineers, Detroit District, cover and pages 13 and 14 only.

31 Letter from Gary R. Mannesto, Chief General Regulatory Branch Construction-Operations Division, Department of the Army.

32 Minutes of meeting February 26, 1998 from the City of Luna Pier, Rose M. Laderach, Clerk.

33 Photocopy of Register of Deeds document, Monroe Co., Michigan, Harvey Whitman and Ida A. Whitman dated November 25, 1944.

34 Warranty Deed dated August 1, 1974, Liber 671 page 957.

35 Contract dated May 30, 1975.

36 Photocopy dated December 2, 1975 from the Register of Deeds, Monroe Co., Michigan.

37 Deed, Liber 854, page 152, dated December 15, 1981.

38 Quit claim Deed, Liber 869 page 56, dated october 18, 1982.

39 Warranty Deed, Liber 982 page 936, dated October 6, 1986.

40 This Indenture dated August 25, 1919.

41 This Indenture dated July 3, 1942.

42 Warranty Deed, Liber 913 page 304, dated August 26, 1984.

43 Warranty Deed, Liber 1057 page 0064, dated October 19, 1988.

44 Warranty Deed, Liber 1089 page 0439, dated August 15, 1989.

45 Recorded in Deeds, Liber 794 page 356, dated April 9, 1979.

46 Quit Claim Deed, Liber 1100 page 0847 dated November 28, 1989.

47 Quit Claim Deed, Liber 1148 page 0012, December 29, 1990.

48 Affidavit of Certification, Qualified Representative of the Monroe County Drain Commission and Minutes of Survey of S. S. LaPointe Drain, Erie.

49 Affidavit of Certification, Qualified Representative of the Monroe County Drain Commission, true and exact copies of records regarding the establishment of the SS Lapointe Drain.

50 SOM, DNR Permit issued to the City of Luna Pier, Permit No. 83-14-87G dated July 20, 1983.

51 City of Luna Pier, Michigan, Ordinance No. 64 dated March 6, 1972.

52 Letter dated August 24, 1994 to John Arnsman, DNR from Gary A. Dawson, PhD, Staff Environmental Planner, Consumers Power, RE: Comments on Draft Permit No. 90-14-0062 to Luna Pier Harbor Club, LaPointe Drain Dredging.

53 License Agreement between Consumer Power Company and Lot M Acquisitions, Inc. a Michigan Corporation doing business as Luna Pier Harbour Club dated December 2, 1994.

54 Copy of Newspaper Article, Evening News, Monroe, Michigan, Monday, February 20, 1995, entitled, "Luna Pier drain widening to improve access for boats".

55 Survey No. 94-0154 for Luna Pier Harbor Club, SKETCH: La Point Drain, Part of the West ½ of the Southeast ¼ of Section 11, Town 8 South, Range 8 East, City of Luna Pier, Monroe County, Michigan. Showing Surveys, plats as-built of waters edge after dredging and docks and boats along wall. Dated: 07/15/96.

56 Drawing dated July 15, 1996, Detail: Lapointe Drain.

57 Survey No. 94-0154 for Luna Pier Harbor Club, SKETCH: La Point Drain with digital ortho photo overlay, Part of the West ½ of the Southeast ¼ of Section 11, Town 8 South, Range 8 East, City of Luna Pier, Monroe County, Michigan. Existing conditions on 07/15/96.

58 Lake Erie Fish and Fishery, Lakewide Management Plan.

59 License, Monroe #66, between Consumers Power Company and City of Luna Pier dated October 29, 1990.

60 A Boating Guide to Western Lake Erie, Page 67, Luna Pier, Michigan, USA.

61 Inland, Steering and Sailing Rules, Rule 9, Narrow Channels, Page 21.

62 Joint Public Notice dated March 24, 1998, US Army Corps of Engineers.

63 Bolles Harbor Fact Sheet, "Frequently Asked Questions". Bolles Harbor, Land Areas Offered.

64 Lapointe Drain, Sketch of Shorewall Alignment dated August 14, 1984.

65 Application for Permit, City of Luna Pier, DNR File No. 89-14-212, signed February 21, 1989.

66 January 1 - December 31, 1990, Parking and Launching Permits.

67 Letter to Albert L. Briskey from Gary R. Mannesto, Dept. of the Army.

68 Design Handbook for Recreational Boating and Fishing Facilities, States Organization for Boating Access, pages 69, 84 and 85.

69 Marinas, Recommendations for Design, Construction and Management, pages 23 and 24.

70 8½" x 14" Drawing of Earth Berms, Conc Wall, Mooring Lines, Boats, Wood Deck and Rialto Drive.

71 Resolution by the Board of County Road Commissioners to Abandon a Part of a Subdivision Street, Monroe County Road Commission, July 24, 1953, Liber 413, page 597.

72 Resolution by the Board of County Road Commissioners to Abandon a Portion of Certain Streets, Monroe County Road Commission, May 19, 1955, Liber 435, page 490.

73 Zoning Map, Zoning Districts, Luna Pier.

74 City of Luna Pier, Michigan, Cross Section Locations, LaPointe Drain Widening Project.

75 Colored Photograph, 11" x 14" Aerial View.

76 & Colored Photographs, 5" x 7".

77

78- Colored Photographs, 4" x 6".

97

98 SOM, DNR, Permit, Luna Pier Harbour Club, Permit No. 90-14-0062, dated January 20, 1995.