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

Petition of Lilian P. Mattson, Lilian P. Mattson Trust and Steve R. Mattson, Ph.D., on the permit issued to Larry Knowles

File No. 98-06-0210
___________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated January 19, 2000. Upon issuance of the Proposal for Decision the Office of Administrative Hearings gave the Parties until February 10, 2000, to file written Exceptions to the Proposal for Decision. The Petitioners filed their Exceptions on February 9, 2000, while the Land and Water Management Division (LWMD) did not file Exceptions. Neither Party requested Oral Argument before this Tribunal.

The matter is now before the Director of the Department of Environmental Quality for a final agency decision pursuant to Executive Order 1995-18. In rendering the decision in this case consideration has been given to the Proposal For Decision, the written Exceptions, exhibits, pleadings and arguments.

Mr. Larry Knowles, who is not a Party to these proceedings, submitted an application to place fill in a regulated wetland on the subject parcel. Subsequent to the denial of the application, Mr. Knowles and LWMD reached agreement on a modified permit for the construction on pilings of a residence, garage, driveway and septic system. In addition, the modified permit required the footprint of the residence and associated activities to be located on the parcel in such a manner so as to minimize any impact to the wetland. It is the modified permit which the Petitioners challenge in this contested case.

The Petitioners raise five Exceptions to the Proposal for Decision, four of which pertain to the finding that the permitted activity constitutes a feasible and prudent alternative to that proposed in the application. Their contentions, set forth under a number of theories, essentially assert the existence of an off-site alternative location for the permitted activity precludes the issuance of a permit under Part 303.

In order to address the Petitioners' Exceptions it is necessary to examine the utilization and implications of the feasible and prudent alternative analysis contained in Part 303. The test first appears in § 30311(2)(b) as one of the nine criteria to be considered in determining if a proposed activity is in the public interest. A finding that the proposed activity is not in the public interest precludes issuance of a permit under § 30311(2). Section 30311(2)(b) requires an examination of the availability of feasible and prudent alternative methods and locations which would accomplish the expected benefits of the proposed activity. The record in this case supports the finding that the requirements in the modified permit, i.e. the construction on pilings and configuration of the activity on the parcel, meet the "method" alternative. Thus, the question becomes whether the existence of a feasible and prudent alternative "location," in the nature of a different site altogether, dictates a finding that the proposed activity is not in the public interest. The Petitioners devote a great deal of their case to arguing in support of this proposition. However, they do not directly challenge the Proposal for Decision's finding and conclusion under § 30311(2) that the permitted activity is in the public interest.

The "location" alternative in § 30311(2)(b) is, as discussed above, a component of one of the nine general criteria the Legislature deemed appropriate in determining the public interest in activities proposed to occur in a regulated wetland. It is no more, or less, significant than the other criteria. However, it is logical to utilize the "location" test in harmony with the "method" test. Thus, once all available methods are utilized to minimize the reasonably foreseeable determents of the proposed activity, the significance of the availability of alternative locations is diminished. This is especially true given the basic legal principle that "...land is thought to be a unique commodity under our legal system." American Electrical Steel Co. v Scarpace, 399 Mich 306, 309; 249 NW2d 70 (1976). Further, as noted in the Proposal for Decision, utilizing the Petitioners' interpretation of alternatives would result in the Department deciding where people could live, something the statute clearly does not contemplate.

In addition to interpreting § 30311(2)(b) beyond that which the Legislature intended, the Petitioners' argument on the availability of off-site alternatives disregards the alternative test under § 30311(4)(b). Section 30311(4)(b) expressly precludes the issuance of a permit if feasible and prudent alternatives exist. This latter alternative test is logically grounded in the proposed use of the property, in that it is utilized to determine whether an unacceptable disruption of the aquatic resources inherent in a wetland can either be avoided or minimized. This test must be contrasted with the benefits versus detriment balancing required under § 30311(2)(b) in order to determine the extent of the public interest in the proposed activity. The import of this distinction is that § 30311(4)(b) requires an examination of the alternatives available on the parcel. Such alternatives include using existing upland, or as in this case, building on pilings in an area of the parcel where the wetland would be impacted the least. Therefore, under § 30311(4)(b) a feasible and prudent alternative does not exist for the activity allowed in the modified permit. Given this, the Petitioners' Exceptions in this regard are rejected.

The final argument of the Petitioners is that the activity in the challenged permit is not wetland dependent. The Proposal for Decision concluded that the language of § 30311(4)(a), "...primarily dependent on being located in the wetland," by its terms limits the analysis to whether the circumstances on the site render the proposed activity as being "wetland dependent." The Petitioners do not cite any authority to support their argument, offering only that this conclusion is contrary to law. Given that the Proposal for Decision applies the Department's longstanding interpretation of § 30311(4)(a), the conclusion will not be rejected. The second portion of this Exception pertaining to the LWMD's alleged failure to raise the wetland dependency issue ignores the de novo nature of contested case hearings. Thus, even if LWMD had not considered wetland dependency, this contention is irrelevant because of this Tribunal's consideration of the issue. Therefore, the Petitioners' Exception regarding wetland dependency is rejected.

DETERMINATION AND ORDER

The Director of the Department of Environmental Quality ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision

dated January 19, 2000, including the Findings of Fact and Conclusions of Law. Based upon those Findings of Fact and Conclusions of Law, it is DETERMINED Larry Knowles is entitled under Part 303 to the modified permit issued on January 5, 1999.

NOW, THEREFORE, IT IS ORDERED:

1. The Proposal for Decision of January 19, 2000, is ADOPTED and INCORPORATED by reference into this Final Order.

2. The application for a permit submitted by Larry Knowles under File No. 98-06-0217 is GRANTED consistent with all of the terms and conditions contained in the modified permit issued on January 5, 1999.

3. This Final Determination and Order constitutes the final agency decision of the Department of Environmental Quality in this matter.

Dated: March 14, 2000

Russell J. Harding, Director
Department of Environmental Quality

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

Petition of Lilian P. Mattson, Lilian P. Mattson Trust and Steven R. Mattson, Ph.D., on the permit issued to Larry Knowles

File No. 98-06-0210

PROPOSAL FOR DECISION

Dated: January 19, 2000
Richard A. Patterson
Administrative Law Judge

This contested case involves a third party challenge to a modified permit issued to Mr. Larry Knowles. The permit at issue allows the construction of a residence, garage, driveway, and septic system in a wetland. All of the structures will be built on pilings. The modified permit was issued pursuant to the provisions of Part 303 of Natural Resources and Environmental Protection Act (NREPA). The contested case hearing was held on September 2, 1999.

JURISDICTION

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

PROPERTY RIGHTS PRESERVATION ACT

Pursuant to the Property Rights Preservation Act, 1996 PA 101, MCL 24.421, et seq. MSA 24.421, et seq., in formulating this Proposal for Decision the undersigned has reviewed the Takings Assessment Guidelines and considered the issue of whether this government action constitutes a constitutional taking of property.

PARTIES

Lilian P. Mattson resides in a home owned by the Lilian P. Mattson Trust on property adjacent and immediately north of the parcel in question. Mrs. Mattson and her son Steven R. Mattson, Ph.D., who has power of attorney for his mother, and the Lilian P. Mattson Trust are the "Petitioners" in this matter. The Petitioners are represented by Christopher M. Bzdok, Esquire.

The professional staff of the Land and Water Management Division, Department of Environmental Quality (Department) is charged with the day-to-day implementation of Part 303. The Department is represented by Mr. Fred Gottschalk, Contested Case Supervisor. Mr. Larry Knowles (Permittee) is the recipient of the subject permit and did not participate in the hearing.

The Petitioner presented one witness: Christopher P. Grobbel, Ph.D. The Department presented two staff members as witnesses: Ms. Sy Vongphasouk, Land and Water Management Analyst, Cadillac District Office; and Mr. Steve Spencer, District Supervisor, Cadillac District Office. The Parties introduced 19 stipulated joint exhibits. A list and description of these exhibits is included at the end of this Proposal for Decision.

FINDINGS OF FACT

LOCATION AND NATURE OF THE SUBJECT PROPERTY

The subject site, consists of Lots 7 and 8 of part of Government Lot 4 and is located in Leelanau Township, Leelanau County, Michigan. Exhibit 1. The parcel is in the shape of a rhombus fronting on Northport Bay. The dimensions of the parcel are 200 feet in width at both the rear and the beach, 211.20 feet deep at the north and 220.70 deep at the south. Northshore Drive transects the parcel between the proposed building site and the shore. Exhibit 4 - Certificate of Survey.

The application for a permit proposed the construction of a 25 x 75 foot residence, 40 x 30 foot garage, a driveway 100 feet in length with a 30 x 50 foot turnaround and a holding tank septic system located between the residence and Northshore Drive. Exhibit 1. The modified permit, issued on January 5, 1999, allows the construction on pilings of a 45 x 50 foot residence, a 35 x 35 foot garage, a driveway of 30 feet in length and the holding tanks to the west of Northshore Drive. Exhibit 10. The footprint of the activity is closer to Northshore Drive than the original proposal, and is located in such a manner as to accommodate required setbacks as outlined on an attachment to the modified permit. Id.

PROCEDURAL HISTORY

The Permittee initially applied on August 10, 1998, for a permit to place fill in the wetland on the property to accommodate the building project. The application was placed on public notice September 28, 1998. Pertinent to this hearing, written comments objecting to the application were received from Christopher P. Grobbel, Ph.D., and Steven R. Mattson, Ph.D. on behalf of Lilian P. Mattson. Exhibits 6 and 9.

Ms. Sy Vongphasouk performed a site visit on August 25, 1998, and prepared a Project Review Report. Exhibit 4. Based on the above comments, her site visit, and comments from the Department of Natural Resources, Fisheries Division, she denied the permit application by letter dated November 23, 1998. Exhibit 7. As part of the informal review process, the Permittee submitted revised plans, most notably the proposal to build on pilings, and the modified permit was issued

STIPULATIONS ON THE RECORD

At the commencement of the contested case hearing the parties stipulated to the exhibits entered on the record as well as to the qualifications of Dr. Grobbel, Ms. Vongphasouk, and Mr. Spencer outlined below.

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

Christopher Grobbel, Ph.D., is an assistant professor of environmental studies at Michigan State University, extension agent for the Traverse City area, and an environmental consultant. He has been previously qualified as an expert in hydrology and was formerly employed by the Environmental Response Division of the then Department of Natural Resources as a hydrologist. Dr. Grobbel was contacted by Dr. Mattson, and after meeting with him, reviewing numerous materials, and performing a site visit in the company of a botanist, wrote a letter to the Cadillac District Office on October 15, 1998 expressing his concerns. Exhibit 6. A similar letter sent by Dr. Mattson, who is a geologist, on the same date expresses a concern the proposed activity would reduce absorption and interrupt water flow, which would divert water to adjacent properties. Exhibit 9.

Exhibits 6 and 9 set forth various concerns and adverse impacts, predicated on the fill activity set forth in the application. As they had no notice of the issuance of the modified permit, neither Dr. Grobbel nor Dr. Mattson were able to have any input. However, Dr. Grobbel testified that subsequent to his review of the modified permit, along with his analysis in response to the application, he remains critical of the permitted activity as well as the manner it was formulated. He testified he agrees with the reasons enumerated in the denial of the application, which he characterized as "very strong". As to the modified permit, he is of the opinion it was issued "without much thought being put into it" and is critical of it being based on a mere sketch.

As discussed above, Dr. Grobbel is of the opinion the project as permitted presents problems. First, the construction stage would necessarily involve heavy equipment traversing the wetlands and some excavation or digging in the installation of the pilings and drilling a well. Second, the ultimate footprint of the home, drive and sewage disposal system would shade plants, resulting in an impairment of their vitality. Dr. Grobbel is also concerned that the human activity as a result of a residence could effect wildlife. Finally, he believes building on another site altogether would alleviate any impacts on this parcel. In his opinion, conducting the activity on another site is a feasible and prudent alternative to the activity allowed in the modified permit.

Ms. Vongphasouk is a Land and Water Management Analyst, and her stipulated qualifications are as an expert in wetlands and administration of Part 303. She performed the application review and site visit for the Department. She testified the entire area is wetland, and it performs the functions of water storage capacity, filtration of runoff, and removal of nutrients. She testified the site also serves as a breeding, loafing, feeding, and nesting habitat for a variety of marsh birds and waterfowl, as well as escape cover and breeding habitat for wildlife species including reptiles and macroinvertibrates. The application was denied because the activity would destroy these functions. She considered the piling proposal as minimizing the impacts to these functions to an acceptable level.

In response to Dr. Grobbel's criticism of the lack of a thought process in issuing the modified permit, Ms. Vongphasouk admitted the process was not memorialized. However, using the Project Review Report, she addressed each and every criteria in light of the modified proposal. She came to the conclusion the modified permit would not result in an adverse impact on water circulation, wildlife, fish, turbidity, or water quality. Further, she noted the substrate, or the underlying layer of soil, would be minimally affected. She found the permitted activity to be consistent with other permitted projects. Lastly, she testified the wetland will continue to store and filter water and, in essence, continue to function.

Mr. Spencer is a District Supervisor with 16 years tenure with the Department and its predecessor agency. During this time he has reviewed several hundred permit applications a year. As previously stated, his expertise in wetlands and administration of Part 303 was stipulated to by the Petitioner. He testified he was involved in the permit modification, has been on site, and agrees with Ms. Vongphasouk's assessments regarding the impacts to this wetland. He pointed out permit conditions which address the construction stage, but admitted the permit does not address construction in the sense of requiring the Permittee provide detailed plans, such as specifications as to the size and number of the pilings. However, it is his experience engineering and cost considerations provide an adequate basis for self-regulation, and he has never experienced a problem in this regard. Both Ms. Vongphasouk and Mr. Spencer admitted there could be an alteration in wildlife usage on the site, but at worst it would be minimal.

PART 303 ANALYSIS

Wetland Determination

At the commencement of the hearing, the Parties affirmed there is no contest the project site is part of a wetland which is contiguous to Northport Bay which is part of Lake Michigan. It is also evident that the Permittee filed an application upon which the Department exercised jurisdiction under Part 303, resulting in the Department issuing of the modified permit.

I find, therefore, as a Matter of Fact, the project site is a wetland as defined in § 30301(d) and is regulated pursuant under § 30301(d)(i).

Wetland Development; Impact Analysis

Under § 30304 the following activities are prohibited without a permit, as follows:

Except as otherwise provided by this Part or by a permit obtained from the Department under sections 30306 to 30314, a person shall not do any of the following:

(a) Deposit or permit the placing of fill material in a wetland.

(b) Dredge, remove, or permit the removal of soil or minerals from a wetland.

(c) Construct, operate, or maintain any use or development in a wetland.

(d) Drain surface water from a wetland.

The modified permit allows construction in a regulated wetland, thus necessitating the need for a permit. To determine if the activity can be permitted, the criteria of § 30311 must be considered.

(1) A permit for an activity listed in section 30304 shall not be approved unless the department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.

A determination of whether the project is in the public interest is made by applying the following criteria enumerated in § 30311(2):

(2) In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity. The decision shall reflect the national and state concern for the protection of natural resources from pollution, impairment, and destruction. The following general criteria shall be considered:

(a) The relative extent of the public and private need for the proposed activity.

There is no public need for the permitted project, which contemplates a private residential use. Assumedly, the private need of the Permittee is relatively great because a permit is necessary for him to exercise any form of residential use on this parcel.

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

The Petitioners assert feasible and prudent alternative locations for the benefits of the proposed activity exist in the nature of other properties, both improved and unimproved, in the area. Exhibits 12, 13, 14, and 15. The basis for this contention is the Petitioners' argument that the existence of those alternatives absolutely prevents, as a matter of law, the issuance of a permit under § 30311(4)(b).

The flaws in this argument are obvious. To accept the Petitioners' interpretation of this provision, if carried to its logical conclusion, would mean under Part 303 any activity in a regulated wetland would be absolutely prohibited because other real property is always available where the activity could be accomplished. The Petitioner's argument violates the well established rule that when interpreting a statute, the result shall not be absurd. Gardner v Van Buren Public Schools, 445 Mich 23; 517 NW2d 1 (1994). In this case it would also cause the absurd result of the Department dictating where the applicant can or can not live. Finally, such an interpretation conflicts with prior decisions of this Tribunal involving Part 303. As stated by Administrative Law Judge William C. Fulkerson: "[I]t is not up to the Department to make judgments as to the reasonableness of [Petitioner's] thought process; it is to evaluate his proposal." Petition of Thomas Anderson, File No. 90-9-528W; 1994 WL 551231 (Mich.Dept.Nat.Res.). See also Petition of George F. Schultz, File No. 91-05-160W; 1996 WL 693887 (Mich.Dept.Nat.Res.); Petition of Charles C. Webber, File No. 94-7-214; 1996 WL 492311 (Mich.Dept.Nat.Res.).

Part 303 requires that the applicant demonstrate a lack of a feasible and prudent alternative. In this case the Permittee made a showing sufficient to alleviate the Department's concerns, as evidenced by the Department issuing the modified permit. In filing its petition challenging the agency action in this matter, the Petitioners assumed the burden to show another method or location on the same parcel is both a feasible and prudent alternative to the activity allowed in the modified permit. Opinion and Order of June 9, 1999. However, the issue will not be decided by merely holding the Petitioners did not meet their burden. Rather, the evidence on this record will be examined to determine, consistent with the de novo nature of these proceedings, if the Permittee is entitled to the modified permit.

According to the testimony of Ms. Vongphasouk and Mr. Spencer, the effects on the wetland by building on pilings greatly reduces any long term effects to the wetland. Specifically, this method would cause virtually no impediment to water flow or storage capacity, and the conditions to the permit alleviate concerns regarding the impermanent construction impacts. The modified permit prohibits deposition of excess soil materials without a permit and requires its removal. It further requires construction be conducted during the dry season or on equipment pads to prevent compaction of soil. Exhibit 10. The Permittee could not do less and build on this parcel. Finally, it is important to note there is no prohibition or regulation addressing removal of vegetation from a wetland or driving vehicles or heavy equipment thereon under Part 303 or regulations promulgated thereunder. Therefore, those activities can not be regulated by the Department.

Based on the foregoing, I find, as a Matter of Fact, the activity allowed in the modified permit is a feasible and prudent alternative method to that proposed in the application for a permit. I further find, as a Matter of Fact, there is no other feasible and prudent alternative method on the subject site to the activity allowed in the modified permit. Lastly, I find, as a Matter of Fact, there is no feasible and prudent alternative location on the subject site which would not involve the wetland since the entire parcel is wetland.

c) The extent and permanence of the beneficial or detrimental effects that the proposed activity may have on the public and private uses to which the area is suited, including the benefits the wetland provides.

As previously stated, the initial concerns of the Petitioners and Dr. Grobbel were in response to the proposal contained in the application. To reiterate the discussion above, Dr. Grobbel remains critical of the project as permitted based on the perceived impacts of the construction phase, as well as the continuing impact on the wetland if the activity is permitted. His remaining contention, the availability of a feasible and prudent alternative, has been previously addressed. The previous analysis also answers the Petitioners' concerns, namely constructing this project on pilings and using construction methods to limit impacts greatly reduces any long term effects to the wetland. I find, therefore, as a Matter of Fact, the modified permit eliminates any unacceptable disruption of the aquatic resources. I further find, as a Matter of Fact, wetland values would be impacted to a minimal immeasurable degree if the activity set forth in the modified permit were to be completed.

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

The Petitioners entered testimony that the subject property is one of a few remaining "unspoiled" wetlands in the area and it serves as an oasis of wetland benefits. A computer generated map from the Michigan Resource Information System (MIRIS) entered as Exhibit 18, shows no wetlands in Section 26 of Leelanau County. However, building on pilings consistent with the terms of the modified permit would eliminate any cumulative impact as part and parcel of its greatly lessening any wetland impacts on site. That is to say, if there is no adverse impact, there is nothing upon which to base successive additions, or anything multiplied by zero becomes a zero.

(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 contention the permitted activity would impact recognized historic or cultural values or public health. Scenic values are subjective and indeterminate in nature. The Permittee would obviously prefer to build to establish a residential use on lake-front property, while the Petitioners prefer maintaining the existence of the parcel in a natural state. Ecological values, as previously discussed, would not be adversely impacted by the activity allowed in the modified permit. Recreational values to the Permittee would be increased by establishing the parcel as a homesite. Fish and wildlife would not be adversely impacted based on the testimony, and I so find, as a Matter of Fact.

(f) The size of the wetland being considered.

The Parties agree the parcel east of Northshore Drive extending to the lake is predominantly wetland, and the area where the permitted activity will ensue west of the road is entirely wetland. The dimensions of the property have been previously stated.

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

The testimony indicates the parcel is one of a few wetlands in the area, while Dr. Grobbel stated it is the only such parcel. However, because the wetland will not be adversely impacted under the modified permit, it will remain and continue to perform the functions the legislature deemed valuable. MCL 324.30302(1).

(h) Proximity to any waterway.

The eastern portion of the parcel depicted on Exhibit 5 is a continuation of the wetland involved and fronts on Northport Bay. Therefore, the wetland upon which the project will be conducted is contiguous to Lake Michigan.

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

There is great economic value to the Permittee since it is obvious allowing a residence on the property will greatly increase its value. There will also be incidental benefit to the public because of an increase in the tax base and by providing income to those engaged in the construction. However, these latter considerations are not substantial or compelling.

(3) In considering a permit application, the department shall give serious consideration to findings of necessity for the proposed activity which have been made by other state agencies.

There have been no such findings of other state agencies.

(4) A permit shall not be issued unless it is shown that an unacceptable disruption will not result to the aquatic resources. In determining whether a disruption to the aquatic resources is unacceptable, the criteria set forth in section 30302 and subsection (2) shall be considered. A permit shall not be issued unless the applicant also shows either of the following:

(a) The proposed activity is primarily dependent upon being located in the wetland.

The construction of houses is not an activity that must occur in a wetland, but the operative term in 4(a) is "being located in thewetland". The plain and unambiguous meaning of this term is whether the activity must extend into the portion of the parcel which is wetland. See appeal of Robert C. Brammer, Sr, File Nos. 88-6-500 & 90-6-159W, Proposal for Decision, page 40. If the entire parcel is wetland, as is the situation in this case, the activity must occur in the wetland. Therefore, I find, as a Matter of Fact, the proposed project is primarily dependent on being located in the wetland.

(b) A feasible and prudent alternative does not exist.

It has been previously found the modified permit constitutes a feasible and prudent alternative to the activity proposed in the original application, and a feasible and prudent alternative to the activity allowed in the modified permit does not exist.

CONCLUSIONS OF LAW

1. I conclude, as a Matter of Law, the subject site is comprised of regulated wetland and a permit is required under § 30304(a) and (b) of Part 303.

2. I conclude, as a Matter of Law, the processing of the application for a permit and the issuance of the modified permit are procedurally correct.

3. I conclude, as a Matter of Law, having balanced the reasonably foreseeable benefits and detriments of the activity allowed in the modified permit, that it is in the public interest.

4. I conclude, as a Matter of Law, the activity allowed in the modified permit will not cause an unacceptable disruption to aquatic resources.

5. I conclude, as a Matter of Law, the activity allowed in the modified permit is dependent on being located in the wetland, which exists over the entire parcel.

6. I conclude, as a Matter of Law, the activity allowed in the modified permit is otherwise lawful.

7. I conclude, as a Matter of Law, that requiring the Permittee to purchase or use other property is not a feasible and prudent alternative to the permitted activity, and the activity allowed in the modified permit is a feasible and prudent alternative to the activity proposed in the application for a permit.

PROPOSAL FOR DECISION

Based upon the above Findings of Fact and Conclusions of Law, it is proposed that a final order be entered authorizing the modified permit as issued.

Dated: January 19, 2000

Richard A. Patterson
Administrative Law Judge

Petitions of Lilian P. Mattson, Lilian P. Mattson, Trust and Steve R. Mattson, Ph.D. on the permit issued to Larry Knowles

File No. 98-06-0217

JOINT EXHIBITS

1 Public Notice and the application for permit number 98-06-0217.
2 A letter dated December 24, 1998 from Larry Knowles to Sy Vongphasouk.
3 A letter received in the Department of Environmental Quality (DEQ), Land and Water Management Division (LWMD) on September 23, 1998 from Larry & Karen Knowles to Sally Stoll.
4 Project Review Report dated August 25, 1998 by Sy Vongphasouk and the Certificate of Survey date stamped August 4, 1998.
5 Color photocopy of a photograph of part of the site taken by the Petitioner.

6. Letter dated October 15, 1998 from Christopher P. Grobbel, on behalf of the adjacent riparian landowner, comments on wetland permit application, to LWMD, MDEQ.
7 Denial letter dated November 23, 1998 from Sy Vongphasouk to Mr. and Mrs. Larry Knowles.
8 Rite-O-Gram dated October 14, 1998 from Tom Rozich, Fisheries, Michigan Department of Natural Resources (MDNR) to Sy Vongphasouk.
9 Letter dated October 15, 1998 from Steven R. Mattson, Ph.D. to LWMD, MDEQ, comments on application.
10 MDEQ Modified Permit No. 98-06-0217 issued on January 5, 1999.
11 Proposed Rule 99-003 [EQ], MDEQ, LWMD dated February 1, 1999.
12 Two (2) listings for residential property: Leelanau County, Northport Bay water frontage (A copy of a plat map indicating location is attached for reference.)
13 Listing for residential property: Leelanau County, Grand Traverse Bay water frontage (A copy of a plat map indicating location is attached for reference.)
14 Listing for residential property: Leelanau County, Grand Traverse Bay water frontage (A copy of a plat map indicating location is attached for reference.)
15 Listing for vacant properties: Leelanau County, Grand Traverse Bay and Northport Bay water frontage (A copy of a plat map indicating location is attached for reference.)
16 Color photocopies, two (2) pages, of ten (10) photographs of the site in the Respondent's possession.
17 Color aerial photograph labeled: Sect. 26, N. Leelanau, 1998, taken by FSA.
18 MIRIS Map, Leelanau county, Wetlands. Number 26 is highlighted.
19 National Wetland Inventory Map and Legend.