IN RE: GOEMAERE-ANDERSON WETLAND PROTECTION ACT
APPEAL OF WILLIAM J. AND JOAN M. McCOOL

File No. 87-6-66W

The Natural Resources Commission, having considered the Proposal for Decision dated April 25, 1989, of the Administrative Law Judge, and the files, pleadings, briefs, and oral argument in this matter, hereby determines and orders that:

The Proposal for Decision is approved and is adopted by the Commission as its findings of fact and conclusions of law. (See Proposal for Decision, File No. 87-6-66W, dated April 25, 1989, attached hereto.)

Date Raymond Poupore, Chairman
Natural Resources Commission

IN RE: Goemaere-Anderson Wetland Protection Act Appeal of
William J. and Joan M. McCool
Cause No. 87-6-66W

William C. Fulkerson
April 25, 1981
Administrative Law Judge

This matter is a contested case concerning the application of William J. and Joan M. McCool for a Wetlands Permit.

JURISDICTION

The hearing was conducted pursuant to 1979 PA 203, the Goemaere-Anderson Wetland Protection Act.

PARTIES

The professional staff of the Department of Natural Resources is charged with the day-to-day implementation of the Goemaere-Anderson Wetland Protection Act. William J. and Joan McCool filed for a contested case hearing pursuant to the act.

The Petitioners are the owners of land in Blair Township, Grand Traverse County, Michigan. Their parcel of land is approximately 18 acres in size. The land is 660 feet wide by 1320 feet deep. The property is rectangular, orientated north-south. The Boardman River flows through the southerly portion of the property. The Boardman River is a designated Natural River. McCool's property includes land on both sides of the river and they have approximately 1,000 feet of river frontage. This property has been in the family for a considerable amount of time. Dr. McCool testified that he has been familiar with the property since childhood and purchased it from an aging aunt several years ago. The McCools applied for a permit to fill an area, 75 feet X 75 feet, as a building site for a rustic style cabin. The site is set-back approximately 100 feet from the Boardman River at the closest point, with access along an existing logging road. The site is located near the center of the narrow boundary of the property and is approximately 700 feet south of River Road, which is the northerly property line.

It is undisputed that the area sought to be filled is within a wetland, contiguous to an inland stream and that a permit is necessary. Following the Department's review, the permit was denied. The denial was premised on the fact that the Petitioners had sufficient upland available to construct their home. The subject property consists of 18 acres in total, of which approximately 16 acres are wetland. The upland portion is the north end, adjacent to River Road. The layout of the land, the Petitioners' proposal, and the DNR alternative building site are best demonstrated by Exhibit #2. The building site required by the DNR is adjacent to River Road and a railroad right-of-way. The Petitioners rejected this site as being entirely unsuitable.

I find, as a matter of fact, that the area proposed to be filled is a wetland, which is contiguous to a inland stream, the Boardman River, and thus, requires a permit. The Wetlands Act contains criteria for the review of permit applications and mandates that findings be made with regard to each criterion.

Sec. 9 (1) 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.

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A determination of whether the project is in the public interest is made by applying criteria discussed in the "Act". A permit is necessary to engage in the activity requested, and it is otherwise lawful activity.

(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:

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

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The proposed activity is the construction of a home on the property. Dr. McCool testified that it was his intention to occupy the home in his retirement.

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

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The benefit the Petitioners expect from building their home at the desired location is to have a view of the river and to enjoy wildlife that frequent the area. Dr. McCool testified that the aesthetic concerns were his primary reason for acquisition of the property and for selection of the home location. He viewed the construction of a home, within the upland portion of his property, as totally unacceptable and, in fact, undesirable.

(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.

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The filling proposed by the Petitioners would eliminate an area of wetlands 75 feet X 75 feet. This would permanently change that portion of the land from wetland to upland. The fill represents less that 1% of the area of the Petitioners property. It is thus very difficult to quantify or qualify the effect upon the wetland and its values. This is a high-quality wetland, adjacent to a high-quality, pristine cold-water stream. The occupancy of a home and the human encroachment will have some detrimental effect on the wildlife use and cause the introduction of some pollutants to the wetland system.

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

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The Petitioners' property is among fairly large tracts of land where the development pressure is not particularly great. Pursuant to the Natural River Zoning, the Petitioners' property could be divided into three separate parcels. It is reasonable to assume people who choose to build in this area would choose to locate as close as possible to the river. The Department staff indicated that they had never issued a permit similar to the one requested by the Petitioners, when there was available upland. They viewed the potential issuance of this permit as a significant, negative precedent.

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

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The historic and cultural impact of the proposed development is probably not significant. The scenic impact is of major concern. The fact that the Boardman River is a designated Natural River is recognition of its scenic value and of its public importance as a natural resource. Department witnesses expressed concern that the presence of human habitation would serve to lessen wildlife use. The area was a deer yard prior to logging most of the cedars. Dr. McCool testified be intended to make plantings that are beneficial for wildlife.

The size of the wetland being considered.

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The extent of the wetland was not in evidence. The portion on the Petitioners' property is approximately 16 acres. It appears to be part of a larger wetland complex following the river course.

The amount of remaining wetland in the general area.

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The amount of wetlands remaining in the general area was not in evidence. However, a review of Exhibit #1 shows that there is a considerable amount of undeveloped state owned land in the immediate area, including adjacent land fronting the river. The McCool property appears to be bordered by similar lands, that is, lands that are primarily wetlands

Proximity to any waterway.

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As previously discussed, this wetland is contiguous to the Boardman River.

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

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The proposed construction of a home would provide some construction work and add to the local tax base. The public value of lands adjacent to scenic rivers is considerable. The Petitioners consider their property to be of little value, if they cannot locate a residence in the more desirable portions of the land, adjacent to the river.

(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.

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There have been no findings by any 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 3 and subsection (2) shall be considered. A permit shall not be issued unless the applicant also shows either of the following:

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

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

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It is clear 'that proposed activity is not primarily dependent upon being in a wetland. The construction of homes can take place any number of places, but a wetland is not a requirement for a home site.

This matter embraces the recurring question of what is "a feasible and prudent alternative". The Petitioners have requested a building site in order to enjoy the solitude of the property, have a view of the river, and the wildlife. The Petitioners consider building on the upland portion of their site not only infeasible and imprudent, but also undesirable. There are a number of reasons why the Petitioners deem the upland location undesirable, most of them are aesthetic. As previously discussed, this parcel of land has been held by Dr. McCool, and his family for a number of years. The Petitioners enjoy the property and are very concerned about protecting it. The natural beauty of the wetlands and river, together with the wildlife that dwell there, are very important to the Petitioners. When this is contrasted with the upland site, it is not difficult to see why it is unacceptable to them. The upland site is traversed by a railroad track, which is in use. The testimony was conflicting as to the frequency of the trains. Dr. McCool testified that he believed trains went by daily during the summer and less frequently during the winter. The Department witnesses believed that the frequency of trains passing the property was much less. The upland area is a disturbed, flat area, with no view of the river. The view is of the railroad tracks and of some dilapidated buildings on adjacent properties. Though it is possible to construct a dwelling at the upland location, Dr. McCool considered the location imprudent and unacceptable. Dr. McCool's feelings about the subject were summed up in Exhibit #33, a letter from Dr. McCool to the Department, which states:

As you will be aware, it would not be prudent f or me to purchase or continue to keep a piece of property with over a 1000 feet of prime river frontage so that I could build next to a railroad track and public road, not to even have a view of the river.

The Department's response, in correspondence contained within Exhibit #1, is quote:

I assert that the upland alternative would also be prudent. Prudent in my dictionary is defined as foresighted or wise. The Department of Natural Resources contends that building on your upland property would be both foresighted and wise. In addition, I stated that we would work with you and attempt to find an acceptable upland building site or one with only minor filling involved, but you stated that was not an acceptable alternative to you.

It is the Petitioners' position that the proposed fill is minimal and will be done in as environmentally sound and unobtrusive way as possible. Their property could be divided into three building sites. If it were, two of the building sites would probably have no upland upon which to build. Development under those (Conditions would be a more serious intrusion. The Petitioners propose to pump wastewater from the home to a tile field on the upland portion of the land; this removes the septic system from near the river. Their proposal is to leave the land in as natural a state as possible, with minimal disturbance for construction.

The issue here is whether the Wetlands Act is to be interpreted to, allow fill within a wetland, when a upland site on the property is available. It is the Department's position, because of the prohibitive nature of the Wetlands Act, that an upland site must be selected in preference to wetland fill.

CONCLUSIONS OF LAW

1. The Petitioner has applied for a permit to engage in an activity which requires a permit under the Goemaere-Anderson Wetland Protection Act.

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

3. I conclude, as a matter of law, that the proposal is not wetland dependent.

I conclude, as a matter of law, that a feasible and prudent alternative to filling the wetland exists, in that there is an upland site for the construction of a dwelling. This conclusion is premised upon the interpretation of "feasible and prudent alternatives" in light of the paramount concern for the projection of natural resources. Thus, in order to establish there is no feasible and prudent alternative, it must be shown that there are truly unusual circumstances or costs of an extraordinary magnitude.

PROPOSAL

Based on the foregoing, it is proposed that the denial of the permit application was proper.

Dated:

William C. Fulkerson
Administrative Law Judge

RE: Goemaere--Anderson Wetland Protection Act Appeal of
William J. and Joan M. McCool

Cause No. 87-6-66W

STIPULATED EXHIBITS

1. Public Notice, Application for Permit, Project Review Report and related correspondence to reviewing and making a decision related to permitting the project in re: McCool.
2. Graphic outline of "Proposed Building Site Within Wetland" and "DNR Alternate Building Site On Upland", with scale.
3-16. Photographs, with dates, showing varied sites on the property.
18-32. Photographs, with dates, showing varied sites on the property.
33. Letter, with attachments, to Mrichard Kikkenga, DNR, from Dr. William J. McCool, August 27, 1987.