SUBJECT: Part 325 Great Lakes Submerged Lands, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Danny & Susan McDavid and Nels & Susan Olson

File No. 95-6-12 and 94-6-491
___________________________________________________________________

Danny and Susan McDavid and Nels and Susan Olson own separate and adjacent real property along the Lake Michigan shore line in Leelanau County. Each couple submitted separate applications to the Department of Environmental Quality under Part 325, Great Lakes Submerged Lands, of the NREPA to place five one-hundred foot long groins, or undercurrent stabilizers, on the bottomlands of Lake Michigan. The proposed stabilizers are for the purpose of erosion control along the edge of a high bluff on the subject parcels. The applications were denied and both applicants filed a request for a contested case hearing. The cases were consolidated for hearing. The hearing was conducted by Administrative Law Judge Charles R. Toy on October 13, 14, 15, 16 and 17, 1997. Judge Toy was unable to complete a Proposal for Decision because of professional commitments and the case was transferred to the Chief Judge of this Tribunal for consideration. The Parties were notified by letter dated May 27, 1998 of this development.

The entire record of this case has been reviewed including the transcripts, exhibits, briefs and final argument of the Parties. Proposed findings and conclusions not addressed in the Final Determination and Order were found to be unsupported by the record or unnecessary in making a final decision in this contested case.

The hearing was conducted pursuant to Part 325, Great Lakes Submerged Lands, of the Natural Resources and Environmental Protection Act and the administrative rules, MCL 324.32501 et seq.; MSA 13A.32501 et seq., and the Administrative Procedures Act (APA), 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560(101) et seq. Pursuant to Section 85, MCL 24.285; MSA 3.560(185), of the APA, this is the Final Order of the Michigan Department of Environmental Quality in this matter.

Danny and Susan McDavid and Nels and Susan Olson (Petitioners) are represented by William C. Fulkerson, Warner, Norcross and Judd, P.C. The professional staff of the Michigan Department of Environmental Quality (Department) is charged with the day-to-day implementation of Part 325. The Department is represented by James R. Piggush, Assistant Attorney General.

The Petitioners presented testimony of Nels Olson; R. Thomas Segall, a certified professional geologist; David L. Schultz, a civil engineer with expertise in hydrology and hydraulics and specifically coastal processes; Elwin D. Evans, a PhD. in aquatic entomology; Dr. Norbert Wilhelm O'Hara, geologist and coastal processes; Dr. John M. Wood, M.D., a resident of North Port; Mr. John N. Stimson, III, who owns the property identified on Exhibit R-1 as "A".

The Department presented testimony of Grahame J. Larson, a professor of geology at Michigan State University; Norbert W. Gits, whose family owns property to the south of the subject parcels; Stuart N. Kogge, a Field Representative for Land and Water Management Division (LWMD), and an aquatic biologist; Matthew A. Johnstone, a Field Representative for LWMD; Thomas R. Bennett, a Land and Water Management Specialist for LWMD; and Dr. Guy A. Meadows, a professor of oceanographic engineering at the University of Michigan.

The Parties stipulated the Petitioners are proper applicants for a permit pursuant to Part 325 and that the applications were processed in a procedurally correct manner. The Parties further stipulated the proposed activity is a regulated activity, permits are necessary and the Department has jurisdiction over the land lying below and lakeward of the ordinary high-water mark.

I find these stipulations are complete and legally correct, and I adopt them as findings. 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).

The Petitioners own adjacent real property and have houses on a high bluff, approximately 100 feet above the beach, over looking Lake Michigan (Harbor Bay) in Leelanau County. The combined ownership of shoreline is approximately 1,000 feet. The Petitioners assert the toe of the buff is eroding due to wave action which is causing the top of the bluff to erode landward toward their residential structures. Both Petitioners have made efforts to stabilize the upper portion of the bluff's slope by planting vegetation. They have also installed a buried shore parallel device to control erosion at the toe of the bluff. To further control erosion at the toe of the bluff, Petitioners applied for the installation of five one hundred foot long groins, or more specifically, undercurrent stabilizers.

The applications for the proposed stabilizers were prepared by David L. Schultz, a civil engineer. Mr. Schultz explained the proposed stabilizers are tapering concrete tubes that run perpendicular to the shore. There is typically a larger mass at the toe of the bluff to prevent breaching by any extreme storm events, and as they go into the water they step down in size and become less prominent. He testified the proposed stabilizers are to be 100 feet in length, and at the current water level of Lake Michigan, one third of the length would be on the beach, one third transitional and one third under water. Approximately one-half of the length of the undercurrent stabilizers would be regulated by the Department under Part 325.

The Department denied the permit applications and asserts neither the toe nor the crest of the bluff is eroding at an accelerated rate. Exhibit P-2: McDavid denial letter and P-4: Olson denial letter. The Department contends the proposed project will not work, will interfere with use and habitat and has no public or private benefit.

Mr. Matthew A. Johnstone, LWMD, reviewed the Petitioners' applications and subsequently denied them. Mr. Johnstone testified he believed the stabilizers would cause erosion which would result in damage to adjoining properties. Transcript, page 557. However, he further testified the denial letters are essentially boiler-plate denial letter language. Transcript, pages 572 and 595. As such, I find they have no evidentiary value to this matter.

Under Part 325, the Department does not regulate activity unless it is to take place below the ordinary high water mark of a Great Lake as defined in section 32502. MCL 324.32502. The standards to be applied in reviewing an application are also found in that section. In pertinent part, this section provides:

This Part shall be construed so as to preserve and protect the interests of the general public . . . and to permit the filling in of patented submerged lands whenever it is determined by the department that the private or public use of those lands and waters will not substantially affect the public use of those lands and waters for hunting, fishing, swimming, pleasure boating, or navigation or that the public trust in the state will not be impaired . . .. MCL 324.32502

In July of 1996 Mr. Stuart N. Kogge, LWMD, performed a study of the invertebrates and fish found in the near shore environment at the Olson-McDavid properties. Exhibit P-18. Mr. Kogge made calculations on the potential the proposed stabilizers would have to impact this habitat. In the report detailing his findings, the area to be impacted, 7,200 square feet, was calculated on the square foot area the structures would occupy on the bottomlands. Transcript, page 496. However, Mr. Kogge testified approximately 50 feet of the proposed stabilizers would be on the beach, or in the much less productive high energy splash zone adjacent to the beach. Further, a portion of the stabilizer would be situated beyond the productive rock habitat on the sand bottom. While the total actual square footage the proposed stabilizers would occupy approximately 6,000 square feet, the area of regulated by Part 325 and the productive habitat they would occupy is less than 3,000 square feet and I so find, as a Matter of Fact.

Mr. Kogge's testimony regarding possible use of the area by commercial and recreational fishermen is speculative. Further, in the area where Mr. Kogge did sampling for his study, he could not use a sein because of the presence of large boulders. Dr. John M. Wood testified the proposed stabilizers would not interfere with hunting, fishing or navigation, while Mr. John N. Stimson, III testified the stabilizers do not interfere with fishing or boating. This beach area is private for long distances to the north and south of the Olson-McDavid property. Mr. Nels Olson testified he does swim in the water off the beach and would not attempt to sail within 50 feet of the shore because of the large rocks. He further testified that he has seen no commercial navigation or anyone hunting or fishing within 300 feet of shore, but has observed several people walk the beach since 1993. This testimony is consistent with that of Mr. Norbert W. Gits, whose family has owned property in the area since 1973. Mr. Gits has also been familiar with the area since the 1940's. Furthermore, the proposed stabilizers would only extend approximately 50 feet into regulated bottomlands.

Based on the foregoing, I find, as a Matter of Fact, the following:

1) There is little, if any, public use of the bottomlands which would be occupied by the proposed stabilizers, or the immediate area of the proposed structures.

2) There is little private use of these bottomlands.

3) If the proposed stabilizers were permitted they would not present any more of an obstruction or an inhibitor to navigation or use of the surface waters than do the large boulders that are present.

4) The private use of these lands and waters for the proposed activity will not substantially affect the public use of swimming, pleasure boating, or navigation.

Michigan has embraced the landmark public trust case of Illinois Central Railroad v Illinois, 146 US 387; 13 S Ct 110; 36 L Ed 1018 (1892), in establishing standards for the conveyance of bottomlands. Obrecht v National Gypsum Company, 361 Mich 399, 105 NW2d 143 (1960). In pertinent part, the Obrecht Court discusses situations where a grant is appropriate:

. . . where the State has, in due recorded form, determined that a given parcel of such submerged land may and should be conveyed 'in the improvement of the interest thus held' (referring to the public trust). The other is present where the State has, in similar form, determined that such disposition may be made 'without detriment to the public interests in the lands and waters remaining.' Obrecht, supra p 412-413 (1960). See also, Superior Public Trust v DNR, 80 Mich App 72, 84 (1977).

The Department argues in its post-hearing brief that section 32505(2) expresses the standard the Department is to apply to determine whether it can enter into agreements for use of public trust lands. Page 8-9. MCL 324.32505(2). This argument was specifically addressed and rejected as being clearly erroneous in Superior, supra p 86-87. The Superior Court ruled that the standards the Department is to apply in reviewing an application are in MCL 322.702 (now 324.32502) and there are no additional standards contained in MCL 322.705 (now MCL 324.32505). The same is true for the Department's argument regarding MCL 325.32503(1).

Based upon the findings of fact regarding both public and private uses, I find, as a Matter of Fact, that by permitting the proposed activity there is no detriment to the public interests in the lands and waters remaining. I find, as a Matter of Fact, the public trust on these waters would not be impaired by the proposed activity.

In reviewing an application for permit the Department must consider Administrative Rule 15. 1982 AACS, R 322.1015. It states:

In each application for a permit, lease, deed, or agreement for bottomland, existing and potential adverse environmental effects shall be determined. Approval shall not be granted unless the department has determined both of the following:

(a) That the adverse effects to the environment, public trust, and riparian interests of adjacent owners are minimal and will be mitigated to the extent possible.
(b) That there is no feasible and prudent alternative to the applicant's proposed activity which is consistent with the reasonable requirements of the public health, safety, and welfare.

The only testimony regarding environmental effects was that of Mr. Kogge and Dr. Elwin D. Evans. Their testimony was limited to the potential for the destruction of aquatic habitat from the proposed stabilizers.

As previously discussed, Mr. Kogge performed a study of the invertebrates and fish found in the near shore environment at the Olson-McDavid properties. Exhibit P-18. Mr. Kogge testified he observed invertebrates, periphyton and several species of fish in the near shore rock habitat. He testified the rock environment provides habitat for spawning and nursery for the types of species he found. The species he found were not likely to be present in a sand environment. Transcript, page 491. As previously discussed, Mr. Kogge made calculations on the potential impact on this habitat which would result from the proposed stabilizers. However, as previously found the square foot area which the proposed stabilizers would occupy on the bottomlands is less than 3,000 square feet. Productive habitat that would be affected is less than the amount or are which would be occupied by the structures. Dr. Evans testified he visited the Olson-McDavid site on two separate occasions. On his first site visit the wind was out of the southwest between 30 and 35 miles per hour and the waves were 4 to 6 feet high. Dr. Evans testified he could not get down on the beach because of the high water. He testified that at this time there was considerable transport of sand, fine coarse gravel and stone gravel about the size of a lemon. He testified there are few animals in this environment during this type of condition and the habitat is poor because of high waves and turbulence. Transcript, page 314. Because of the conditions on the site, Dr. Evans was unable to take samples on either of his site visits. Transcript, page 316.

As regards to Mr. Kogge's sampling and Report, Exhibit P-18, Dr. Evans had little disagreement with the majority of it, except for the calculation of the area of bottomland the proposed structures would occupy. He also disagreed that the structures would eliminate aquatic organism habitat because some of the animals would burrow under the structures and the concrete structures themselves would provide habitat for some animals. Transcript, page 318. Based on the limited observations by Mr. Kogge, Dr. Evans could not testify to the loss of habitat that may result from the proposed structures. Dr. Evans conceded the environment was a very difficult place to sample. He did opine that in the whole scheme of things along a coastline of this length, the loss of square footage resulting from the proposed stabilizers, whatever it may be, would not mean a thing ecologically. Transcript, page 320. I find, as a Matter of Fact, Mr. Kogge's conclusions regarding habitat loss due to the proposed stabilizers is speculative. I further find, as a Matter of Fact, there would be no environmental harm if the proposed stabilizers were constructed.

Mr. Johnstone, who reviewed and denied the applications, opined the adjacent or down drift riparians would be deprived of their right to sand in the littoral drift and may be exposed to erosion if the activity is permitted. Riparians possess a proprietary interest in the uninterrupted flow of sand carried to their land by littoral current in its natural state. Peterman v Dep't of Natural Resources, 446 Mich 177, 196; 521 NW2d 499 (1994). If the Petitioners' activity is to accomplish its intended purpose, there may be validity to this assertion. However, as discussed below, the area of the proposed project is a sand starved environment and there is little sand available in the littoral currents. As regarding the potential for erosion from the stabilizers on down littoral current riparians, testimony provides there is down current erosion at some sites and in others there is not.

Given the extensive testimony of the relative stability of this beach, which is addressed below, I find, as a Matter of Fact, the possibility of down current erosion is minimal. I find, as a Matter of Fact, there would be negligible, if any, adverse effects to riparian interests of adjacent owners should the proposed activity be constructed. I find, as a Matter of Fact, because of the de minimis impacts to adjacent riparian owners, there is no need to mitigate the impacts.

Mr. David L. Schultz testified alternatives to the proposed stabilizers could be seawalls constructed of steel, wood or vinyl. Also, the use of seawalls could be used in combination with groins. Rock revetments and groins are also alternatives to undercurrent stabilizers. Additional alternatives, which include sand grabber walls, wave buster walls and other structures of that nature are uncommon for this area. Transcript, page 217.

Mr. Schultz testified he would not recommend a revetment to protect the toe and the lower vertical at this site because if the shoreline is armored there will be a deepening in front of the revetment and more beach will be lost. He testified a wider sandy beach is more protecting and healthier. Transcript, page 229. Undercurrent stabilizers are not as aggressive a bluff protector as other methods and systems that are available. Transcript, page 254. Mr. Schultz testified that if one is trying to protect their investment on top of the bluff, then there are better choices than undercurrent stabilizers. Id.

Dr. Norbert Wilhelm O'Hara testified he would not recommend a revetment or sea wall to protect the toe of this bluff because they reflect energy and wave action and cause a deepening on the water side of the structure. Transcript, page 409. As a result, the water will come around behind it and affect the people on either side, resulting in the necessity to armor all the way up and down the beach. This could result in the potential for harm to neighboring properties. Transcript, page 438. Dr. O'Hara testified groins have a certain amount of effectiveness but act somewhat like a seawall in that a groin will build up sand on one side while depleting sand on the other side.

Mr. Johnstone testified an alternative to the proposed stabilizers would be to construct a rock revetment by placing quarried lime stone or heavy grip gravel along the base of the bluff. Transcript, page 560. He testified this would provide better protection of the property without having to occupy Lake Michigan bottomlands. However, Mr. Johnstone testified any protection for the bluff at the Olson-McDavid properties is unnecessary.

Dr. Guy A. Meadows testified that no alternative is needed at the Olson-McDavid site because the beach itself is doing an extremely good job of protecting the base of the bluff. Transcript, page 748. If such an effort was undertaken, he suggests laying some additional rock or cobble of the same size of that presently on the beach. However, he testified that if sand were brought onto this beach, it would not last very long as it would be transported out to deeper water, as is currently the case. Transcript, page 749.

Another alternative, which has been previously discussed, is that which Mr. Olson and Mr. McDavid have already done, planting vegetation. This activity appears to be an effective method to stabilize the toe and the beach area.

Based on the foregoing, I find, as a Matter of Fact, there may be a feasible and prudent alternative to the Petitioners' proposed activity. However, I find there is no feasible and prudent alternative which is consistent with the reasonable requirements of the public health, safety, and welfare.

In Michigan riparian owners on inland lakes and streams own their share of the bottomlands to the thread of the lake or stream. Conversely, the people of the State of Michigan own the bottomlands of the Great Lakes. The first sentence of section 32502 provides for this public ownership of the bottomlands. MCL 324.32502. Based upon this public ownership and interest in the Great Lakes bottomlands, there must be a stated reason to occupy them. Petition of Knight Harbor Marina, File No. 90-8-92G (1994).

The purpose of the Petitioners' applications is to protect the toe of the bluff from wave erosion, and thus curtailing erosion on the upper bluff. From this standpoint, the Parties put forth substantial evidence regarding the bluff itself and the erosion taking place on it.

Mr. Olson testified there is an upper vertical at the bluff edge which varies from 45 to 50 feet, and then the bluff resumes at an angle of about 45 degrees down to the beach. Exhibit P-5.

Mr. Segall, a professional geologist retained by the Petitioners, testified the bluff consists of a glacial moraine with the top portion, that with the steep vertical, being a kamic moraine. He testified the steep vertical consists of sorted sand, gravel and a pebble mixture which is cemented, while the lower portion consists of sand, clay and boulders. The sloped portion of the bluff below the upper vertical consists of an eroded moraine and material which has eroded from the upper vertical.

Professor Grahame J. Larson, the Department's consulting professional geologist, is of the opinion the bluff is a drumlin. He testified the drumlin consists of generally unsorted, and some stratified assemblage of rocks, cobbles, boulders, clay and sand with very little structure. Transcript, page 348. He testified a drumlin produces a different type of a face than a kame. Usually a drumlin has a much steeper and more erosion resistant face, and that a face like that of this bluff would collapse almost immediately if it were a kame. Transcript page 349. He testified this bluff consists of glacial till called Bedford till. In his opinion the upper vertical is not cemented at all, but rather is compacted. Transcript page 397. He testified the upper vertical is eroding and the slope area of the bluff is a talus slope comprised of the eroded material. Transcript, page 364.

As detailed above, Mr. Segall and Professor Larson do not agree as regarding the type of glacial feature which makes up this bluff. The major difference in their testimony is whether the upper vertical consists of sorted-cemented or unsorted-compacted material. Dr. O'Hara, also a professional geologist retained by the Petitioners, testified it does not matter whether the bluff is a kame sitting on a moraine or a drumlin. What is important to him is the erosion occurring on the bluff face.

The major factual dispute between the Parties is whether the bluff crest is eroding and thereby threatening the Petitioners' houses on the top. If this erosion is occurring, the important question in this case becomes whether it is a result of erosion at the toe of the bluff caused by wave action.

Mr. Olson testified there is erosion occurring on the upper vertical of the bluff and that he and the McDavids have expended considerable sums of money attempting to stabilize the upper vertical of the bluff through revegetation. He testified that he believes the bluff edge is receding at a rate of one to two feet a year.

Mr. Gits testified he has not seen the upper vertical slope change in any manner except for the time when it was manipulated by the McDavid's predecessor in title. Transcript, page 445. He testified Mr. McDavid's reseeding of the area has now controlled the excessive erosion that resulted from said manipulation. Transcript page 443. Mr. Gits stated there is no question that some erosion is occurring on the bluff face.

Mr. Segall testified the upper vertical is eroding and this is evidenced by slumping. That is, the material on the surface is falling down the slope as the upper vertical is eroded away. Mr. Segall testified that erosion of the upper vertical could be the result of wind, rain and groundwater. See photograph 2 of Exhibit 13. Mr. Segall and Dr. O'Hara testified wave erosion at the toe of the bluff is contributing to instability and erosion above. They opine the toe of the slope is being robbed of sand by wave action and the coarser materials are left behind. See photograph 6 of Exhibit 13. Over time the toe erosion keeps cutting into the edge of the slope forming a steeper slope. Both experts believe erosion is occurring from both above and below. Mr. Segall stated he could not testify as to the rate of erosion on any part of the bluff.

Professor Larson testified the bluff is susceptible to surface wash from drainage coming from either the top or rain falling on its face. Transcript, page 363. Evidence of erosion can be seen in the gullying of surface, which originates on the face. Professor Larson testified there is no doubt in his mind the erosion on the bluff is primarily from surface water and ground water, but not from lake water. Transcript, page 386. Professor Larson opined that keeping the lake water off of the toe of the bluff by any means would have no effect on the erosion occurring on the bluff face. Transcript page 388. In reference to Exhibit R-7, he stated the material comprising the bluff is stable and would remain at this angle for a considerable amount of time because of its compaction. Transcript, page 383.

Mr. Thomas R. Bennett, LWMD, an expert in coastal processes, reviewed aerial photographs from 1938, 1980 and 1993 to determine whether the top of the bluff was receding landward and whether vegetation at the toe was retreating landward. Transcript, page 649. Exhibit R-27 is a composite of the 1993 aerial photograph which Mr. Bennett used as a base map to illustrate bluff changes in comparison with aerial photographs of the site taken in 1938, 1980 and 1993. Mr. Bennett testified that by comparing these photographs, the top of the bluff at the McDavid site has not moved to any measurable degree between 1938 and 1993. Transcript, page 662. With regard to the Olson site, the confidence in the 1938 data decreased. But, Mr. Bennett testified the crest of the bluff at the Olson site between 1980 and 1993 did not retreat to any measurable degree. Transcript, page 662. He testified the gully pattern which exists was in the same place in 1993 as it was in 1938. Transcript, page 664. This is also true for the vegetation pattern on the slope. Transcript, page 663. Mr. Gits has also observed little change in the vegetation pattern on the slope since the 1940's.

Mr. Bennett testified the terminus of the gullies are well landward of the vegetated toe. Transcript, page 664. From this analysis it is clear the erosion on the bluff is from the top to the bottom rather than from the bottom to the top. Id. He concluded that if there is erosion as a result of lake activity, it is not measurable. Transcript, page 665. Mr. Johnstone testified that during his site investigation, he saw no evidence of cutting at the base of the bluff. Transcript, page 559.

Dr. O'Hara felt that erosion was a threat to the structures on top of the bluff. Transcript, page 414. Conversely, Professor Larson testified he is confident that the Petitioners' houses are not going to be compromised by the erosion. Transcript, page 377. Mr. Gits testified the upper vertical of the bluff is very stable and there is no problem with it from his observations. He does not believe there is any danger from erosion to the buildings on top of the bluff. Transcript, pages 457-458. Mr. Bennett is also of the opinion that Mr. Olson's house is not in any immediate danger. Transcript, page 703. Mr. Schultz testified the Olson-McDavid property is probably not in imminent danger from an erosive event at the toe of the bluff. Transcript, page 254. He testified that because of the relative erosion resistance of the bluff, any erosion event that occurs at the toe would take some time to reach the top. Transcript, page 255.

Based on the foregoing, I find, as a Matter of Fact, the following:

1) There is erosion on the face of this bluff.

2) This erosion is naturally occurring and has taken place over a long period of time.

3) The erosion is from the top down and is being caused by nature's forces on the face of the bluff, including surface and ground water.

4) Both the upper vertical of the bluff, the talus slope and the toe have been, and continue to be, relatively stable.

5) The houses on top of the bluff are not in any immediate threat as a result of erosion on the bluff.

Mr. Segall testified the beach area consists of mostly cobble because any sand eroding down from above is being moved out of the area by wave action. With reference to Exhibit 13 photograph 9, Mr. Segall referred to this portion of the beach as a terrace beach. He testified that terracing cobble of this size was a result of high energy wave action. Mr. Segall, as well as all other witnesses, characterized the beach as a sand starved beach because the sand is continually being removed from the up shore out into the lake as the water comes in.

Mr. Schultz testified the beach area in general has a slope of one to ten and is approximately 30 to 35 feet wide and this beach platform is not wide enough to protect the toe of the bluff from erosion. In his opinion there is a need for shore protection, in the form of undercurrent stabilizers, so as to build a larger and flatter beach. However, without some other kind of shore parallel or perpendicular structure it is quite likely that a beach will not be established when lake levels drop. Transcript, page 254.

As previously indicated, Mr. Gits stated he has observed no changes to the beach in front of the Olson-McDavid properties since the 1940's. Transcript, page 441. The day before his testimony he walked the beach and stated the winds, estimated to be at 30 to 40 knots, were coming directly on to the beach out of the west. He observed waves 3 to 4 feet high coming up and over the beach and hitting into the rocks. He noted a certain amount of disturbance of the rocks in an up and down fashion, but did not observe them washing away. In fact, he testified that if anything, the waves were pushing the rocks further up against the bluff. Testimony, page 446.

Dr. Meadows testified that off of the Olson-McDavid property the water ranged in depth from 5 to 7 feet at 150 feet out from the shore. Transcript, page 738. He testified the slopes of the bottomland are on the order of 1 to 20, which is very steep and unusual, as opposed to sandy coastlines where slopes are more generally on the order of 1 to 50. Transcript, page 739. Dr. Meadows testified that because of the unusually deep water, the waves approaching are unobstructed until they are very close to the beach itself. Therefore, wave dissipation occurs over a very short distance since the beach is so steep. Transcript, page 739. The waves do not roll, instead water simply rushes up the beach and is then drained away. He testified the fine grained materials would be swept away very easily on this beach. Transcript, page 741.

Dr. Meadows conducted a study of the off shore substrate from the shoreline to approximately 150 feet lakeward. Exhibit R-38. He found very little sand and the substrate was mostly rock and cobbles. Dr. Meadows did not detect a sand bar, but only a thin veneer of sand in places. He testified that the rock and cobble beach at this site is stable and successful at dissipating wave energy without causing damage to the near shore. He observed, above the water line, that the slope is maintained and the rock had been pushed up by wave action. He points to the existence of substantial trees at the base of the bluff in support of this conclusion. Transcript, page 747. He saw no evidence that wave energy had struck the base of the bluff over the past 20 years. He testified there is no wave attack at the base of the bluff and the beach is very effective at dissipating the wave energy. Transcript, page 748. Mr. Bennett's observations and aerial photograph comparisons are consistent with this testimony.

I find, as a Matter of Fact, the beach area at the Olson-McDavid site is high energy, but relatively stable. I find, as a Matter of Fact, the beach and near shore area is sand starved and there is very little sand in the littoral drift. I find, as a Matter of Fact, the rock-cobble beach is dissipating wave energy without causing damage to the toe of the bluff.

Mr. Schultz testified extensively regarding the need for a wider and shallower beach platform to protect the backshore area. He opined the stabilizers in this location would have an immediate effect of expending wave energy further from shore and any effects of deposition or erosion would occur over a longer period of time. Mr. Schultz testified stabilizers work better in a beach environment because there is sand available in the near shore.

Dr. O'Hara testified that undercurrent stabilizers appear to do anywhere from a little good to a great deal of good, although he could not explain the factors involved in either end of that spectrum. Transcript, page 436. Dr. O'Hara quantified the good that they produce is to build a beach, which takes energy out of the wave action and stops erosion as much as possible. Transcript, page 410. Dr. O'Hara testified stabilizers work because they settle down the near shore currents and allow some deposition of sand to take place. Transcript, page 417.

Several witnesses testified regarding the effectiveness and ineffectiveness of stabilizers installed at other locations in the general area. The only consensus to be drawn is that some do seem to work and some do not. Two key factors which are important to their success is the availability of sand in the system to create a beach and a relatively gently sloped beach area.

Dr. Evans testified that at the Olson-McDavid site it would be difficult to keep too much sand in place. Transcript, page 331. Dr. Meadows testified along shore transport of material would be very small in this area. Transcript, page 744. He also testified that with the very steep sloped bottom there is a net tendency to move finer materials off shore and insufficient energy in the waves to move sand from a depth of 100 feet and put it on the shore. In Dr. Meadows' opinion, undercurrent stabilizers at the Olson-McDavid site would not be effective in building a beach because there is no along shore transport of material necessary to build a beach. According to Dr. Meadows, if there is no along shore transport, then installation of a groin is an ineffective and improper engineering application. Transcript, page 746. He testified the environment at the Olson-McDavid site renders the effects of undercurrent stabilizers benign. Transcript, page 756.

Based on the foregoing, I find, as a Matter of Fact, the following:

1) The Olson-McDavid site is a sand starved environment both in the adjacent land form and in the littoral currents.

2) The steep slope of the beach and the adjacent bottomland is not conducive to building a beach by using undercurrent stabilizers.

3) The proposed undercurrent stabilizers at this location will likely fail to fulfill their intended use.

4) The installation of the five proposed undercurrent stabilizers at this location is likely to be ineffective in fulfilling the Petitioners' purpose.

1. Based upon the stipulation of the Parties, I conclude, as a Matter of Law, the Petitioners are proper applicants for a permit in this matter.

2. Based upon the stipulation of the Parties, I conclude, as a Matter of Law, the Petitioners' applications were processed correctly by the Department.

3. Based upon the stipulations of the Parties, I conclude, as a Matter of Law, a portion of the proposed activity will take place below the ordinary high water mark of Lake Michigan, which is regulated by the Department, and a permit is required for the proposed activity.

4. Based upon the Findings of Fact, I conclude, as a Matter of Law, that if the activity were permitted the private use of the land and water will not substantially affect the public use of those lands and waters for hunting, fishing, swimming, pleasure boating, or navigation. MCL 324.32502.

5. Based upon the Findings of Fact, I conclude, as a Matter of Law, the public trust impressed upon the waters of Lake Michigan will not be substantially impaired nor will the public interest in the lands and waters remaining. MCL 324.32502.

6. Based on the Findings of Fact, I conclude, as a Matter of Law, any adverse effects to the riparian interests of adjacent owners from the proposed activity are de minimis and, therefore, mitigation is not required. 1982 AACS, R 322.1015(a)

7. Based on the Findings of Fact, I conclude as a Matter of Law, the environment will not be adversely affected by the proposed activity. 1982 AACS, R 322.1015(a).

8. Based on the Findings of Fact, I conclude as a Matter of Law, no feasible and prudent alternative to the proposed activity is available which is consistent with the reasonable requirements of the public health, safety, and welfare. 1982 AACS, R 322.1015(b).

9. Some Department staff reviewed the applications under a standard which prohibits groins and especially those in excess of 50 feet in length. That standard is improper and such a legal interpretation is incorrect under Part 325. The correct standard does not unilaterally prohibit such activity, rather each permit application is to be reviewed under the statutory standards and administrative rules of Part 325. No blanket prohibition exists against groins of any length, nor can one be reasonably implied from Part 325. See,Petition of Knight Harbor Marina, File No. 90-8-92G, page 17 (1994).

10. The public's interest in the bottomland requires it not be conveyed when the proposed activity serves no useful purpose. While Part 325 permits bottomland occupancy for private purposes, absent any impairment of the public trust, it does not permit occupancy of bottomlands if a private benefit is lacking. The balance clearly requires retention of bottomlands in public use when private use is illusory or unnecessary. Solely because an activity is less than a substantial impairment of the public trust does not lead to the conclusion it is a permissible activity. If this bluff was actually eroding from the bottom up and the project would help to protect the bluff from erosion it could be permissible. However, I conclude, as a Matter of Law, this permit should not be granted because it is an occupancy of public trust bottomlands that unreasonably encroaches on the public's interest in the bottomlands. Although a true public interest test is not the standard to be applied in evaluating a reallocation of a public trust resource, it is a proper consideration to preserve and protect the interest of the public in the bottomlands. MCL 324.32502. The interest of the public in the bottomlands is paramount when the occupancy proposal is one of doubtful private benefit or the occupancy is unnecessary and excessive. Petition of Knight Harbor Marina, File No. 90-8-92G, page 18 (1994).

Based upon the Findings of Fact and Conclusions of Law, it is DETERMINED that the Petitioners' applications for five one-hundred foot long undercurrent stabilizers is an unnecessary occupation of state owned bottomlands because they serve no purpose at this particular location.

THEREFORE, IT IS ORDERED; the applications for a permit, made under File No. 95-6-12 and 94-6-491, to place a portion of five one hundred foot long undercurrent stabilizers below the ordinary high water mark of Lake Michigan is DENIED.

Date: July 15, 1998

Richard G. Lacasse
Chief Administrative Law Judge

Petition of Danny and Susan McDavid and Nels and Susan Olson

File Nos. 95-6-12 and 94-6-491

Petitioner's Exhibits

P 1 Application for Permit, Danny D. and Susan A. McDavid, Department of Natural Resources (DNR), Land & Water Management Division (LWMD) receive date of January 12, 1995.
P 2 Letter to Danny and Susan McDavid dated March 17, 1995, from Matt Johnstone, LWM Analyst, DNR.
P 3 Cover letter dated October 27, 1994 from David L. Schultz, P.E., Sandel Chappell & Schultz, P.C. with the Application for Permit, Nels and Susan Olson, DNR, LWMD receive date of October 31, 1994.
P 4 Letter to Nels Olson dated March 17, 1995, from Matt Johnstone, LWM Analyst, DNR.
P 5 Video, labeled "Olson-McDavid, August, 1997. This tape last 12 minutes. In the last half of the tape there are 4 or 5 blank periods which last up to 5 seconds. Watch through them."
P 6 Color photo-copy of four pictures, titled, "Project Located south of Leland Harbor-Mich. Slope Work completed in July, 1995".
P 7 Color photo-copy of one photograph, 8½" x 11".
P 8 Color photo-copy of a panoramic view, titled, "Leland Site, May, 1994" (four pictures laying side by side).
P 9 Color photo-copy of a panoramic view, titled, "Leland Site, May, 1994" (five pictures laying side by side).
P 10 Color photo-copy of one photograph, 8½" x 11".
P 11 Color photo-copy of one photograph, 8½" x 11".
P 12 Color photo-copy of one photograph, 8½" x 11".
P 13 Fifteen (15) color photographs, 4" x 6", Photo by R. Thomas Segall, September 13, 1997.
P 14 Resume, R. Thomas Segall.
P 15 Drawing, Nels Olson, dated October 27, 1994, Approximate Mean High Water Elev. (579.8' - International Great Lakes Datum '55).
P 16 Drawing, Danny D. & and Susan A. McDavid dated January 6, 1995, Mean High Water Line Elev. (579.8' - International Great Lakes Datum, 1955).
P 17 Video, labeled "Lake Michigan Shoreland At Duck lake, October 30, 1996".
P 18 Michigan Department of Environmental Quality (MDEQ), Interoffice Communication, dated July 31, 1996 from Stuart Kogge to Olson/McDavid File.
P 19 Resume, Elwin D. Evans, Ph.D.
P 20 Resume, Norbert W. O'Hara, Ph.D.
P 21 MDEQ, Interoffice Communication, dated November 10, 1994, from Martin Jannereth to Sally Stoll.

Respondent's Exhibits

R 1 Coreboard, United States Department of the Interior Geological Survey, Leland Quadrangle, Michigan-Leelanau Co., 7.5 Minute Series, (Topographic).
R 2 Coreboard, Quaternary Geology Status Map, Department of Geological Sciences, The University of Michigan, Ann Arbor, 1992.
R 3 Letter dated May 1, 1995, to Matt Johnstone from David L. Schultz, P.E.
R 4 Coreboard, United States Department of the Interior, Geological Survey, Gills Pier Quadrangle, Michigan-Leelanau Co., 7.5 Minute Series (Topographic).
R 5 Resume, Grahame J. Larson.
R 6 Color Photograph, 8" x 12", label marked May 6, 1996, TRB, Applicants Bluff.
R 7 Color Photograph, 8" x 12", label marked May 6, 1996, TRB, Applicants Bluff.
R 8 Michigan Department of Public Health, Water Well and Pump Record, four well logs.
R 9 Colored photograph, 3½" x 5", label, "Beach looking north from our property Summer of 96. Note, absence of any sand and therefore stable beach condition."
R 10 Polaroid colored photograph, 3½" x 4", label, "View looking south from Olson property toward McDavid property. Photo attempts to indicate rock size and depth of beach."
R 11 Polaroid colored photograph, 3½" x 4", label, "View looking north toward Olson property. This rock beach extends several miles both north and south from this position."
R 12 Polaroid colored photograph, 3½" x 4", label, "Side view of Olson property showing no indication of beach erosion."
R 13 Polaroid colored photograph, 3½" x 4", label, "Front view of McDavid property with no signs of erosion."
R 14 Polaroid colored photograph, 3½" x 4", label, "view looking from lake toward beach. Note large rocks under water protecting beach. This formation extends 50 to 100 feet out into the lake."
R 15 Resume, Stuart Nelson Kogge.
R 16 Resume, Matthew A. Johnstone.
R 17 Color photograph, 5" x 7", Gits-Mother's property south going north.
R 18 Color photograph, 5" x 7", Gits-Mother's property on top of beach.
R 19 Color photograph, 5" x 7", South side looking South.
R 20 Resume, Thomas R. Bennett.
R 21 MDNR, Interoffice Communication, dated February 27, 1995, to Matt Johnstone from Tom Bennett, Subject: In Office Review of Application, File No. 95-6-12.
R 22 MDNR, Interoffice Communication, dated February 16, 1995, to Matt Johnstone from Tom Bennett, Subject: In Office Review of Application, File No. 94-6-491.
R 23 Black and White Aerial Photograph, 8" x 10", dated July 18, 1938.
R 24 Color Aerial Photograph, 8" x 12", dated April 22, 1980.
R 25 Color Aerial Photograph, 8" x 12", dated May 11, 1993.
R 26 Coreboard, Aerial Photograph, dated April 22, 1980, digitized.
R 27 Coreboard, Aerial Photograph, dated May 11, 1993, digitized.
R 28 Color Photograph, 8" x 12", tree in front of Nels and Susan Olson Property, dated May 6, 1996, TRB.
R 29 Color Photograph, 8" x 12", label, "M. David Property, dated May 6, 1996, TRB."
R 30 Color Photograph, 8" x 12", label, "Applicants Property, August 26, 1997, MRJ."
R 31 Color Photograph, 8" x 12", dated June 26, 1997, MRJ.
R 32 Color Photograph, 8" x 12", label, "Base of Talus Slope, Applicants Property, May 6, 1996, TRB."
R 33 Color Photograph, 8" x 12", label, "Lake Michigan. Duck Lake. Installation Site, dated August 26, 1997, TRB."
R 34 Color Photograph, 8" x 12", dated June 26, 1997.
R 35 Hydrograph of Great Lakes Water Levels, U.S. Army Corp of Engineers, Detroit District.
R 36 Resume, Guy A. Meadows.
R 37 Photo-copy of a Map.
R 38 Coastal Processes at Duck Lake, Leland, Michigan, Summary of Investigation, Report of Guy A. Meadows and William L. Wood, dated August 5, 1996.