IN RE: GOEMAERE-ANDERSON WETLAND PROTECTION ACT APPEAL
OF WILLIAM J. MELLEROWICZ

Cause No. 85-11-162 G/W

The Natural Resources Commission, having considered the Proposal for Decision dated March 23, 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 adopted and affirmed in its totality and is further incorporated into this final decision by reference and is adopted by the Department of Natural Resources as its findings of fact and conclusions of last. (See Proposal for Decision, Cause No. 85-11-162 G/W, dated March 23, 1989, attached hereto.)

Date Raymond Poupore, Chairman
Natural Resources Commission

IN RE: Goemaere-Anderson Wetland Protection Act Appeal of
William J. Mellerowicz

Cause No. 85-11-162 G/W

William C. Fulkerson
March 23, 1989
Administrative Law Judge

This matter is a contested case concerning the application of William J. Mellerowicz for a Wetlands Permit. The entire matter was submitted on a stipulated record and no verbal testimony was received. Therefore, this opinion is written from the exhibits and statements of the parties.

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. Mellerowicz filed for a contested case hearing pursuant to the act.

The Petitioner, William Mellerowicz, is the owner of a residential lot No. 5, adjacent to Lake Huron, in Section 28, Fairhaven Township, Huron County, Michigan. He purchased this property on June 11, 1984, and on July 26, 1985, Mr. Mellerowicz applied for a permit to place approximately 2,800 cubic yards of fill on his property, that is 100 feet wide and 250 feet deep, so that he could develop it into a site suitable for building. The site is contiguous to Saginaw Bay and it is divided by Rose Island Road. The parcels of land on both sides of the Petitioner's have homes build on them. These were probably filled prior to the Wetlands Act. Mr. Mellerowicz wants to build his home on the section of the lot that is across the road from Saginaw Bay. He plans to build on the part of his lot that lies between the two residences already there. The Petitioner believes that the land where he wants to build his home does not generally support wetland vegetation or aquatic life that is generally found in a wetland. He further submits that the portion of his lot where he wants to build is at the same approximate level as the developed sites of his would-be neighbors.

The Department made investigations and sought comment from agencies in response to the permit application. The Corps of Engineers commented, Stipulated Exhibit 12, as Follows:

Wetlands are considered by USEPA to be special aquatic sites because of their values for sediment trapping, nutrient retention, and fish and wildlife habitat. The wetland proposed to be filled under this public notice is part of a larger wetland that has environmental value as a special aquatic site. In cases such as this, involving the placement of fill material into a special aquatic site for a non-water-dependent purpose, Section 230.10(a) of the guidelines states that practicable alternatives are presumed to exist and to be less damaging unless clearly demonstrated otherwise.

Several Department witnesses, trained in wetland identification, visited the property. It was their opinion in every instance that this entire parcel of land is a Palustrine emergent weatland. [DNR Stipulated Exhibit No. 5.]

This lot is in a wetland area which is actually in the backwaters of Saginaw Bay. Aquatic vegetation including cattail and sedges are growing on the site and there was standing water on the site when I was there. The amount of water varies according to the strength of the prevailing winds. Although the adjacent lots have been filled in the past, I believe it would be unwise to continue this practice. Wetland wildlife in the area will suffer anytime additional marsh land is filled in. The wildlife division should oppose this application for a permit.

The parcel is a part of a larger wetland complex (approximately 500 hundred acres in size) that surrounds Rose Island subdivision. The record supports their observations. Mr. Mellerowiczls land is contiguous to Saginaw Bay of Lake Huron.

I find that the subject parcel of land, in its entirety, is a Palustrine emergent wetland. The soil is apparently organic soil, and the record indicates that "Applicants property is presently entirely wetland w/approximately 70% under 2-3 inches of water." Some of Petitioner's photographs show the property to be dry at times. Also found in DNR'S Stipulated Exhibit No. 2, was Spencer's on-site evaluation that potential adverse impact may result from this project for water circulation, wildlife, water quality, and aesthetics. The common plants identified were willow, aspen, red osier dogwood, sedges, and cattails. These plants are typical wetland vegetation. The uncontroverted evidence is that Mr. Mellerowicz's property is wetland, that it is contiguous to a Great Lake, in excess of five acres, and is therefore, subject to the requirements of the Act. 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.

---------------------------------------------------------------------------------

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:

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

---------------------------------------------------------------------------------

Lakefront property, such as the property involved here, has considerable recreational value for those who would build homes there. The Construction of homes would also add to the local tax base to support local services.

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

---------------------------------------------------------------------------------

Along Saginaw Bay, in the area of the subject property, much of the land is developed for homes and cottages. The majority of land remaining is wetlands, with the same characteristics as Mr. Mellerowicz's parcel. There may be some undeveloped upland in the vicinity', however, Mr. Mellerowicz does not own any such upland. The Department, stated in DNRIS Stipulated Exhibit No. 7, on page 3: "The Department recommends that you pursue the purchase of an upland non-wetland parcel for development."

(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.

---------------------------------------------------------------------------------

The filling proposed by Mr. Mellerowicz would eliminate an area of wetlands that measure 25,000 square feet. This would permanently eliminate a portion of the larger wetland system. The wetland was identified as a flood storage area, potential groundwater recharge area, and having wildlife values. These values would be eliminated. The current use of the property by the general public is minimal, and in its present undisturbed state, probably is minimal for private use also. The filling would permanently change a diverse wetland habitat to upland.

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

--------------------------------------------------------------------------------

The Mellerowicz property, is typical of lands within this area. That is, there are more that 500 hundred acres of wetlands adjacent to Rose Island Road, and Saginaw Bay. Mr. Mellerowiczls lot is in an area of residential lots, that have been filled and developed. The shoreland has been developed for residential recreational use. Most of the land, in the area, is in agricultural use. If the owners of the remaining undeveloped land would choose to create building sites, the only way they can do so is by filling of the wetlands. Therefore, it was the Department staff's opinion that the potential cumulative effect of similar types of proposals could be very significant, and that this permit for fill should be denied.

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

---------------------------------------------------------------------------------

The historic and cultural impact of the proposed development is probably minimal. The scenic impact is a subjective one, certainly the attraction to the Petitioner is the scenic and recreational value of the Bay. The wildlife value for the property is diverse. A likely value of this wetland area is as a stormwater runoff retention area and possibly a groundwater recharge area. One investigator commented that he would expect storms on the lake to flood portions of the lot.

The size of the wetland being considered.

--------------------------------------------------------------------------------

The wetland, proposed to be filled, is 250 feet by 100 feet and is a subdivided residential lot.

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

---------------------------------------------------------------------------------

DNR'S Stipulated Exhibit 2, the Project Review Report, indicates that much of the general area is wetlands. Of that, a portion has been filled and developed in the past, primarily along the shoreline.

Proximity to any waterway.

------------------------------------------------------------------------

This is an area that is contiguous to Saginaw Bay of Lake Huron.

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

---------------------------------------------------------------------------------

The proposed construction of a residence would provide some construction work, add to the local tax base, and create a need for goods and services by those persons who would occupy the lands. The record clearly indicates that the Petitioner will suffer loss of his future home if the parcel cannot be filled and be made buildable. Further, Mr. Mellerowicz believes that he was not properly, advised that his land could not be built upon and habitated by him. Clearly he believes that the parcel cannot be used or occupied without filling the wetland. Mr. Mellerowicz believes that the inability to fill the wetland adversely effects the value of his property. He states that, "Therefore, what could have been a very valuable piece of property is now worthless."

(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 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:

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

A feasible and prudent alternative does not exist.

---------------------------------------------------------------------------------

The proposed activity is not primarily dependent upon being located in at wetland. If anything, the location of a drainage field and the building of a house foundation, within a wetland area, poses problems. The Department found that the primary effect of the proposed development was a cumulative one, that is, the loss of an additional 250 feet by100 feet of Palustrine emergent wetland contiguous to Lake Huron and part of a larger wetland complex. The only alternative the Department suggested to Mr. Mellerowicz was that he purchase another parcel of upland for a building site. Whether or not the Petitioner chooses to do so is an issue independent of any matter at issue here. An unacceptable disruption to the aquatic resources will occur if this property is developed. The record clearly shows that the property is a high-quality emergent wetland, with a wide diversity of plant species, that will be lost by filling.

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 activity will cause an unacceptable disruption of the aquatic resources.

PROPOSAL

Based on the foregoing, I conclude that the Department properly denied the permit as applied for. It is further proposed that an unacceptable disruption of the aquatic resource would occur by permit issuance.

Dated:

William C. Fulkerson
Administrative Law Judge

RE: Goemaere-Anderson Wetland Protection Act Appeal of
William J. Mellerowicz,

Cause No. 85-11-162 G/W

Application For Permit, dated July 26, 1985.
Project Review Report, dated, August 2, 1985.
Public Notice, dated August 22, 1985.
4a. Memorandum, to Bill Deephouse, from Steve Spencer, and reply from Bill Deephouse, August 27, 1985.
4b. Memorandum, to Dave Dominic, from Steve Spencer, and reply from Dave Dominic, August 27, 1985.
Memorandum, to Dave Dominic, from Bud Jarvis, August 5, 1935.
Memorandum, to Bill Jennings, from Robert Gurchiek, September 6, 1985.
Letter of denial September 12, 1985.
Joint Public Notice, September 19, 1985.
Letter, to Petitioner, from Huron County Health Department, September 27, 1985.
Letter, to Petitioner, from Army Corps of Engineers, September 30, I985.
Letter, to Petitioner, from Chris A. Shafer, October 4, 1915.
Letter, to Army Corps of Engineers, from Elmer D. Shannon, October 10, 1985.
Photographs, October 17, 1985 land Determination, July 27, 1988.
Wetland Determination, July 27, 1988.
Respondent's Prehearing Statement.