SUBJECT: Part 301, Inland Lakes and Streams and Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Oceana County Road Commission

File No. 96-09-0634 and 96-09-0355 (Combined Files)

The above captioned matter was the subject of a contested case hearing resulting in the issuance of two Proposals for Decision dated January 29, 1999. The Office of Administrative Hearings gave the Parties until February 22, 1999, to file written Exceptions to the Proposals for Decision. Counsel for the Oceana County Road Commission (Petitioner) filed its Exceptions on February 19, 1999. Counsel for Land and Water Management Division (LWMD) filed its Exceptions on February 22, 1999.

In a memorandum to Flint Watt, Acting Deputy Director, dated February 11, 1999, Counsel for LWMD requested the Director serve as final decision maker in these cases under Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01. The basis for the request was that the cases pose significant policy questions. The memorandum was served on the Petitioner. On February 18, 1999, the Petitioner filed a Motion to Strike and Objection to the Memorandum. On February 22, 1999, final decision making authority was retained by the undersigned. On April 9, 1999, the Parties made Oral Argument. At that time the Petitioner filed Proposed Findings of Fact and Conclusions of Law.

The cases are 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 these cases consideration has been given to the Proposals For Decision, the written Exceptions, transcripts, exhibits, pleadings and arguments. Proposed findings and conclusions not addressed in this Final Determination and Order were found to be unsupported by the record or unnecessary in making a final decision in this contested case. This Final Determination and Order addresses the two Proposals for Decision (PFD) issued in this matter.

As previously indicated, the Petitioner has filed proposed Findings of Fact and Conclusions of Law. As mandated by §85 of the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560(101) et seq., each finding and conclusion is ruled on separately below.

1. Findings of fact which are uncontested by the LWMD:

a. The South Branch of the Pentwater River and Carlton Creek are now, and historically have been, incapable of floating logs. Therefore, as a Matter of Fact, neither the South Branch nor Carlton Creek is a navigable stream.

This finding is consistent with that contained in the PFD. I adopt this finding of fact in the context of whether or not the streams are subject to the public trust. Bott v Natural Resources Commission, 415 Mich 45; 327 NW2d 838 (1982).

b. Neither proposed project will adversely effect riparian rights, agriculture, commerce, or wildlife.

Based on the record and the findings in the PFD, I adopt this finding of fact.

2. Findings of fact with which LWMD takes issue:

a. Installation of twin culverts as proposed in both projects will not materially adversely effect fish and fisheries and will serve to facilitate the Road Commission's and Township's fiscal responsibilities.

Based on the record, I reject this proposed finding, and similar findings contained in the PFD, regarding the proposed activities impact upon fish and fisheries. Under Part 301 the fiscal responsibilities of the Petitioner and the affected Townships may be one factor to consider under the feasible and prudent alternative analysis required by 1985 AACS, R 281.814(d). Rule 4 is discussed in detail below. A local government's use of the water is a consideration, but it is not a factual issue in this case. MCL 324.30106.

b. Good or valuable trout streams abound in Michigan and trout are not a rare or endangered species.

This finding is rejected because it is unnecessary for a final determination under Part 301 and the factual issues in this case. So far as the PFD is inconsistent with this finding, it is rejected.

a. The South Branch of the Pentwater River at 136th Avenue and Carlton Creek at 92nd Avenue are not subject to regulation under Part 301 of NREPA.

I reject this proposed conclusion of law because the record supports the facts that both streams at issue in this case have definite banks, a bed, and visible evidence of a continued flow or occurrence of water. MCL 324.30101(e). Any activity below the ordinary high water mark of an inland lake or stream is prohibited without a permit from the Department of Environmental Quality. MCL 324.30102. I adopt the conclusion of law contained in the PFD that both streams are subject to regulation under Part 301.

b. Neither the South Branch of the Pentwater River nor Carlton Creek are navigable bodies of water and neither are impressed with the public trust and, therefore, the proposed projects will have no impact thereon.

Based on the analysis set forth above in Item 1(a), this proposed conclusion, which is consistent with the PFD, is adopted.

c. Neither project will have any inverse (sic) impacts on riparian rights resulting from the proposed activities, and therefore, the proposed activities will not adversely effect the rights of riparians.

Based on the finding in the PFD and 1(b) above, this proposed conclusion is adopted.

d. The proposed activities must be permitted because neither will adversely effect the public trust or riparian rights.

I reject this conclusion of law based upon the analysis in 2(a) above. Additionally, I conclude, as a Matter of Law, all of the standards contained in §30106 must be considered in reviewing an application under Part 301. MCL 324.30106.

e. The proposed activities will not adversely effect the waters of the South Branch of the Pentwater River or the waters of Carlton Creek or the waters from which or into which either flows.

As discussed below, I reject this proposed conclusion.

f. The proposed activities will have no adverse effect on recreation, fish or wildlife, aesthetics, local government, agriculture, commerce or industry.

I reject this proposed conclusion of law because it is inconsistent with the statutory standard of the uses of all such waters for recreation, fish, wildlife, aesthetics, local government, agriculture, commerce or industry. MCL 324.30106. This proposed conclusion is also inconsistent with the findings of fact set forth below.

g. Any adverse environmental impact that results from either of the proposed activities is de minimis in nature, and feasible and prudent alternatives are not an issue.

I reject this proposed conclusion of law for the reasons set forth below.

h. The administration of the Natural River Act is vested solely in the Michigan Department of Natural Resources and, consequently, the Michigan Department of Environmental Quality lacks jurisdiction to rule on the merits of Natural Rivers Act issues.

I adopt this proposed conclusion of law. This conclusion is consistent with that of the PFD on the Carlton Creek application and the Tribunal's Opinion and Order issued on November 14, 1997, denying the Petitioner's Motion for Summary Disposition or, in the alternative, Partial Summary Disposition.

After a through review of this record, I find the proposed activity would result in a significant adverse impact to the high quality fish and fish habitat present in Carlton Creek and the South Branch of the Pentwater River. Specifically, there is ample evidence on this record to find the potential for the culverts at both locations to perch. Once a culvert is perched, trout and other high quality game fish would be precluded from moving up and down the streams. This creates a potential of isolating significant portions of the water courses from fish movement either up or down stream, thus unnecessarily restricting fish movement. Contributing to this adverse effect on the fish in these two streams is the likely occurrence of debris collecting on the up stream end of the culverts, further restricting the movement of fish. In addition to the adverse effect on fish, culvert perching would segment the streams, resulting in a disruption and change in their natural flow characteristics.

The water course at the crossings are serpentine in nature. Exhibits S-9 and S-10. Given this, the proposed positioning of the culverts, in relation to the natural stream, would result in the occurrence of unnecessary erosion and sedimentation. This erosion and sedimentation would have adverse impacts on fish, fish habitat and water quality. Therefore, I find, as a Matter of Fact, the installation of the proposed culverts would result in significant adverse environmental impacts to the streams.

If there is the potential for more than a de minimis environmental impact by the proposed activity, then the Environmental Assessment Rule must be considered. MCL 324.30106; 1985 AACS, R 281.814. The record in this case shows a substantial potential for adverse environmental impacts, especially to fish habitat and water quality. Therefore, an examination of feasible and prudent alternatives to the proposed activity must be made. 1985 AACS, R 281.814(d).

The cost of twin arch culverts (culverts) is estimated to be $20,000 each. Exhibit S-8 and Testimony of Michael Smith, pg. 83. If installation was done in the "dry" an additional $10,000 in cost would be incurred. Id. at pg. 110-111. The culverts have a useful life of 30 years. Id. at pg. 78. The cost of a treated timber clear span bridge (bridge) is estimated at $37,000 each. Testimony of Gerald W. Fulcher, pg. 302. A bridge would have a useful life in excess of 50 years. Testimony of Michael Smith, pg. 103. However, a bridge requires less maintenance cost than culverts and would not entail any activity at or below the ordinary high water mark of the streams. Another consideration is the fact that installation of the culverts along with shore protection and sedimentation control measures so as to ensure the protection of fish and the environment would place the cost in excess of $20,000 per site.

Given the increased costs of the culverts due to maintenance and adequate environmental protection, the difference in cost between the two methods is less then what the PFD finds. Furthermore, there is no evidence on this record to support a contention that the fiscal responsibilities of the Petitioner and Townships would preclude the installation of bridges at these crossings.

Based on the record in this case, I find, as a Matter of Fact: 1. There would be little, if any, adverse impacts to the environment by constructing bridges over the stream crossings.

2. The bridges are feasible alternatives to the installation of culverts on the stream beds.

3. The bridges are prudent alternatives to the culverts given their initial cost, useful life, lessened need for maintenance and that adverse impacts to fish and the environment would be totally negated.

LWMD argues that, as a Matter of Law, the two streams at issue in these cases are impressed with the public trust. That argument is premised on the holdings in People v Collison, 85 Mich 105, 108; 48 NW 292 (1891), People v Soule, 238 Mich 139, 213 NW 195 (1927), and Attorney General v Hermes, 127 Mich App 777; 339 NW2d 545 (1983). However, all three of these cases are concerned with the right and the duty of the Department of Natural Resources to regulate fishing in this state. The basis espoused for state regulation of fish in each of these cases is that the state, as public trustee, is charged with the duty and obligation to protect fish through its game laws.

Essentially, the cases cited by LWMD in this regard hold that fish in the streams, lakes and Michigan waters of the Great Lakes, are property of the state and that the taking of fish is a privilege. The state is the "public trustee" of these resources. Id., at 785. I conclude, as a Matter of Law, the "public trustee" obligation of the state is separate and distinct from the "public trust" doctrine as it is to be applied under §30106 of Part 301. However, as part of the "public trustee" obligation of the state to protect fish, I conclude, as a Matter of Law, the Department of Environmental Quality must assist in the protection of fish in administering its regulatory programs. This authority is explicit in §30106 because it directs consideration of the uses of the water by fish.

Based on the findings of fact, I conclude, as a Matter of Law, the installation of a treated timber clear span bridge at the crossings of Carlton Creek and the South Branch of the Pentwater River is a feasible and prudent alternative to the placement of twin arch culverts, and accompanying shore stabilization and sedimentation control measures. Said alternative would mitigate adverse impacts to the extent possible. MCL 324.30106; 1985 AACS, R 281.814.

Installation of culverts is contemplated in no less than four administrative rules of Part 301. Therefore, I conclude, as a Matter of Law, the use of culverts for steam crossings is not prohibited by Part 301. Given this conclusion of law, this Final Determination and Order applies only to the merits of the application for a permit and the facts of this case.

Based upon the findings of fact and conclusions of law, it is DETERMINED the Petitioner's applications for permits to construct culverts at two road crossings should be denied.

NOW, THEREFORE, IT IS ORDERED:

1. The Proposals For Decision of January 29, 1999, is ADOPTED and INCORPORATED by reference so far as it is consistent with this Final Order.

2. The applications for a permit submitted by the Oceana County Road Commissions under File No. 96-09-0634 and 96-09-0355 are DENIED.

3. The Department of Environmental Quality does not retain jurisdiction in this matter.

Dated: April 15, 1999 

Russell J. Harding, Director
Department of Environmental

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

Petition of the Oceana County Road Commission Re: Crossing of Carlton Creek at 92nd Ave.

File No. 96-09-0355

Dated: January 29, 1999
Richard A. Patterson
Administrative Law Judge

This contested case involves the Department of Environmental Quality's (Department) denial of two applications for a permit filed by the Oceana County Road Commission (Petitioner). The applications proposed to replace existing bridges with twin-arched culverts at two road crossings in Oceana County.

The contested case hearing in this matter was held on December 4, 5 and 18, 1997. Subsequently, both parties filed written closing statements, the Petitioner on April 30, 1998 and the Department's on May 22, 1998. The Petitioner's reply to the latter was filed June 5, 1998.

On June 24, 1996 an application for permit was filed by the Petitioner to replace a bridge crossing Carlton Creek at 92nd Avenue in Grant Township, Oceana County. Another application was filed on October 28, 1996 to replace a bridge crossing the South Branch of the Pentwater River at 136th Avenue in Elbridge Township, Oceana County. In denying the applications the Department articulated a number of statutes it considered applicable, but stipulated at the commencement of the hearing that only Part 301 is applicable. The contested cases involving both applications were consolidated for hearing by stipulation of the Parties with the understanding that separate Proposals for Decision would be issued as to each. This Proposal for Decision addresses the application, identified as File No. 96-09-0355, regarding the bridge spanning Carlton Creek at 92nd Ave. Exhibit P-2.

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 governmental action equates to a constitutional taking of property.

In a petition for a contested case hearing filed on October 15, 1996 a hearing was requested under the provisions of Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30101 et seq.; MSA 13A.30101 et seq. The hearing was conducted pursuant to the Michigan Administrative Procedures Act, MCL 24.201, et seq., MSA 3.560(10), et seq.

The Petitioner is represented by Mr. Edward J. McNeely. During the hearing the Petitioner presented nine (9) witnesses: Mr. Michael Smith, Director, Oceana County Road Commission; Mr. Alex Sanchez, Engineering Technician, Land and Water Management Division (LWMD); Mr. David Woller, Grant Township Supervisor; Mr. William H. Wagner, Grant Township Clerk; Mr. Walter Kroll, Grant Township Treasurer; Mr. Chris Crosby, a riparian owner on the South Branch of the Pentwater River; Mr. Walter Wheeler, Elbridge Township Supervisor; Mr. Calvin Ackley, Oceana County Drain Commissioner; and Mr. James E. Smalligan, consultant.

The Department is represented by Mr. Stephen F. Schuesler, Assistant Attorney General. The Department presented eleven (11) witnesses: Mr. Richard Popp, Engineering Technician, LWMD; Ms. Holly Vickers, Engineering Technician, LWMD; Mr. Alex Sanchez, Engineering Technician, LWMD; Mr. Gerald Fulcher, Jr., Chief, Transportation and Flood Hazard Management Unit, LWMD; Mr. Keith D. Eustice, Retired, Chief of the Transportation Hydraulic Review Unit, LWMD; Mr. Bruce Menerey, Environmental Engineer, LWMD; Mr. Thomas R. Walter, United States Department of Agriculture, Forest Service, Huron Manistee National Forest; Mr. Andrew Nuhfer, Fisheries Research Biologist, Hunt Creek Fisheries Research Station, Michigan Department of Natural Resources (MDNR); Mr. Richard O'Neal, Fisheries Biologist, MDNR; Mr. Daniel Pearson, Natural Rivers Coordinator, MDNR; and Mr. Gary E. Whelan, Fisheries Habitat Protection Specialist, MDNR.

The Petitioner introduced 14 exhibits, which are labeled "P", and the Department introduced 12 exhibits, which are labeled "S". A list and description of those exhibits are included at the end of this Proposal for Decision.

The Parties entered into the following factual stipulations:

1) The Petitioner is the proper applicant for a permit.

2) The processing of the application was procedurally correct.

3) The Department based its denial of the application on Part 301.

Stipulations of fact 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). I find these stipulations are legally correct and adopt them as findings.

In addition to addressing the criteria of Part 301 the Department asserts that Carlton Creek, is a tributary of the White River, and therefore, subject to the White River Natural River designation and rules. As such, the proposed activity is subject to 1979 AC, R 281.301, et seq., specifically 1979 AC, R 281.305 (2)(b)(viii), which provides:

When replacing an existing bridge or culvert, or constructing a new road crossing over a designated natural river, a structure to accomplish the road crossing shall be designed to maximize the purpose and objectives of the natural river act. In reviewing an application, the department shall consider the anticipated effects of the structure on any portion of the natural river area, and shall consider all of the factors outlined in subrule (1) (a) to (f).

Those considerations of the subrule are:

(a) Effect on the environmental factors and ecological systems involved, such as effect on adjacent lands, waters, aesthetics, wildlife, fisheries, recreational, floodplain, vegetation, and historic and archaeological values.

(b) Cumulative effect upon the natural river area from similar potential developments.

(c) Alternatives available to the applicant.

(d) Secondary effects likely to be caused or encouraged by the project, such as off-road vehicle use, horseback riding, or additional foot access which may lead to noise, erosion, water pollution, or disruption of aesthetic qualities.

(e) Economic factors relating to costs of right-of-way acquisition, construction and maintenance,and the need for additional facilities or resource protection measures in the approximate area in the future.

(f) All factors relevant to the purpose and provisions of these rules.

Mr. Daniel Pearson testified that multiple arched culvert installations are considered acceptable structures under the foregoing rule, but could not recall any actually being permitted. However, under the foregoing rule it is evident that the proposal involved here is not absolutely prohibited.

Prior to the hearing the Petitioner, by motion, challenged the jurisdiction of the Department over Part 305 and argued its applicability to the Carlton Creek project. The fact that Natural Rivers regulation is solely vested in the Department of Natural Resources, as opposed to the Department of Environmental Quality, was affirmed by an Order of this Tribunal dated November 14, 1997. That Order further stated that the issue of relevancy of Part 305 to a review of an application for permit under Part 301 was a factual issue and deferred ruling pending the development of an evidentiary record. The motion was renewed by counsel for the Petitioner, and denied by the undersigned, based on the finding that a Part 305 designation was a relevant consideration of the Part 301 review involved. However, this Proposal for Decision is limited to review of the Department of Environmental Quality and does not obviate the necessity of separate Part 305 consideration by the Department of Natural Resources and/or local authorities as they have exclusive jurisdiction.

Certain constitutional challenges were also articulated by the Petitioner, and preserved on this record. However, it is well established that an administrative tribunal is a quasi-judicial body which lacks subject matter jurisdiction over constitutional claims. Dation v. Ford Motor Co., 314 Mich 152, 22 NW2d 514 (1946), and its progeny.

WHETHER CARLTON CREEK IS IMPRESSED WITH THE PUBLIC TRUST AND/OR REGULATED.

The record clearly indicates that Carlton Creek is both currently and historically incapable of floating logs. I find, as a Matter of Fact, that Carlton Creek is not navigable. However, the Petitioner contends that because it is not navigable, it cannot be impressed with the public trust. Therefore, it argues, there can be no impact, adverse or otherwise, on the public trust and Part 301 mandates issuance of a permit.

The argument is based on the language of MCL 324. 30106 which provides; "[T]he department shall issue a permit if it finds that the structure will not adversely affect the public trust or riparian rights." From this language it is clear that Part 301 protects the public trust in inland lakes and streams. It is also fundamental that the public trust per se only applies to navigable waters. Bott v. Natural Resources Commission, 415 Mich 45; 327 NW2d 838 (1982).

The Department argues that the public trust is expanded by the provision of 1995 AACS, R 281.811(g) which provides:

"Public trust" means all of the following:

(i) The paramount right of the public to navigate and fish in all inland lakes and streams which are navigable.

(ii) The perpetual duty of the state to preserve and protect the public's right to so navigate and fish.

(iii) The paramount concern of the public and the protection of the air, water, and other natural resources of this state against pollution, impairment, and destruction.

(iv) The duty of the state to protect the air, water, and other natural resources of this state against pollution, impairment, or destruction.

However, this language is merely a recitation of the provisions of Michigan Constitution of 1963, art 4, §52, which declares a paramount concern in the air water and other natural resources of the state. The provision is not self executing and is only implemented through the legislative enactment of regulatory statutes, such as Part 301. State Highway Commission v. Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974). While subsection (i) contains standards, the remaining subsections are couched in terms of "duties" and "concerns" and recite no standards or criteria to be considered.

The public trust doctrine has its roots in the common law. Collins v. Gerhardt, 237 Mich 38, 211 NW 115 (1926). According to Collins, the public trust in navigable waters protects the public's right to navigation, fishing and fowling. The Michigan Supreme Court has held that any expansion or broadening of the public trust must come from the legislature after balancing the societal considerations. Bott, supra. Because it would impair established property rights, it is impermissible to expand the public trust beyond its common law meaning. Pigorish v. Fahner, 386 Mich 508; 194 NW2d 343 (1972). A review of the rule indicates that rather than expanding the public trust, it would appear it in fact limits the doctrine due to the omission of fowling from subsection (i).

In limiting this matter to the common law, as this Tribunal must, it is clear that Carlton Creek is not impressed with the public trust as it is not navigable and I so conclude, as a Matter of Law.

However, the foregoing conclusion does not end the analysis of whether the Department regulates the stream. Part 301 mandates regulation beyond traditional public trust waters to include non-navigable waters and underlying bottom lands up to the ordinary high water mark. The second sentence of §30106 provides:

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

Under §30101(e), an inland lake and stream is defined as:

...a natural or artificial lake, pond, or impoundment; a river, stream, or creek which may or may not be serving as a drain...or any other body of water that has definite banks, a bed, and visible evidence of a continued flow or continued occurrence of water...

As evidenced by the definition, whether the body of water is navigable, or impressed with the public trust, is not an issue in determining the Department's jurisdiction over the feature. Furthermore, if there is no impact on either the public trust or riparian rights, the Department must consider whether the proposal meets the criteria under the analysis in §30106.

Based on the foregoing, I conclude, as a Matter of Law, the regulation contemplated under Part 301 includes both navigable and non-navigable waters, and waters which may, or may not, be impressed with the public trust. Therefore, the Department has jurisdiction in this matter.

This case involves a bridge crossing of Carlton Creek at 92nd Avenue in Grant Township, Oceana County. The Petitioner applied for a permit to allow for the construction of a "Jack Arch" bridge with twin culverts to replace the existing clear-span bridge. Exhibit P-2. Although its consultant recommended a clear-span bridge, that was not applied for due to the increased cost of such a design. The Department denied the application for permit by letter dated August 16, 1996. Exhibit P-3.

Carlton Creek is a stream which is populated by rainbow trout, brown trout and brook trout. It is a tributary of the White River which flows into White Lake which ultimately discharges into Lake Michigan. As previously discussed, the White River system is a designated Natural River system. Mr. Calvin Ackley testified he made actual measurements of the creek and that the width varied between twenty and thirty five feet, with a depth varying between two-tenths and seven-tenths of a foot. Mr. Michael Smith testified to an average depth of one foot. Mr. Gary Whelan stated the flow rate to be 10.40 cubic feet per second. The creek has a heavy overgrowth of brush and trees.

Various stream crossing alternatives were explored on the record. In addition to the twin culverts other alternatives were analyzed in terms cost, useful life, construction and installation methods, potential problems in operation and maintenance and expected impacts on the natural resource. Alternatives explored included a clear-span bridge, constructed of either concrete or timbers and a box culvert. These considerations will be discussed in order below.

The Petitioner's estimated cost, according to Mr. Smith, to install twin culverts pursuant to its application is $20,000. This includes the initial cost of material and installation. The total project cost, including installation, for an aluminum box culvert replacement would be approximately $33,000 according to Mr. Gerald Fulcher and Mr. Alex Sanchez. A treated timber clear-span bridge would cost approximately $37,000 according to Mr. Fulcher. Mr. Smith estimated that cost to be more in the neighborhood of $70,000. He further estimated a concrete clear-span to cost around $100,000.

Mr. Smith estimated the useful life of twin culverts as proposed by the Petitioner at 30 years. According to Mr. Fulcher a treated timber bridge would have a useful life of 50 years or more. A concrete clear span bridge would have a useful life of approximately 100 years.

There are two methods of installation: "in the wet" and "in the dry". Mr. Smalligan testified that the latter is preferred because it is less disruptive to the stream, because the stream is diverted around the construction site during the installation. This is the usual method utilized by the Michigan Department of Transportation according to Mr. Eustice. The Petitioner in its application proposed to install the culverts "in the wet" and would save about $10,000 by doing so. Exhibit S-10 demonstrates that the culvert installation proposed by the Petitioner would require some channel modification to minimize erosion. In addition, installation of the culverts "in the wet" would necessarily involve some disturbance of the stream bed.

A clear span bridge would require no excavation below the water line and would avoid any disturbance of the stream bottom according to the testimony of Messrs. Smalligan and Fulcher. This would also alleviate the potential for debris accumulation or perching. It would also negate the necessity of performing the installation "in the dry".

The existing bridge is a clear-span which is functioning well hydraulically in that none of it occupies the stream bed. Mr. Menerey testified that culverts can cause erosion, sedimentation and siltation. They also can perch as the culvert at the 144th Street crossing has done. There is also evidence of debris being trapped at the upstream end. Mr. Eustice testified that twin culverts are also more likely to collect ice.

Mr. Smith acknowledged that culvert systems require "reactionary maintenance" in occasional removal of debris and that he did not factor in the increased maintenance costs in his analysis.

Mr. Andrew Nuhfer is the research fisheries biologist in charge of the MDNR Hunt Creek Fisheries Research Station. He testified primarily from the Pere Marquette Watershed Crossing Inventory Report which involved a watershed similar in location and geology to the subject area here. That study classified erosion severity at bridges and at single, double and triple culverts. The study confirmed that erosion is more common with culverts than with bridges. In general, sedimentation has a negative impact on many species of fish. Culverts can also change channel configuration. In the opinion of Mr. Richard O'Neal, replacing the existing clear span crossing with culverts would constitute a degradation of stream conditions and flow.

Mr. Gary Whelan testified that culverts create stream conditions which, in many ways, are the antithesis of natural stream conditions. Culverts typically increase stream velocity and impair a fish's ability to sustain sufficient speed to proceed against the flow in order to traverse the area. Culverts typically also reduce the depth of a stream and remove variation in depth which can impair shelter areas for fish. Mr. O'Neal testified a clear-span bridge would not present these problems and that installation could be performed without necessarily removing the existing abutments.

It is the Department's position that to maintain the quality of the South Branch, the waters into which if flows, and the resources dependent upon it, the preferable option is to install a clear span structure.

These considerations must be reviewed under the language of MCL 324.30106 which provides:

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon the waters from which of into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This part does not modify the rights and responsibilities of any riparian owner to the use of his or her riparian water. A permit shall specify that a project completed in accordance with this part shall not cause unlawful pollution as defined by part 31.

As previously found, Carlton Creek is not impressed with the public trust. Furthermore, there is no contention that riparian rights will be effected. There is also no contention that there are any possible effects on agriculture, commerce and industry or wildlife, and I so find, as a Matter of Fact.

Aesthetics are a subjective consideration. The scenic impact of a bridge vis a vis a culvert is merely a matter of personal preference.

As stated, there is no issue as to the fact that the stream is not navigable. Therefore, the only impact on recreation would conceivably be fishing. Fishing and fisheries impacts are connatural and will be discussed simultaneously. The impact on local government is fiscal and is discussed below.

The Department's position is that a clear span bridge is preferable because it would have virtually no impact on the stream bed. According to the testimony of Mr. Bruce Menerey, Carlton Creek bends immediately upstream from the crossing at 92nd Avenue. The culverts, if installed would cause the flow to shift towards the outer culvert in that the inside culvert would collect sediment. As a result, the outer culvert would tend to erode and downcut. Lastly, the installation as proposed by the Petitioner involves placing the culverts 6 inches below the stream bed "in the wet", resulting in a substantial disruption of the stream bed.

Mr. Alex Sanchez testified that in his 13 years of experience in dealing with these structure, he has observed that twin culvert structures tend to cause problems with siltation and collection of debris, resulting in a reduced ability of water to pass through. According to Mr. Keith Eustice culverts also present a danger of perching. That is, the change in the flow can cause erosion under the culvert, or the culvert can rise resulting in exposure of the bottom above the stream bed. There is evidence of this depicted at the crossing of the South Branch of the Pentwater River at 144th Street. Exhibit P-18.

Sedimentation also degrades fish habitat. This was generally testified to by Mr. Thomas R. Walter of the U.S.D.A. Forest Service. More specifically, Mr. Andrew Nuhfer, head of the Hunt Creek Fisheries Research Station in Lewiston, testified that sedimentation negatively effects many fish species. Trout spawn in gravel, which if silted over results in a loss of reproduction capacity. Siltation after spawning can cover over nests causing suffocation and death of fry. Additionally, sedimentation can accelerate velocities, thus forcing fish to work harder to stay in position as well as filling in pools and other deep water areas. Covering gravel also tends to inhibit insect propagation which diminished food supply. Mr. Nuhfer also stated perching can impede fish passage.

Mr. Richard O'Neal is a fisheries biologist with the MDNR in Grand Rapids. He described Carlton Creek as having good fisheries value, dominated by brook trout and sculpin. Mr. O'Neal also testified that perching of the culverts can block fish movement. He pointed to the fact there are no Sculpin upstream of the Arthur Road crossing of Carlton Creek because the culvert there is perched. He did admit, however, that double culverts would be less prone to perching than single culverts. As to debris collection, Mr. Eustice admitted that can occur with any form of installation as well as in natural streams in the absence of any crossings.

Mr. Calvin Ackley, Oceana County Drain Commissioner, testified that in his official capacity he had no particular concerns with culverts. As a trout fisherman he testified that has caught trout in culverts.

The impact on local government is economic, in that the costs of the various alternatives vary widely from an estimated $100,000 for a concrete clear span to $20,000 for a double culvert. Obviously, the road commission and the townships, which testimony indicated would absorb 75% of the costs, are effected. The Department's preference of a clear-span bridge comes at a great cost to these local entities. By proposing twin culverts, the road commission commendably is attempting to save taxpayers money. The issue, in this Tribunal's view, is what cost should the citizenry incur to insure preservation of the stream. The testimony summarized above points out a number of perceived potential problems with the culverts, either double or single, vis a vis a bridge. While a clear span bridge is nonpareil in the sense of not involving the stream bed, is it worth the additional cost, even considering the longer useful life estimate of 100 years.

The evidence as to perceived problems with culverts is speculative and, for the most part, dependent on eventualities that may not necessarily occur. The record is devoid of any specific problem which would present itself as a certainty. Other such installations exist in the area, see Exhibits P-5, P-17 and P-18, and for the most part they appear to be functioning well. Mr. Menerey testified that the possible erosion or sedimentation problems could be alleviated by the installation of rip rap at the inflow and outflow of the culverts. As previously pointed out, twin culverts, in some respects, are preferable to single culverts. I find, as a Matter of Fact, that installation of twin culverts as proposed will not materially adversely effect fish and fisheries and will serve to facilitate the road commission's and township's fiscal responsibilities. The installation of rip rap and erosion control per the proposal would alleviate much of the Department's concerns and would not greatly increase the cost of the project. While the Department may prefer a clear span bridge, that does not mean other methods are not permittable as evidenced by its offer of a single arched pipe culvert as an alternative. Exhibit P-3.

In addition to the above analysis 1985 AACS, R 281.814 requires:

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

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

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

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

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

As previously found, Carlton Creek is not impressed with the public trust. The activity proposed in the application, as stated, constitutes a de minimis adverse effect on the environment, and the installation of rip rap mitigates those effects to the extent possible.

There is no evidence that the stream is a rare resource but only that it is a good or valuable trout stream. This Tribunal can take judicial notice that good or valuable trout streams abound in Michigan and that trout are not a rare or endangered species. Trout Unlimited v. City of White Cloud, 209 Mich App 452; 532 NW2d 192 (1995).

The impetus for replacing the bridge is the unsafe condition of the existing structure. That concern as well as fiscal concerns outweigh the potential for the potential for minimal degradation of the resource. As discussed above, the Department's proposal for the installation of a clear span is certainly feasible in the sense that it is possible, but it is not economically prudent.

1. I conclude, as a Matter of Law, Carlton Creek is a stream with definite banks, a bed and continual flow of water and is, therefore, an inland stream subject to regulation under Part 301 of NREPA.

2. I conclude, as a Matter of Law, the proposed activity affects the bottomlands of Carlton Creek because it will occur below the ordinary high water mark of the stream.

3. I conclude, as a Matter of Law, Carlton Creek is not a navigable body of water and is not impressed with the public trust and, therefore, the proposal will have no impact thereon.

4. There is neither a contention or proof on this record regarding any adverse impacts on riparian rights resulting from the proposed activity. Therefore, I conclude, as a Matter of Law, the proposed activity does not adversely affect the rights of riparians.

5. I conclude, as a Matter of Law, the proposal will not adversely affect the waters of Carlton Creek or the waters from which or into which it flows. MCL 324.30106: MSA 13A. 30106.

6. I conclude, as a Matter of Law, the proposal will have no adverse affect on recreation, fish or wildlife, aesthetics, local government, agriculture, commerce or industry. MCL 324.30106: MSA 13A. 30106.

7. I conclude, as a Matter of Law, in that there is a de minimis adverse environmental impact as a result of the proposed activity, feasible and prudent alternatives are not an issue. Proposal for Decision in the Petition of Harold Kreeger, File No. 90-9-409 as accepted by the Natural Resources Commission's Final Order dated February 10, 1994.

8. I conclude, as a Matter of Law, that Carlton Creek, as a tributary of the White River, a designated Natural River. As such it is subject to regulation under Part 315, Natural Rivers, of the NREPA.

9. I conclude, as a Matter of Law, the review of an application made under Part 301 for activity proposed to occur on a designated Natural River must consider any relevant facts that may arise as a result of such designation.

10. I conclude, as a Matter of Law, the administration of Part 305 is vested solely in the Michigan Department of Natural Resources and, consequently, the Michigan Department of Environmental Quality is lacks jurisdiction to rule on the merits of Part 305 issues.

It is proposed that a Final Order be entered which grants the Petitioner a permit allowing for the construction of a "Jack Arch" twin culvert bridge at the Crossing of Carlton Creek at 92nd Ave., with a provision that rip rap and adequate erosion control be incorporated consistent with the application for a permit and attachments entered on this record as Exhibit P-2.

Dated: January 29, 1999
Richard A. Patterson
Administrative Law Judge Quality

Petition of Oceana County Road Commission

File Nos. 96-09-0634 and 96-09-0355

P 1 Application for Permit, 96-9-634, Oceana County Road Commission (OCRC), signed by Michael L. Smith, dated 10/28/96.
P 2 Cover letter dated June 21, 1996 from Michael L. Smith, OCRC to the Land & Water Management (LWMD), Department of Environmental Quality (DEQ), Lansing, Michigan. Attachments: Application for Permit, 96-9-355, signed by M.L. Smith; Engr/Mgr, dated 06/21/96 and letter dated June 5, 1996 from William H. Wagner, Grant Township, Clerk, Oceana County to OCRC.
P 3 Letter dated August 16, 1996, from David A. Bastian, Supervisor, Transportation Review Unit, LWMD, DEQ to Mike Smith, P.E., OCRC.
P 4 Letter dated March 6, 1997, from David A. Bastian, Supervisor, Transportation Review Unit, LWMD, DEQ to Mike Smith, P.E., OCRC.
P 5 Oceana County Road Map, Hart, Michigan 49420, map with nine colored photographs, labeled with identifiable descriptions.
P 6 Colored photograph, 4" x 6", labeled #6b Carlton.
P 7 Colored photograph, 4" x 6", labeled #6a Carlton.
P 14 Project Review Report, 92nd Ave. over Carlton Creek, name of evaluator: D. Bastian/A. Sanchez and dated 05/21/92.
P 16 Resume of James E. Smalligan, P.E., FRC&H.
P 20 Photocopy of handwritten notes, yellow highlighting, on the backside of computer sheet.
P 21 Project Review Report signed by H. Vickers, 06/96, yellow highlighting on both sides of report.
P 22 Project Review Report signed by H. Vickers, 09/05/96, yellow highlighting on both sides of report.
P 23 Photocopy of memorandum to THR from Holly, dated 12/26/96, Subject: 136th over SB Pentwater, Our Job No.: 96-9-634.
P 25 Handwritten letter from Alex to Dave, dated 03/28/96.

Respondent

S 8 Three paged letter dated May 30, 1996 from Claire E. Schwartz, P.E., Fishbeck, Thompson, Carr & Huber, Inc. (FT&H), engineers, scientists, architects, to Mike Smith, OCRC. Four pages of attachments.
S 9 Coreboard, plan, File 96-09-0355, 92nd Road @ Carlton Creek, Section 27, T.13N., R.17W, Oceana County, Note: Existing and proposed conditions were reproduced from the plan accompanying the application submitted by Oceana County.
S 10 Coreboard, plan, File 96-09-0634, 136th Ave. @ South Br. Pentwater River, Sec. 9/10, T.15N., R.16W, Oceana County, Note: Existing and proposed conditions were reproduced from the plan accompanying the application submitted by Oceana County.
S 17 Coreboard, labeled Carlton Creek, map with eight colored photographs (numbered) with corresponding numbers on the map.
S 18 Coreboard, labeled South Branch Pentwater River, map with seven colored photographs (numbered) with corresponding numbers on the map.
S 19 Resume of Holly Vickers, DEQ, LWMD, Transportation and Flood Hazard Management Unit.
S 24 Resume of Alexander Sanchez, MDEQ, LWMD, Transportation and Flood Hazard Management Unit.
S 26 Resume of Gerald W. Fulcher, Jr.
S 29 Resume of Keith D. Eustice.
S 30 Resume of Thomas R. Walter.
S 31 Vitae, Andrew J. Nuhfer.
S 32 Curriculum Vitae for Richard P. O'Neal.
S 34 Resume of Bruce E. Menerey, P.E.
S 35 Michigan Department of Environmental Quality, Interoffice Communication dated July 9, 1996 to Alex Sanchez from Keith D. Eustice.

Respondent

S 36 Copy of a memorandum dated August 25, 1997 to Jerry Fulcher from Bruce Menerey.
S 37 Michigan Department of Environmental Quality, Interoffice Communication dated May 21, 1997 to Keith Eustice from Bruce Menerey.
S 39 Resume of Gary Edward Whelan, Michigan Department of Natural Resources.
S 40 A Guide to Public Rights on Michigan Waters, December 1993, Law Enforcement Division Report No. 9, Michigan Department of Natural Resources.