IN RE: WETLANDS PROTECTION ACT APPEAL
OF PHILLIPS, MONVILLE, BERLEK AND ANDERSON

File Nos. 86-4-62, 86-4-61, 85-4-201 and 86-4-265

The Natural Resources Commission, having considered the Proposal for Decision dated October 20, 1988, 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 be affirmed with the exception that the finding "mitigation was inappropriate" be rejected. (See Proposal for Decision, File Nos. 86-4-62, 86-4-61, 85-4-201 and 86-4-265, dated October 20, 1988, attached hereto.)

12/17/88 /S/
Date
David D. Olson, Chairman
Natural Resources Commission

IN RE: Goemaere-Anderson Wetland Protection Act Appeal of Phillips, Monville, Berlek and Anderson

Cause Nos. 86-4-62, 86-4-61, 85-4-201, 86-4-265.

October 20, 1988
William C. Fulkerson
Administrative Law Judge

This matter is a contested case concerning the application of Ronald and Joan Phillips, John and Linda Monville, Frank and Barbara Berlek, Matthew and Billie Anderson for a Wetland Permit.

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

The professional staff of the Department of Natural Resources is charged with the day-to-day implementation of the Goemaere-Anderson Wetland Protection Act. Ronald Phillips, et al, requested a hearing pursuant to the act.

Ronald and Joan Phillips, John and Linda Monville, Frank and Barbara Berlek, Matthew and Billie Anderson are each married couples owning adjoining lots. These lots are all 100 feet wide and approximately 150 feet deep. They are located in the township of Moran, Mackinac County, Michigan. The four lots all front Lake Michigan and are undeveloped. One couple purchased their lot in 1984, the remainder bought in 1985. Three of the parties are purchasing on land contract; one of the parties has fee ownership. All of the lands were purchased from the same seller. The lots are all contiguous containing 400 feet of frontage along Lake Michigan. The lots were purchased with the intent of building recreational homes. All of the parties have applied to place various amounts of fill on their lot, which is necessary for construction of a dwelling, and were either denied a permit under the Wetlands Act or offered a mitigation plan, which they have not accepted. The applicants are entitled to separate hearings. However, it was agreed that all would be tried together, as one, for two reasons. First, all parties are represented by the same attorney, which saves them the cost of a separate hearing for each individual. Second, the lands are contiguous and virtually identical, therefore, the field evaluation of the lands would be the same in each instance. Based on the agreement of the parties, we went forth with a single hearing dealing with all four applications, and only a single opinion will be issued.

I find that the subject parcels are a forested wetland. The primary trees present on the lots are northern white cedar, black spruce, and balsam fir. The site also has a wide diversity of wetland or wetland tolerant plants and shrubs. The plants all have shallow root zones, generally under seven inches. It was testified that 60% or more of the plants present on this land are found in wetlands, therefore, a predominance of wetland vegetation was present. In August, following the drought of the summer, inspection of the property showed standing water in a number of places and groundwater within 15 inches of the surface at the highest points on the lots. All four lots had some standing water ranging in depth to 18 inches. Last spring, the lots had considerable standing water on them.

The property was described as forested and sloping toward Lake Michigan, the forested portion extending toward the wave zone of Lake Michigan. The property displays a diverse habitat throughout the growing season, and is of primary value to non-game wildlife, displaying occasional use by waterfowl seeking cover during storms.

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 Lake Michigan, in the area of the subject property, approximately 50% of the land is developed for cottages. The majority of the land remaining is wetlands, similar to the applicants land. There is some undeveloped upland. If one wished to live in the area, they probably could purchase an existing home or find a lot that was not wetland.

(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 would substantially reduce the existing wetlands. The uses made of the area by the general public are probably minimal. The current private use of the property in an undeveloped state is probably minimal also. The filling would permanently change a diverse wetland habitat.

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

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

It appears that the development pressure generally in the area is not significant. However, the pressure to develop recreational building sites along the Lake Michigan shoreline appears to be significant. The record shows that a good deal of the upland has been developed and a portion of the wetland has been developed also. Most of the undeveloped shoreland is wetland in character. Therefore, if further development is to occur, then that development will result in the loss of wetlands.

(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. The forested character of the land would be changed to include the proposed dwellings. The ecological impact will be the filling of a diverse forested wetland with a yard and buildings. The recreational value would be increased in that someone would be resident on the property and able to enjoy being in proximity to Lake Michigan. There could be an impact on public health. The testimony demonstrated that the high water table in the area makes it very difficult to place on-site septic fields that will function well. The area is known to have problems with septic fields; and specifically, the owner of the property adjoining these four lots has experienced repeated failure of their septic system. The proposed development will not affect fish. The primary wildlife value is for non-game species. It is difficult to measure how much they might be affected by the fill and construction of a residence. An additional wildlife value for the property is as a shelter from storms on Lake Michigan for waterfowl. This, too, depends upon how sensitive these animals are to the human occupation.

(f) The size of the wetland being considered.

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

The four lots are continuous forested wetland, as is approximately one-half of the land in the immediate area. Of that, a portion has been filled and developed.

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

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

There is a considerable amount of wetland in the area. The development pressure is all on the wetlands adjoining the Lake Michigan shoreline.

(h) Proximity to any waterway.

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

The land fronts Lake Michigan.

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

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

The proposed construction of residences would provide some construction work, would add to the local tax base, and would create a need for goods and services by those persons who would occupy the lands.

(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.

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

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

The Department found that the primary effect of the proposed development was a cumulative one, that is, the loss of an additional 400 feet of forested wetland fronting Lake Michigan. The Department offered to issue a modified permit if mitigation could be made for the wetland loss. Specifically, the Department offered to allow the proposed fills if an adjacent area of approximately the same amount of frontage were subjected to a conservation easement and a pond were dug to provide shelter for waterfowl. Each of the Petitioners rejected the plan for mitigation. To reach the point of determining that mitigation was appropriate, the Department must have determined that an unacceptable disruption to the aquatic resources would not occur. I disagree. The record clearly shows that the property is a high-quality forested wetland, with a wide diversity of plant species.

1. The Petitioners are applicants for permits 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.

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

Dated: 10/20/88 /S/
William C. Fulkerson
Administrative Law Judge