SUBJECT: Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended; Part 303, Wetland Protection

Petition of Lawrence J. Rucker
File No. 98-05-0395
___________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated July 20, 1999. In a letter dated July 20, 1999, the Office of Administrative Hearings gave the Parties until August 10, 1999, to file written Exceptions to the Proposal for Decision. Mr. Rucker filed his Exceptions on August 9, 1999, while the Department of Environmental Quality did not file Exceptions. Neither Party requested Oral Argument before this Tribunal.

The matter is 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 this case consideration has been given to the Proposal For Decision, the written Exceptions, exhibits, pleadings and arguments.

The activity proposed is to place fill in a wetland to facilitate the construction of an access road, building site, septic system and lakefront access. At the commencement of the hearing the Parties apparently reached an agreement regarding the access road, building site and septic system. Pursuant to this agreement, the only issue presented at the hearing, and thus the only issue considered in the Proposal for Decision (PFD), involved the means of access to the lakefront.

Mr. Rucker now contends the agreement reached at the start of the hearing was contingent upon resolution of the means of access to the lakefront, and due to the Administrative Law Judge's ruling on the issue the agreement is now null and void. Given this contention was raised in his Exceptions, and is contrary to the agreement placed on the record at the start of the hearing, the record is devoid of any facts regarding the location of the access road, building site and septic system. Therefore, this Final Determination and Order cannot decide these issues. However, there is no indication the Department regards the agreement as ineffective, and Mr. Rucker may, at his discretion, be issued a permit consistent with the terms set forth on page 2 of the PFD. As to the substantive issues raised in his Exceptions, Mr. Rucker contends the record is devoid of any evidence which proves the subject parcel contains a regulated wetland. However, during the pre-hearing conference on June 7, 1999, the Parties entered into a number of factual stipulations, with the ones relevant to this issue being: the activity proposed in the permit application is a regulated activity; a permit is necessary; and the Department has jurisdiction. Given these stipulations, which are binding on this Tribunal as a matter of law, it was unnecessary to develop a factual record at the hearing in order to formulate a decision in the PFD on whether the proposed activity is regulated under Part 303. Thus the finding of fact in the PFD that the subject property contains a regulated wetland and the proposed activity is regulated under Part 303 will not be disturbed.

Mr. Rucker further asserts the continued existence of the wetland constitutes a health and safety risk to his family and the public. In enacting Part 303 the Legislature of this State has determined that wetlands are a valuable resource and should be protected within the framework of the Part 303 permitting criteria. MCL 324.30302. In considering the relative benefits and detriments inherent in a wetland, the Legislature determined the benefits are such that certain activities proposed to occur in a wetland must be subject to reasonable regulation. In administering this statute the Department affords deference to those findings. Thus Mr. Rucker's argument that he should be allowed to fill this wetland, based on what he perceives as a threat to public safety, must be rejected.

Mr. Rucker contends the construction of an elevated walkway or a boardwalk in the wetland, in order to gain access to the lakefront, is not a feasible and prudent alternative to placing fill in this wetland. Part 303 mandates that a wetland should be preserved unless an applicant shows a feasible and prudent alternative to filling it does not exist. MCL 324.30311(4)(b). Obviously a boardwalk is feasible in that it can be constructed. As to the prudence of a boardwalk, the record reflects one could be, and often times is, designed in such a way as to facilitate the use of a golf cart, which Mr. Rucker notes he and his wife are required to utilize in order to traverse the property. Mr. Rucker has not shown a boardwalk is cost prohibitive, or from an economic sense it is unreasonable.

The Department has consistently permitted boardwalks to access lakefront as a feasible and prudent alternative to filling a wetland. See Petition of James Kowall, File No. 97-5-153; Petition of Michael Hawthorne, File No. 96-12-0101; Petition of David L. Palmer, File No. 88-5-381W. The record in this matter does not support Mr. Rucker's contention that a boardwalk is not a feasible and prudent alternative to placing fill in this wetland.

The Director of the Department of Environmental Quality ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision including the Findings of Fact and Conclusions of Law. Based upon those Findings of Fact and Conclusions of Law, it is DETERMINED the application for a permit of Lawrence J. Rucker be DENIED under the permitting criteria of Part 303.

NOW, THEREFORE, IT IS ORDERED:

1. The Proposal for Decision of July 20, 1999, is ADOPTED and INCORPORATED by reference into this Final Order.

2. The application for a permit submitted by Lawrence J. Rucker under File No. 98-05-0395 is DENIED.

3. The Petitioner is entitled to a permit for a boardwalk through the subject wetland to allow for access to the lakefront.

4. The agreement of the Parties regarding the remainder of the project outlined on page 2 of the Proposal for Decision can be permitted, at the Petitioner's election, provided all appropriate information is provided to the Department.

Dated: September 7, 1999
Russell J. Harding, Director
Department of Environmental Quality

SUBJECT: Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended; Part 303, Wetland Protection

Petition of Lawrence J. Rucker

File No. 98-05-0395

Dated: July 20, 1999
Richard A. Patterson
Administrative Law Judge

This contested case involves the denial by the Department of Environmental Quality (Department) of an application for a permit filed by Lawrence J. Rucker, PhD. The application contemplated the placement of fill in a wetland pursuant to the provisions of Part 303 of Natural Resources and Environmental Protection Act (NREPA). MCL 323.30301 et seq.; MSA 24A.30301, et seq., and the administrative rules.

The hearing in this matter was requested by Dr. Rucker under the provisions of Part 303 of the NREPA. MCL 323.30319(2); MSA 24A.30319(2). The hearing was conducted pursuant to the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560 (101) et seq.

Pursuant to the Property Rights Preservation Act, 1996 PA 101, MCL 24.421 et seq.; MSA 3.560(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.

Dr. Lawrence J. Rucker (Petitioner) owns a large parcel fronting on Carp Lake, also known as Paradise Lake, in Carp Lake Township, Emmet County, Michigan. Carp Lake is in both Emmet and Cheboygan Counties. The Petitioner appeared in propria persona and testified on his own behalf.

The professional staff of the Department is charged with the day-to-day implementation of Part 303. The Department is represented by Mr. Frederick Gottschalk, Contested Case Coordinator, Land and Water Management Division (LWMD). The Department presented Mr. Bradford Wilkins, Land and Water Management Division, Gaylord District Office as its only witness.

During the contested case hearing on June 21, 1999, the Department introduced twelve (12) exhibits, while the Petitioner admitted none. A list and description of these exhibits are included at the end of this Proposal for Decision.

During the pre-hearing conference on June 7, 1999, the Parties entered into the following stipulations:

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

2) The processing of the application was procedurally correct.

3) The proposed activity is regulated and a permit in necessary.

4) That Exhibit 13 is an accurate depiction of the Petitioner's land.

Stipulations of law are not binding on a court, In re Finlay Estate, 430 Mich 590, 595; 424 NW2d 272 (1988), stipulations of fact are sacrosanct. Dana Corporation v Employment Security Commission, 371 Mich 107, 110 (1963). Furthermore, stipulations entered into by the parties shall be used as evidence at the hearing and are binding. MCL 24.278; MSA 3.560(178). The foregoing stipulations are factual, I find them to be legally correct, and I adopt them as findings.

At the commencement of the hearing, the parties agreed that a permit could be issued allowing the following:

A home with a footprint 24 feet by 40 feet and a two car garage 30 feet by 24 feet in line with the home on the "ridge" depicted on Exhibit 13. In addition Petitioner will be allowed to fill on the lakeward side of the home 10 feet out from the foundation. The home and garage will be placed closest to the allowable side set back on the west property line. Petitioner will obtain a survey at his cost to determine that line. Lastly, Petitioner will be allowed to fill an area to accommodate a driveway to the home and garage southerly of the buildings 16 feet wide and 250 feet long with a turn out area.

Given this agreement, the sole issue before this Tribunal is the means of access from the building site the lake shore. The Petitioner has applied to fill an area of the wetland 250 feet in length and 10 feet wide (2,500 square feet) to accomplish this purpose. The Department is willing to allow an elevated boardwalk no more than 6 feet wide.

The subject parcel has more than 200 feet of frontage on Carp Lake. The property is rectangular in shape and has been measured at 787 feet on its westerly and easterly borders. Exhibit 13. The Petitioner desires to fill for a drive from the rear or southerly portion of the property, to build a home and garage, and to fill to gain access to the waterfront to the north of the homesite. The entire area between the proposed homesite and the shore is wetland. He also desires, ultimately, to split the property and sell off the easterly portion.

The first issue which must be addressed is whether the subject property is a wetland as defined by Part 303, and if so, whether a permit is required for the proposed activity. The Party's stipulations address these two issues. Based upon the factual stipulations, I find, as a Matter of Fact, the activity is proposed to take place in a regulated wetland and a permit is required for the proposed activity.

Section 30304 prohibits the deposit or placing of fill in a regulated wetland without the benefit of a permit from the Department. MCL 324.30304. To issue a permit for the fill requested by the Petitioner, the criteria of § 30311(1) must be considered. It states:

(1) A permit for an activity listed in section 30304 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.

MCL 324.30311(1).

Section 30311(2) provides the criteria for determining whether the project is in the public interest. MCL 324.30311(2).

(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.

The Petitioner's need for fill is purely private, in that it is intended to provide access to the shore of Carp Lake. Mr. Wilkins acknowledged the private need for access, but refuted any need to provide access by placing fill in the wetland. Mr. Wilkins testified there are methods available other than placing fill to accomplish the private need for access. Past lumbering activities apparently created a rough terrain which is difficult or impossible to traverse on foot. I find, as a Matter of Fact, the private need for access to Carp Lake is great. The issue of the methodology of providing the access is discussed in detail under feasible and prudent alternatives.

The public need for the proposed activity is non-existent. The property is privately owned and there is no public use thereon. I find, therefore, as a Matter of Fact, there is no public need for the proposed activity.

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

The Petitioner must utilize the wetland to gain lake access and the entire parcel is wetland. Therefore, there can be no alternative location. Thus the issue in this case is one of alternative methods to accomplish the expected benefits of access to the lake.

Mr. Wilkins testified that an elevated walkway or boardwalk is a feasible and prudent alternative method to placing fill in this wetland. In his opinion, a boardwalk would have minimal impacts on the wetland functions, while placing fill in this wetland would cause a significant impact to the aquatic environment. Mr. Wilkins testified that, in addition to observing areas of standing water approximately 12 inches deep (see also Exhibits 7 and 8), he dug holes and determined there is approximately 6 inches of muck or peat over a sand substrate. He observed that the area was wetter than he usually encounters in wetlands and there was more peat than usual. He opined that fill would cover and displace the water and peaty soil which would adversely affect turbidity, flood storage capacity, water circulation, hydraulic absorption and biological and chemical oxidation. In addition, it would displace nesting and feeding habitat for water fowl, amphibians and insects.

Dr. Rucker does not agree that a boardwalk is a feasible and prudent alternative to the proposed fill. He testified that the he considers the proposal "anarchy or tyranny" and characterized it as contrary to environmental concerns. He argues that constructing a boardwalk is not feasible for a myriad of reasons. He testified that he suffers from hypertension and that his medication causes sever vertigo. In addition, his wife suffers from an undisclosed disability. He is afraid of an elevated boardwalk because a fall from that could cause personal injury, especially if he fell across the width of a 6 foot walkway in that he is 6 feet 6 inches tall. To gain safe access he and his wife must utilize a golf cart and railings would be necessary. He is of the opinion that a wooden structure would not safely hold a 1200 pound golf cart plus his weight of 250 pounds. He is also concerned that his grandchildren and pets could be harmed by falling off of the structure.

Dr. Rucker also testified that maintaining the terrain in its present state with ridges, depressions and standing water poses health risks. First, the propagation of mosquitos can be eliminated by filling. This is of particular concern to him due to the risk of importing the anopheles mosquito, which are indigenous to his home state of Texas, in the bilge of his watercraft. This could result in recombinant cross-over of genetic material to the locally indigenous species. The filling, he states, will also eliminate a "safe haven" for deer mice and field mice which are carriers of the Hanto-Virus which has been responsible for many deaths in the United States. He testified these concerns are shared by the United States Department of Health and the World Health Organization.

Dr. Rucker contends he would enhance the environment by planting trees which will, in his opinion, lesson the green house effect. Lastly, he testified to the existence of a 6 foot high ice ridge near the shoreline. While he was not specific as to its import, he apparently considers it as having a damming effect which prevents migration of water from the wetland to the lake. Mr. Wilkins testified that these ridges characteristically are comprised of material through which water can migrate. He also testified that he did not observe anything of the magnitude of 6 feet, but admitted he did not walk to that area. Exhibit 7, taken from south to north toward the lake, while not definitive, does not appear to reveal the ridge as described by Dr. Rucker. Regardless, as a practical matter its existence would have to be factored into the configuration of the access facility whether that was accomplished by filling or a boardwalk. Its existence, therefore, has no impact on the analysis.

Dr. Rucker also testified a boardwalk is not prudent because of the cost of construction. He stated that a metal boardwalk sufficient to accomplish his purpose would cost approximately $40,000.00. As stated previously, he is of the opinion a wooden boardwalk would be insufficient. He did not furnish a written estimate, however, nor did he provide an estimate for a wooden structure.

Mr. Wilkins admitted that he is neither an engineer or an expert in the design and construction of boardwalks. He testified, however, in his experience wooden boardwalks are commonly permitted as feasible and prudent alternatives to filling wetlands. Specifically, he determined the soils he found would support such a structure. He also testified that wooden structures are common on golf courses which accommodate carts and that state parks commonly have wooden walkways that are fully accessible to handicappers.

Based on the above testimony and argument, I find, as a Matter of Fact, it is both feasible and prudent to construct a boardwalk across this wetland. It is feasible in the sense it can be accomplished and prudent because it will provide the access needed by Dr. Rucker while at the same time preserving the wetland functions.

(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 proposed activity would result in filling an area of wetland over 250 feet long and 10 feet wide, which is an area of some 2,500 square feet. Mr. Wilkins testified the proposed project poses potential adverse impacts upon the water circulation, water retention and flood control, wildlife and water quality of the area. See also Exhibit 3 and Exhibit 14. Placing fill in this area would result in a permanent loss of wetland and disrupt water circulation and flow patterns in the general area according to Mr. Wilkins. These particular considerations were not rebutted by Dr. Rucker.

Based on the foregoing, I find as a Matter of Fact, the proposal would cause a permanent disruption to the functions of this wetland. I further find, as a Matter of Fact, the potential physical and health hazards expressed by Dr. Rucker are speculative and unrelated to Part 303 criteria.

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

Mr. Wilkins testified that there is substantial potential for similar projects being applied for in the immediate area to the east and west. Both those adjacent parcels are now unimproved and will need lake access if and when they are developed. There is also, according to Mr. Wilkins, a proposal pending to develop a 24 lot subdivision within one and one half miles of the Rucker property. In addition, Dr. Rucker intends to sell off the east portion of this property which will also ultimately need access. There is concern, therefore, as to the precedent which will be established by this project. Dr. Rucker's response was that he should be able do what he wants with his property, but this ignores the cumulative impact which must be addressed under Part 303.

I find, therefore, as a Matter of Fact, there is significant potential for cumulative impacts of this proposed fill with those existing or anticipated in the future.

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

The proposed activity will not threaten historic or cultural values or fish according to Mr. Wilkins. As previously discussed, Dr. Rucker is of the opinion the alternative boardwalk poses a threat to the public health because of the perceived hazards. These concerns are dispelled by the expert testimony and the fact that it is not realistic to expect the fill will alleviate the presence of mice and the ubiquitous mosquito. The scenic value is subjective, in that, whether a boardwalk or a filled walkway is more scenic is in the eyes of the beholder. The impact upon the recreational value is positive in that by providing access to the lake recreational opportunities are enhanced. However, this value is equally enhanced by either proposal. The greatest impact of the proposed project is the potential effect to the ecological benefits this wetland provides.

I find, as a Matter of Fact, that the proposed fill activity poses adverse impacts to the benefits this wetland provides. Conversely, I find, as a Matter of Fact, a boardwalk would preserve the benefits of access while having very little impact, if any, on this wetland and its attendant functions.

(f) The size of the wetland being considered.

From the dimensions on Exhibit 13, which the parties have stipulated is accurate, it would appear the wetlands between the building site and the lake are approximately 50,000 square feet of which 2,500 would be filled.

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

Mr. Wilkins testified that the wetlands in the area are less than ten acres.

(h) Proximity to any waterway.

The proposed activity is adjacent to Carp Lake.

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

Mr. Wilkins testified there is limited public economic value associated with the proposed land change because the property is privately owned. He is of the opinion that the proposed land change would add some private economic value to the Petitioner and, consequently, slightly increase the local tax base. However, this economic value of access will occur under either proposal.

After considering each of the above criteria, § 30311(2) requires a balancing of the benefits against the reasonably foreseeable detriments of the activity to determine if the activity is in the public interest. In balancing these criteria, I find as a Matter of Fact, the proposed project is not in the public interest.

Section 30311(1) also requires a determination as to whether the permit is necessary to realize the benefits derived from the activity. The benefit derived from the proposed activity is access to the Carp Lake. I find, as a Matter of Fact, the permit as requested is not necessary to realize the benefits derived from the proposed activity in that the benefit, access to the lake front, can be equally met with the boardwalk alternative. The third determination required by this section is whether the activity is otherwise lawful. There is no evidence the proposed activity is unlawful, and Mr. Wilkins testified to this affect, and I so find. Section 30311(3) directs:

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 finding of necessity made by other state agencies.

Section 30311(4) directs:

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 30302 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.

Based on the previous Findings of Fact, an unacceptable disruption to the aquatic resources would result from the proposed activity. I also find, as a Matter of Fact, an unacceptable disruption to these resources would not result from the installation of a boardwalk. As there is no other way for the Petitioner to access the lake front, the proposed activity is primarily dependent on being located in the wetland. I find, as a Matter of Fact, the construction of a boardwalk through the wetland to facilitate access to the lake is a feasible and prudent alternative method to the proposed activity.

Based on the Stipulations of the Parties and the Findings of Fact, I conclude as a Matter of Law:

1. The portion of the subject property involved is a regulated wetland and a permit is required for the proposed activity. MCL 324.30304.

2. The proposed activity is not in the public interest.

3. There is a feasible and prudent alternative method to the proposed activity. MCL 324.30311(2)(b) and MCL 324.30311(4)(b).

4. The proposed activity will cause an unacceptable disruption to aquatic resources. MCL 324.30311(4).

5. The proposed project is dependent on being located in the wetland. MCL 324.30311(4).

Based on the Findings of Fact and Conclusions of Law, it is proposed the Petitioner's application to place fill in the wetland be DENIED.

Access from the upland portion of the property to the shore of Carp Lake could be accomplished by a boardwalk or elevated walkway. The agreement of the parties regarding the remainder of the project should be incorporated in the permit.

Dated: July 20, 1999
Richard A. Patterson
Administrative Law Judge