IN RE: Inland Lakes & Streams Act

Appeal of James A. Surles
File No. 89-7-194

The Natural Resources Commission, having considered the Proposal for Decision dated May 18, 1990, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the matter, hereby adopts and incorporates the finding of facts and conclusions of law of the Proposal for Decision and finds that:

The Department approved this permit application in modified form, permitting the bulkhead for 81 feet along Lots 29 and 30. That decision is affirmed. It denied the request for the bulkhead for the remaining 40 feet of Lot 31. That decision is modified to include approval to install a riprap structure on Lot 31 as part of the permit.

Insofar as the permit was treated as a denial of a permit to fill a wetland the Department's decision is affirmed.

_____________________ ____________________________

Date Thomas J. Anderson, Chairman
Natural Resources Commission

In re: Inland Lakes and Streams Act Appeal of James A. Surles
(Cause No. 89-7-194)

Proposal for Decision

General Background and Facts

The Petitioner in this case, Mr. James A. Surles, also referred to as Applicant, filed an application for permit under the Inland Lakes and Streams Act of 1972 (1972 P.A. 346; MCLA 281.951, as amended), seeking permission to install a bulkhead on the shoreline of Wixom Lake in Gladwin County in order to protect three lots he owns from erosion. The permit was granted in modified form on July 13, 1989. Essentially, the permit authorized the construction of a steel bulkhead along the shoreline of two of the lots, but not along the third lot.

The issuance of the permit as it relates to the two lots (Lots 29 and 30, as identified in the exhibits) is not at issue. The basis for the denial of permission to install the bulkhead on the third lot (Lot 31) was that a solid bulkhead would interfere with the surface water flow into and out of a wetland area located on the third lot.

A second issue was incorporated into the denial and this hearing because the plans for the property which were submitted indicated that construction would take place on Lot 31, which the Department determined to be a wetland. The Department decided to address the wetland issue, converting this into an application to fill in a wetland matter as well as an Inland Lakes matter. The parties agreed at the hearing to incorporate this wetland issue.

At the hearing, the Petitioner was represented by Mr. David H. Frost. Mr. Surles presented one witness and offered 12 exhibits. The owner, Mr. James Surles, resides in North Carolina, and was prevented from attending the hearing by cost and the infirmities of age. The Department was represented by one of its staff, Mr. Richard J. Sikkenga, a regional supervisor in the Land and Water Management Division. The Department offered one witness and submitted 2 exhibits. The permit application and the modified permit issued in this case were entered as joint exhibits.

Findings of Fact --The witness f or the Petitioner was his son, Mr. Jerry K. Surles; that of the Department was a district supervisor in the Land and Water Management Division, Mr. Fred Gottschalk.

The testimony of both witnesses established that there was no erosion along the shoreline of Lot 31. The Petitioner's exhibits 1-3, engineering surveys of the property, also show that the lot has suffered no erosion.

Mr. Gottschalk testified that the flow of water on Lot 31 would not undermine ii bulkhead installed on Lots 29 and 30, and this testimony is unrebutted. Mr. Gottschalk testified that the permit would not be issued for Lot 31 because there was no need to protect the shoreline from erosion, but did offer that a protection device constructed of riprap would be permitted, since it would permit the flow of surface water.

While there was some contention that the lot is not a wetlands the Petitioner offered no competent evidence that the land was upland. Mr. Gottschalk, a qualified specialist on wetlands, identified Lot 31 as being entirely a functioning wetlands. He visited the site on two occasions and in fact injected the wetland issue. On his first visit, he identified three common wetland plants and one less common wetland plant. His Project Review Report (Department Exhibit 1) identifies the land as a wetland.

The lot is approximately 6400 square feet (160 x 40). Mr. Gottschalk opined that the entire surrounding area was probably at one time wetland and that the nearby lots and areas were probably all filled. In addition, according to Mr. Surles, the road was recently raised and the ditch and culvert system improved, resulting in increased run-off onto this lot. However, Mr. Gottschalk testified that this would be a wetland even without the surface water. The photographic evidence submitted by both sides confirms that this is wetland.

The Department's witness also testified that the proposed steel bulkhead would interfere with the surface water flow, which could indeed go both into and from the adjacent lake, depending on water level and shoreline conditions.

Mr. Surles testified that the owner intended to build a 36 x 50 foot building on the site, approximately half of which would extend onto Lot 31. The original cottage, which was quite small (approximately 1100 square feet), was destroyed by arson fire two years ago, and the insurance company is pressuring the owner to rebuild under the replacement provision of the insurance policy.

The owner originally owned lots 29 and 30, on which all structures were built, and purchased the third lot with the idea of someday building a structure on it.

Mr. Surles testified that the owner had no knowledge that this was a wetland; the Department's testimony establishes that the land has never been formally designated as wetland.

Mr. Surles testified that it would be difficult to build a structure of the proposed size on Lots 29 and 30. Currently, a garage, septic system, lift station, and septic field limit the location of the proposed structure. The configuration of land did not lend itself to filling those lots and building closer to the lake. The imposition of zoning setback restrictions further constrains the flexibility of placing a structure on this property.

Mr. Surles said that he would accept alternatives to his proposal to fill the wetland, including limiting the fill to only a portion sufficient for construction (which is referred to as "narrowing" the wetland), to provide a culvert so that the surface water could reach the lake, or to move the drainage structure (basically a ditch) to a ditch on the other side of this property along the line between Lots 29 and 28.

The Department's witness testified that he did not believe that these alternatives were feasible. The witness also testified that fill of all portions of Lots 29 and 30 did not require a permit.

Conclusions of Law -This permit was denied under the Inland Lakes and Streams Act. According to the rules promulgated under that act, this application was treated as proposing a minor project. Under Rule 281.816(l)(c) the Department may issue a permit for a bulkhead if: "(i) the proposed structure fulfills an identifiable need for erosion protection . . . " and if "(v) the structure or any associated fill will not be placed in a wetland area or placed in any manner that impairs surface water flow into or out of any wetland area."

The Petitioner bears the burden of proof here, but the Department has clearly established that the criteria of this rule are not met.

First, the facts establish that there is no need for erosion control for this lot, since there has been no erosion on the lot. Nor was there any testimony that erosion was likely to occur. It has not been established that the bulkhead must be extended onto Lot 31 in order to protect Lots 29 and 30.

Second, the bulkhead will be placed in a wetland area. The testimony establishes that the entirety of Lot 31 is a wetland and that substantial fill will be necessary on the lot in order to allow construction of the structure contemplated.

Third, both the proposed bulkhead and the fill necessary for construction would impair the flow of surface water into or out of the wetland, according to the uncontroverted testimony.

Fourth, the alternatives proposed by Mr. Surles are not supported by any documentation. They will result in the destruction of wetland. In order to accommodate the implied application for permit to fill in a wetland, the Department reviewed the implications under the Goemaere-Anderson Wetland Protection Act (1979 P.A 203; MCLA 281.701). It found the application and the proposed alternatives wanting for reasons consistent with that act. I concur.

Fifth, the Department believes that there is a feasible alternative to this construction. Under Rule 4 of the Inland Lakes and Streams Act, and according to the Wetland Protection Act, the Applicant must show that there is no feasible and prudent alternative. The testimony of Mr. Surles is insufficient to establish that there is no feasible alternative to building the proposed structure on Lot 31.

I conclude that this permit was properly denied under the Inland Lakes and Streams and Wetland Protection acts.

The Department approved this permit application in modified form, permitting the bulkhead for 81 feet along Lots 29 and 30. That decision is affirmed. It denied the request for the bulkhead for the remaining 40 feet of Lot 31. In light of the testimony, I modify that decision to include approval to install a riprap structure on Lot 31 as part of the permit.

Insofar as the permit was treated as a denial of a permit to fill in a wetland, I affirm the Department's decision.

However, this decision should be treated as without prejudice to further submissions of permit applications by Mr. Surles. This record cannot justify the placement of fill in the wetland, the shifting of the drainage system, or the possibility of mitigation. It may be that suitable studies or plans could be submitted that would allow the fill. It is also possible that Mr. Surles could better demonstrate the lack of a feasible construction alternative on Lots 29 and 30, but again this record does not do so. Finally, the record does not provide sufficient information to sustain a mitigation alternative, which may later be developed.

________________________ _____________________________

Date Don LeDuc
Administrative Law Judge

Joint Exhibits

1-Application for Permit (5-18-89)
2-Modified Permit (7-13-89)

Petitioner's Exhibits

1-Certificate of Survey (August 18, 1982)
2-Certificate of Survey (July 16, 1985)
3-Certificate of Survey (May 2, 1989)
4-Tax Bill for Property (7-12-89)
5-Modified Culvert Plan (undated)
6-Photograph of Lots 28 and 29
7- Photograph of Lot 29 and Garage
8-Photograph of Lot 31
9-Photograph of Lot 30 and 31
10-Photograph of Lot 29 and Driveway
11-Photograph of Lot 31 and Road Culvert
12-Photograph of Subject Property from Lot 32

Department's Exhibits

1-Project Review Report (7-11-89)
2-Photographs and Schematic of Subject Property