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

Petition of Walter Teamer

File No. 98-09-0677
___________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated October 13, 1999. Upon issuance of the Proposal for Decision the Office of Administrative Hearings gave the Parties until November 3, 1999, to file written Exceptions to the Proposal for Decision. The Petitioner did not file Exceptions, while the Land and Water Management Division (LWMD) filed a letter which requested the Proposal for Decision be adopted. 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, exhibits, pleadings and arguments.

The activity proposed in the application for a permit is to place approximately 311 cubic yards of fill in a regulated wetland to allow for the seeding of a lawn and placement of a gazebo and swing set. The Proposal for Decision found a feasible and prudent alternative was available, namely upland on the site, thus precluding the issuance of a permit under § 30311(2)(b) and (4)(b).

The Director of the Department of Environmental Quality ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision dated October 13, 1999, including the Findings of Fact and Conclusions of Law. Based upon those Findings of Fact and Conclusions of Law, it is DETERMINED Walter Teamer is not entitled to a permit under Part 303.

NOW, THEREFORE, IT IS ORDERED:

1. The Proposal for Decision of October 13, 1999, is ADOPTED and INCORPORATED by reference into this Final Order.

2. The application for a permit submitted by Walter Teamer under File No. 98-09-0677 is DENIED.

3. This Final Determination and Order constitutes the final agency decision of the Department of Environmental Quality in this matter.

Dated: March 14, 2000
Russell J. Harding, Director
Department of Environmental Quality

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

Petition of Walter Teamer

File No. 98-09-0677

Dated: October 13, 1999
Richard A. Patterson
Administrative Law Judge

This contested case concerns the Petition of Mr. Walter Teamer. His application for a permit to place fill in a wetland contiguous to Woodland Lake in Newaygo County was denied by the Department of Environmental Quality (Department).

Although the application was reviewed under both Part 303, Wetland Protection, and Part 301, Inland Lakes and Streams, it became apparent that the proposal does not involve any activity at or below the ordinary high water mark of Woodland Lake. Therefore, the Department limited its consideration to the criteria of Part 303. Consequently, this Proposal for Decision will analyze the proposed activity solely under the permitting criteria of Part 303 of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended; MCL 324.30301 et seq.; MSA 13A.30301 et seq.

As stated, the hearing was held under the authority of Part 303 of the NREPA and the administrative rules promulgated thereunder. The hearing was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended; 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 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.

Mr. Walter Teamer is the Applicant for a permit and the Petitioner in this case. The professional staff of the Department is charged with the day-to-day implementation of Part 303 and is the Respondent in this case.

The hearing was held September 10, 1999. The Petitioner appeared in propria persona and testified on his own behalf, but presented no other witnesses other than himself. The Petitioner holds a Bachelors of Science-Environmental Science and a Masters in Arts in Urban, Regional and Transportation Planning. He is a registered professional planner-designer. Exhibit J-11. The Department was represented in this matter by Luis Saldivia, P.E., District Supervisor, Land and Water Management Division (LWMD), Grand Rapids District Office. The Department presented the testimony of Mr. Charles Dodgers, District Representative, LWMD, and Mr. Mark Tonello, Fisheries Biologist, Department of Natural Resources (DNR).

There were sixteen (16) exhibits entered into the record. A list and description of those exhibits is attached to this Proposal for Decision.

During the pre-hearing conference on July 19, 1999, the Parties stipulated that Mr. Walter Teamer is the proper applicant for a permit. I find this stipulation is legally sustainable, and adopt it as a Finding of Fact. Stipulations 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).

The Petitioner owns all of Block 384, consisting of 34 lots which are each 25 feet wide, of Woodland Park #2 Subdivision in Merrill Township. The Petitioner intends to construct a residence on this parcel, but the location of that structure is not at issue in this case. Rather, the Application, submitted on September 14, 1998, seeks a permit to place 3 to 6 inches of sand with a one inch layer of top soil in an area approximately 80 by 210 feet situated to the north of the home site. Exhibit J-1. This fill would enable him to develop a usable lawn area and allow for the construction of a storage shed, gazebo and swing set. Id.

After processing by the Permit Consolidation Unit of LWMD the Application was deemed complete on December 7, 1998, and was forwarded to the Grand Rapids District Office where it was assigned to Mr. Charles Dodgers. The Application was noticed for public comment on December 15, 1998. Id. Mr. Dodgers reviewed certain materials, performed a site visit, prepared a Project Review Report and Application Review Form and elicited comments from the Fisheries and Wildlife Division of the DNR. Exhibit J-2.

The proposal was denied by letter dated February 25, 1999. Exhibit J-3. The denial stated in part:

After due consideration of the permit application, on-site investigation and review of other pertinent materials, the Department finds that the proposed project will have a significant adverse impact on the natural resources associated with wetlands and Woodland Lake.

The subject wetland filters runoff, removing nutrients and other contaminants prior to their introduction into Woodland Lake. The Department finds that the proposed filing would harmfully alter the filtration benefits of the wetland.

The wetland area provides breeding, loafing, and nesting habitat for a variety of marsh birds and waterfowl, escape cover and breeding habitat for furbearers, and cover and feeding habitat for upland wildlife for reptiles, amphibians, and macroinvertebrates which are a vital part of the food web. These values would be adversely impacted by the filling.

The Department finds that the adverse effects to the environment and the public trust are not minimal nor are they mitigated to the extent possible, the public interest in the proposed development is not greater than the public interest in the unavoidable degradation of the resource, and that a feasible and prudent alternative is available.

As to the feasible and prudent alternative it was stated:

The Department suggests you leave the wetland in its natural state and use the available upland for a lawn and for construction of any desired out buildings.

The property owned by the Petitioner is depicted in detail on the last page of Joint Exhibit 1. The Petitioner's parcel contains a total of 425 feet of frontage on Woodland Lake. As depicted on the last page of Joint Exhibit 1, the area where a home is to be built is shown in black lines at the southerly portion of the property on lots 13 through 23. The area where the Application for a Permit seeks to place fill is depicted in green covering all of lots 9 through 12 and the westerly half of lots 23 through 26, which is a total area measuring 80 by 210 feet, or 16,800 square feet. No fill is proposed within 10 feet of the shore of the Lake. The proposed area to be filled is also shown on several photographs entered on this record. Exhibits J-5 though J-10.

The first issue to be decided is whether the property is

subject to regulation under Part 303. In that regard the testimony of Mr. Dodgers is beneficial. He possesses both a Bachelors of Science and a Master of Science in biology with an emphasis on fisheries. He has been employed by the Department and its predecessor DNR for 11 years and previously by the Indiana Department of Natural Resources for approximately 3 years and in the private sector. In his current position he routinely administers Part 303, among other Parts of NREPA, and reviews approximately 200 applications annually. He regularly participates in annual wetland training offered by the Department and has attended a program offered by the Environmental Protection Agency titled, "Jurisdictional Delineation of Wetland Ecosystems in the North Central United States." Exhibit R-1 and Mr. Dodger's testimony. He was qualified as an expert in wetland assessments and the administration of Part 303 without objection.

Mr. Dodgers described the parcel as part of a contiguous forested wetland exhibiting a predominance of obligate plant species, including royal fern, green ash, and white ceder. While on the site he noted the presence of matted vegetation and buttressed trees, both of which are indications of standing water. The National Wetland Inventory and the Newaygo County Soil Survey were not admitted into this record because they were not provided by the Department to the Petitioner within the time-frame established in this Tribunal's scheduling letter of July 19, 1999. However, Mr. Dodgers was allowed to refresh his recollection by reviewing these two documents. He testified these documents confirmed his determination that the subject area is wetland because of the presence of Napoleon Peat, a hydric soil, on the site.

On cross examination, Mr. Dodgers admitted both the soil survey and wetlands inventory are imprecise and not utilized, in and of themselves, for regulatory purposes. However, he remains convinced that a wetland is present on the parcel based on his observations during the site visit and his professional opinion. Mr. Dodgers testified to being confident his assessment is accurate, despite the fact his opinions have been challenged in the past. He also admitted he did not measure the borders of the wetland or determine its area. However, he believes a feasible and prudent alternative exists and, therefore, taking such measurements is unnecessary. Finally, because the wetland is directly connected to Woodland Lake he considers it contiguous and regulated under Part 303. The Petitioner presented no scientific proof to dispute these considerations.

Based on the foregoing, I find, as a Matter of Fact, the portion of the parcel at issue in this case is a regulated wetland and a permit is required to perform the proposed activity. MCL 324.30304(a).

Given the finding the parcel contains a regulated wetland, the next issue becomes whether the proposed activity can be permitted under Part 303. Mr. Dodger's opined that fill would adversely affect water circulation by blocking flow to Woodland Lake. This in turn would result in a loss of wetland functions, specifically water retention and filtration. It would further cause the loss of fish and wildlife habitat. Fisheries impacts were testified to by Mr. Mark Tonello, a Fisheries Biologist with the DNR. Mr. Tonello reviewed the permit application and visited the site in the company of the Petitioner. At that time he determined the area was wetland, although he could not testify to its borders. He further observed a stream to the north of the parcel and spring coming out of the ground.

Mr. Tonello testified that wetlands constitute a critical component of the ecosystem, in that they provide production of food and spawning areas for fish. As to this wetland, he testified that it provides a spawning and rearing habitat for northern pike. In his opinion, if spawning only occurred every 10 years on this site it would be of sufficient importance to maintain it in its present state. In conjunction with this application he reviewed and summarized a fish survey performed on Woodland Lake in 1993 and 1994. These surveys indicate the presence of blue gill, bass, northern pike, perch, bullhead and alewife. It further indicates growth of blue gill and bass were below state average, which he attributes to low food production around the Lake. This, in his opinion, makes this wetland all the more essential. He agrees with the assessment of Mr. Richard O'Neal, another DNR Fisheries Division employee who reviewed the application, that the application should be denied because the area serves as a fish spawning area. Exhibit R-4.

The Petitioner did not directly counter these considerations, but argues there will be no significant adverse impact. He asserts that by filling with sand and topsoil the area will retain or enhance the benefits the wetland now provides. Mr. Dodgers contradicted that assertion by testifying that the result would be the opposite. According to Mr. Dodgers, by placing fill in the wetland, even using permeable soil, its functions would be totally destroyed in that area.

The Petitioner argues that when he purchased the property from the Department it gave him certain assurances and, therefore, it should be prevented from now restricting his use and development of the property. In support he entered seven documents into the record as part of Exhibit J-11. These documents were prepared by the Lands Division of the DNR relative to his purchase of the property. Essentially, Mr. Teamer entered into a land exchange whereby he offered 29 lots in six non-contiguous tracts for the property he presently owns. Due to a disparity in the appraised values he paid seven thousand dollars ($7,000.00) in addition to deeding the property to the DNR. Mr. Teamer argues he was assured at the time of his acquisition that he could develop the property and that he relied on those assurances in consummating the transfer. However, it is clear from these documents that the representation of the DNR were limited to zoning restrictions and that the presence of wetlands was disclosed. First, the letter of April 1, 1983 stated, in part:

We also have reviewed the lists of lots you possibly could offer in an exchange to secure an equal value parcel in Block 384 which would be buildable under the existing zoning. It is my understanding that at least 150 foot in width is needed,.... (Emphasis supplied).Next, an interoffice communication to Dave Yankee, Land Acquisition Supervisor, from Tom Rozich, Land Appraiser, states, in part:

The Merrill Township zoning ordinance states the minimum building site for water frontage is eight lots or 20,000 sq. ft., while backlots is four lots or 10,000 sq. ft. Thus none of the offered lake lots are a bonafide building site, while both of the backlot tracts meet the minimum requirements...

The desired state lots contain 225 feet of Woodland Lake frontage. The lots, which are 85 percent upland, have a cover of oak poles on the upland and lowland hardwoods on the lowland...

Another consideration is we own the balance of Block 384 (16 lots), all of which is swampy and lies west of the take line drawn by the U.S. Forest Service... Shouldn't we dispose of the entire at this time, rather than be left with an unuseable (sic) remainder.

I find nothing in any of these documents which supports the Petitioner's assertion the DNR assured him that he could place fill on these parcels without a permit, if one was necessary. Furthermore, from these documents it appears the Petitioner had both actual and constructive notice of the presence of wetlands which were at that time regulated by the predecessor of Part 303, Public Act 203 of 1979. It should also be noted he has been allowed to develop the property, although not to the extent he desires. In any event, the remedy sought by Mr. Teamer is in the nature of estoppel, or a final agency decision that the Department cannot enforce Part 303 in regards to this parcel. If such a remedy exists it can only be obtained from a court of general jurisdiction, and not from an administrative Tribunal of limited jurisdiction. That being the case, and this Tribunal having found there to be regulated wetlands that would be impacted, this Proposal for Decision will be limited to addressing the proposal under Part 303.

Part 303 contains criteria for the review of permit applications and mandates findings be made with regard to each criterion.

(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.

(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.

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

Given the amount of upland on the parcel, along with the nature of the proposed activity, I find, as a Matter of Fact, a feasible and prudent location for the activity exists on the property.

(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.

I find, as a Matter of Fact, the effects of the proposal on both public and private uses, especially to the wetland, would be permanent and detrimental.

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

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

Based on the above testimony and exhibits, I find, as a Matter of Fact, that the ecological benefits of the wetland and the recreational values of the Woodland Lake as it pertains to fish would be adversely effected if the proposed activity were permitted.

(f) The size of the wetland being considered.

The precise size of the wetland complex was not quantified on the record. As to the parcel, neither Mr. Dodgers nor Mr. Tonello performed a wetland delineation. The area indicated on the plat map (Part of Exhibit J-1) indicates an area 80 by 210 feet proposed for fill.

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

Mr. Tonello also described the area to the north as marshy and in which he observed both a creek and spring. In a letter written at the time of the land exchange between the Petitioner and the DNR, Mr. Rozich described that area as "swampy". Exhibit J-11. Therefore, most, if not all, of the land comprised of lots 1 through 12 and 23 through 34 is wetland. This wetland comprises an area of 300 feet by a minimum of 240 feet, or at least 72,000 square feet.

(h) Proximity to any waterway.

The subject wetland is contiguous to Woodland Lake.

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

There would be some economic value to the Petitioner if he was allowed to improve the site. There would also be some incidental economic benefit to those contractors and trades people involved in the project and ultimately to the township by increasing the tax base. However, these would all be nominal.

(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 such findings by 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 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 alterative does not exist.

As discussed above, this wetland provides water retention, filtration for pollution treatment, is a source of nutrients in water food cycles and nursery grounds for fish. The Legislature found such functions are benefits, § 30302(1)(a)(i)(iv)(vi), and directs the Department to consider them in administering this statute, § 30302(2). In so doing, I find, as a Matter of Fact, the proposed activity would destroy said benefits. Further, § 30311(4) prohibits the issuance of a permit if the proposed activity will result in an unacceptable disruption to aquatic resources. Based on the record in this matter, I find, as a Matter of Fact, there will be an unacceptable disruption to the aquatic resources if the proposed activity is permitted.

I have previously found there is a feasible and prudent alternative location on the Petitioner's property where the proposed activity can be accomplished. Given this, the proposed activity is not dependent on being located in the wetland on this parcel.

1. I conclude, as a Matter of Law, that based on the Stipulation of the Parties, Walter Teamer is a proper applicant for a permit.

2. I conclude, as a Matter of Law, the processing of the application for a permit was procedurally correct.

3. I conclude, as a Matter of Law, based on the Findings of Fact, the subject site is comprised of a regulated wetland and a permit is required. MCL 324.30304(a).

4. I conclude, as a Matter of Law, the proposed activity is not in the public interest. MCL 324.30311(2).

5. I conclude, as a Matter of Law, the proposed activity will cause an unacceptable disruption to aquatic resources. MCL 324.30311(4)

6. I conclude, as a Matter of Law, the proposed activity is not wetland dependent. MCL 324.30311(4)(a)

7. I conclude, as a Matter of Law, requiring Petitioner to confine the proposed activities to the existing upland on the property is a feasible and prudent alternative for the reasons stated in the Findings of Fact. MCL 324.30311(4)(b).

Based on the Findings of Fact and Conclusions of Law, it is proposed that the Application for a Permit submitted by Walter Teamer under File No. 98-09-677 be DENIED.

Dated: October 13, 1999
Richard A. Patterson
Administrative Law Judge

Petition of Walter Teamer

File No. 98-09-0677

J 1 Public Notice, State of Michigan, Department of Environmental Quality (DEQ) dated December 15, 1998 and the Application for Permit signed June 15, 1997.
J 2 Project Review Report dated February 23, 1999 from Charles S. Dodgers and Application Review Form dated February 25, 1999.
J 3 Certified Letter sent from Charles S. Dodgers, District Representative, Land & Water Management Division (LWMD) to Mr. Teamer.
J 4 Color photograph 3½" x 5" labeled, "98-9-677, February 23, 1999, C. Dodgers".
J 5 Color photograph 4" x 6" labeled, "98-9-677, Shore Line of lots proposed to be filled".
J 6 Color photograph 4" x 6".
J 7 Color photograph 4" x 6" labeled, "98-9-677, General view of proposed fill lots".
J 8 Color photograph 4" x 6" labeled, "98-9-677, General view of proposed fill lots".
J 9 Color photograph 4" x 6".
J10 Color photograph 4" x 6".
J11 Four pieces of correspondence: Letter dated August 21, 1999 from Mr. Teamer to Mr. Richard G. Lacasse, Chief Administrative Law Judge, DEQ; Letter dated April 1, 1983 from C.E. Rademacher, Supervisor, Tax Lands and Services, Lands Division, Michigan Department of Natural Resources (MDNR); Interoffice Communication dated June 23, 1983 from Tom Rozich, Land Appraiser to Dave Yankee, Land Acquisition Supervisor, MDNR; Letter dated January 29, 1990 from Lee E. Gotcher, Real Estate Division to Mr. Walter E. Teamer.
J12 Memorandum dated January 6, 1999 from Lin Brown, R.S., Environmental Sanitarian, District Health Department No. 10 to the Department of Environmental Quality.
R 1 Resume of Charles S. Dodgers.
R 2 Offered but not admitted.
R 3 Offered but not admitted.
R 4 Rite-O-Gram dated April 12, 199 from Charles S. Dodgers to Richard O'Neal, MDNR, Fisheries, Oceana Field Office and a Response.
R 5 Letter dated July 19, 199 from Jeff Greene, Wildlife Habitat Biologist to Charles S. Dodgers.
R 6 Resume of Mark A. Tonello.