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

Petition of Kathryn Testolin

File No. 98-08-0064
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The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated January 26, 1999. In a letter dated January 26, 1999, the Office of Administrative Hearings gave the Parties until February 19, 1999, to file written Exceptions to the Proposal for Decision. Ms. Kathryn Testolin (Petitioner) filed her Exceptions on February 17, 1999. The Department of Environmental Quality did not file any Exceptions. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a final agency decision pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.

This Tribunal has considered the Proposal For Decision, the Parties Exceptions, 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.

The Petitioner details her Exceptions to the Proposal for Decision (PFD) along the lines of the permitting criteria of Part 303. MCL 324.30311. Specifically, the Petitioner argues that the permit should be issued for the following reasons: the private need for the activity is great; there are no feasible and prudent alternatives; the private and public uses would be increased if the activity were permitted; wildlife would not be harmed by the activity; wetlands remain in the area; the economic value to her and the Township would increase if the activity were permitted; and any disruption to the aquatic resources would be minimal.

The nine general criteria in §30311 are utilized to determine if the activity is in the public interest. The PFD found that in balancing the benefits and detriments, the proposed activity is not in the public interest. The Petitioner has not shown that the finding is not based on the evidence on this record.

The PFD found that constructing the residence on pilings may be a feasible and prudent alternative to placing fill in the wetland. The Petitioner counters that it is not a prudent alternative in that it is beyond her means and inconsistent with the other dwellings in the area. However, the alternative analysis must be objective, meaning it is a question of whether it is economically achievable. To analyze it subjectively would result in the Department having to look at the ability of every applicant to pay for alternative construction methods. Such an approach is neither practical nor possible.

Although the use of pilings was not examined on this record, it is, on its face, a prudent alternative to placing fill in a wetland. By utilizing piling construction the Petitioner would accomplish her stated purpose of building a residence on the property while any impact to the wetland would be minimized to the extent possible. In any event, the record supports the finding that a feasible and prudent alternative method may be available. Given this, the Petitioner's request that the PFD be rejected and a permit issued is not supported by the record in this matter.

The Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision including the Findings of Fact and Conclusions of Law.

THEREFORE, IT IS ORDERED:

1. The Proposal For Decision dated January 26, 1999, is adopted by reference and incorporated into this Final Order.

2. The application for a permit filed by Kathryn Testolin, made under File No. 98-08-0064, is DENIED.

3. The Office of Administrative Hearings does not retain jurisdiction in this matter

Dated: March 19, 1999
Richard G. Lacasse, Chief
Administrative Law Judge, MDEQ
Office of Administrative Hearings

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

Petition of Kathryn Testolin

File No. 98-08-0064

Date: January 26, 1999
Richard A. Patterson
Administrative Law Judge

The application for a permit was filed by Mrs. Kathryn Testolin on February 20, 1998. The application was set for Public Notice on March 26, 1998, and denied by the Department of Environmental Quality by certified letter dated May 7, 1998. The denial was based on the provisions of Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act. Mrs. Testolin timely filed a petition for a contested case hearing with this Tribunal on June 12, 1998. The contested case hearing was held in this matter on October 16, 1998.

The contested case hearing in this matter was conducted pursuant to Part 303, Wetland Protection, MCL 324.30301 et seq., MSA 13A.30301 et seq., of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, and the administrative rules promulgated thereunder. The hearing was governed by 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.

Mrs. Kathryn Testolin (Petitioner) is the applicant for a permit and is the Petitioner in this case. The Petitioner appeared in propria persona and presented herself and her father, Mr. Eugene Suprenant, as witnesses.

The professional staff of the Department of Environmental Quality (Department) is charged with the day-to-day implementation of the Part 303 and is the Respondent in this case. The Department presented two witnesses: Mr. Daniel Morgan, District Supervisor, Land and Water Management Division, Saginaw Bay District Office, and Mr. Douglas Morse, Land and Water Analyst, Land and Water Management Division, Saginaw Bay District Office.

The Petitioner introduced four (4) exhibits and the Department introduced thirteen (13). The Petitioner's exhibits are labelled alphabetically and the Department's exhibits numerically. A list and description of these exhibits is included at the end of this Proposal for Decision.

The subject site is located in the Village of Port Hope, Huron Township, Huron County, Michigan. The property consists of Lot No. 1 of the Pawlitz Subdivision and measures approximately 100 feet in width and 150 feet in depth. The unimproved lot is on the shoreline of Lake Huron at its northerly border and abuts Lakeview Avenue to its south. The adjoining lots to the east and west are both improved.

The application for permit requests a permit to place approximately 1,700 cubic yards of fill material in a wetland area to construct a 2,400 square foot septic system, a 15 foot wide by 60 foot long driveway and a 75 by 43 foot residence. Respondent's Exhibit 2.

Kathryn Testolin has an option to purchase the subject lot which is presently owned by Ms. Joanne M. Carvana-Hayes and Mr. Michael E. Hayes. Subsequent to the submission of the application for a permit, Respondent's Exhibit 1, Mr. Daniel Morgan reviewed the data available and conducted an on site evaluation. In so doing he found all of the parcel, but for an upland beach ridge, was regulated wetland. The application was denied by the Department on May 7, 1998. Pursuant to Mrs. Testolin's request, an informal review of the denial was conducted by Mr. Fred Gottschalk, Land and Water Management Division, Contested Case Supervisor. However, that process did not result in the settlement of this case.

During the pre-hearing conference on September 18, 1998, 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.

I find these stipulations are legally correct, and I adopt them as findings. 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).

Mr. Daniel Morgan testified that he reviewed the wetland inventory map, Respondent's Exhibit 3, which did not indicate the presence of wetland on the subject property or in the immediate area. However, when he performed a site review on April 10, 1998, and prepared a Project Review Report of his findings (Respondent's Exhibit 10) he found wetlands estimated to total 3/10 of an acre which are contiguous to Lake Huron. The area adjacent to the road and extending north were characterized by him as an emergent marsh with the presence of cattails and rushes. The soils were "too loose" to probe and there was approximately 1 foot of water present in much of the area. That area essentially extended the full width of the lot 123 feet toward the lake, or to the north. At that point, approximately 50 feet of upland beach ridge is present. Beyond that a forested wetland exhibiting Green Ash and Willows exists extending to the lake shore. Respondent's Exhibit 10, page 2.

While on site Mr. Morgan testified he flushed a woodcock and observed a muskrat lodge. He characterized the lot as predominantly coastal emergent wetland, or a marsh which serves to filter run off from the road and adjoining lots as well as providing access to Lake Huron for wildlife. He is of the opinion that coastal marshes are a rare resource in the Saginaw Bay area and important for the above reasons as well as facilitating the migration of birds through the area.

Mr. Morgan traversed the immediate area and found only one lot within 3/4 of a mile in either direction that was close to having these characteristics. Based on these observations and determinations a letter denying the application for permit was sent to the Petitioner. Respondent's Exhibit 11.

Mr. Douglas Morse performed a site review and prepared a Project Review Report, Respondent's Exhibit 13, on September 22, 1998. He agrees with Mr. Morgan assessment of the area. He focused his attention on plant taxonomy, finding a large diversity of some 15 species present. He characterized the marsh as "very diverse and unique."

In response, the Petitioner disputes there is wetland present, describing the area as "lowland" of recent creation and asserts the area is smaller than the Department's determination. The Petitioner argued that the wet area had been created by run-off from the adjacent higher improved parcels. Mr. Morgan testified, however, the soils present were peat which develops over geologic time. This fact belies the assertion that the area is newly formed and is merely "lowland".

In support of her conclusion that the "lowland" area is smaller, she presented the testimony of her father Eugene Suprenant. Mr. Suprenant has a Bachelor of Science degree in Biology and Zoology from Central Michigan University and has undertaken graduate studies in Ornithology. He has taught high school biology and industrial studies for 31 years. He measured what he considered to be lowlands and computed them to comprise an area of only 80 by 90 feet at the rear of the lot. Petitioner's Exhibit D. In addition he testified there are 10 unimproved lots in the area. Petitioner's Exhibit A. Lastly, he stated he had never seen water fowl or Woodcock (Timberdoodle) on the subject lot.

The proposed activity involves filling in an area the Department has determined to be a regulated wetland. Since Petitioner did not stipulate that the activity was so regulated a finding is necessary.

Subsections (d) (i) and (d) (ii) of Section 30301, provide the criteria which must be found before the Department may regulate a wetland. MCL 324.30301(d) (i) and (ii). As applicable to this site the wetland must be:

(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake of pond or a river or stream.

Administrative Rule 1988 AACS, R 281.921 (1) (b) (iii) and (b) (iv) defines "contiguous" as:

(b) `contiguous' means any of the following:

***

(iii) A wetland is partially or entirely located within 500 feet of the ordinary high watermark of an inland lake or pond or a river or stream or is within 1,000 feet of the ordinary high water mark of one of the Great Lakes or Lake St. Clair, unless it is determined by the department, pursuant to R 281.924(4), that there is no surface water or groundwater connection to these waters.

The Department contends the affected area is wetland as determined by Mr. Morgan and Mr. Morse. The Petitioner disputes that determination for the reasons outlined above.

I find, as a Matter of Fact, that the property is comprised of wetlands of the nature and extent testified to by Mr. Morgan and Mr. Morse. There is no credible scientific evidence to the contrary on this record. The forested wetland abuts Lake Huron and the reminder to the south of the beach ridge was measured by Mr. Morgan to be as close as 70 feet from the lake. Thus, there is no question the wetlands are contiguous to Lake Huron, and I so find, as a Matter of Fact. Because the wetlands are contiguous to Lake Huron, their size is irrelevant under 1988 AACS, R 281.921 (1) (b) (iii). Even under Mr. Suprenant's measurement the area would be regulated.

It necessarily follows, therefore, that a permit is necessary for the proposed activity and I so find, as a Matter of Fact.

Part 303 contains criteria for the review of permit applications and mandates findings be made with regard to each criterion. The pertinent provision, §30311(1), provides:

A permit for an activity listed in §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.

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A determination of whether the project is in the public interest is made by applying criteria discussed in Part 303. I find, as a Matter of Fact, a permit is necessary to engage in the activity requested and it is otherwise lawful. However, this finding does not negate the requirement to obtain other applicable federal, state or local permits. Section 30311(2) further provides:

(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.

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Mr. Morgan acknowledged a need for housing in the area, but disputed the fact that it needed to be done on this property. That is, while there is a housing need, there is other property available for development which would not involve wetlands. The Petitioner desires to build a residence and associated structures on this particular lot and, therefore, has a private need to utilize it. I, find, as a Matter of Fact, the public need for housing can be otherwise fulfilled in this rural and relatively undeveloped county. The Petitioner's private need is not so great as to outweigh that consideration. I find, as a Matter of Fact, the public need to retain this coastal marsh parcel outweighs the Petitioner's need to fill it.

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

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This consideration closely follows the above under the facts of this case. As to alternative locations, Mr. Morgan testified to the existence of other homes and lots in the area. Since Mrs. Testolin is a proposed purchaser, it is the Department's position she should avail herself of those options, as opposed to filling this parcel. Petitioner's Exhibit A shows a number of unimproved lots in the plat, mixed with some which have homes on them. There is no evidence, however, that any of these lots, improved or unimproved, are for sale, or if they are they are within Petitioner's means. In addition, the criteria contained in Part 303 address the proposed use of the land in question as opposed to the person applying. Thus there would appear to be no reason to differentiate between a proposed purchaser or an owner in reviewing the permit application. I find, as a Matter of Fact, on this record there has been no showing of a feasible and prudent off site alternative location.

There is also no feasible and prudent on-site alternative location as the entire lot would have to be filled to facilitate the Petitioner's plans. The upland beach ridge is too narrow to accommodate building within its confines. As to methods, the Department acknowledged that while placing the buildings on pilings is feasible, the necessity of on site sewage disposal dictates filling of the property. However, this matter is one which should be explored with the local health department. There may be another method to accomplish waste disposal without a large field which requires considerable fill. It is also possible sewers may be installed in the future. Therefore, upon submittal of a proper plan placing the project on pilings, perhaps with some minimal fill, a feasible and prudent alternative method could be utilized which minimizes wetland impact, meets the Petitioner's desire to develop the parcel and is compatible with local health department requirements.

(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.

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The testimony of Mr. Morgan and Mr. Morse to the rarity and unique values of the parcel as it exists is essentially unrebutted by scientific evidence. The filling would unquestionably permanently destroy those values.

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

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Mr. Morgan testified to the paucity of similar marshes in the immediate area as well as generally surrounding Saginaw Bay. He characterized the marsh as a "rare resource" which is under "intense pressure" from development. While the Petitioner contends there are "wetlands" in the general area across Lakeview Drive and that there are grassy areas to the east of the subject property, there is no testimony that any exhibit the characteristics of the subject parcel. Mr. Suprenant frankly admitted he was unfamiliar with Part 303 criteria or classification of plant species.

I find, as a Matter of Fact, that the filling of the resource as proposed would have a cumulative adverse impact on existing activities in the watershed.

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

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There is no contention the fill would impact recognized historic or cultural values or public health. Scenic values are subjective and judgmental. Obviously, the Petitioner would prefer to reside on the property with a view and use of Lake Huron. The Department would prefer maintaining the existence of the parcel in a natural state. Ecological considerations have been previously addressed. Recreational values to the Petitioner would be increased. Fish would not be impacted. Wildlife would, according to the Department witnesses, lose habitat and a corridor to open water.

(f) The size of the wetland being considered.

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The wetland as determined by the Department, which I have found to be credible, is approximately 3/10 of an acre.

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

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The specific amount remaining wetland was neither quantified or qualified. There was allusion to "wetlands" across the road and "marsh" to the east. However, there is no testimony demonstrating the existence of any wetlands of the character and quality of the subject parcel offered by Petitioner. In fact, the testimony offered by the Department was to the contrary.

(h) Proximity to any waterway.

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The wetlands, as previously indicated, are on the shore and within 70 feet of Lake Huron, being divided only by a relatively narrow beach ridge.

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

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The economic value of the parcel would be greatly enhanced, and thus the proposed activity equates to a benefit to the Petitioner. An increase in the Township's tax base would also ensue.

(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.

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There have been no findings of 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 alternative does not exist.

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The available upland on the site is too small to accommodate the proposed activity, so it can not be accomplished without impacting the wetlands. Thus, if a residence as proposed is to be constructed, it is dependent upon being located in the wetland.

This Tribunal has previously found that a feasible and prudent alternative method, such as constructing a house on pilings, may be available, but has not been established on this record.

The criteria to be considered pursuant to MCL 324.30302(b)(i) through (vi) and subsection (2) addressed above would, for the reasons stated, be materially and adversely effected by the proposed activity. I find, therefore, as a Matter of Fact, the proposal will cause an unacceptable disruption of the aquatic resources.

Finally, after addressing each of the above criteria, §30311(2) requires a balancing of the benefits against the reasonably foreseeable detriments of the proposed activity so as to determine whether the activity is in the public interest. In so doing, I find, as a Matter of Fact, the proposed activity is not in the public interest.

1. I conclude, as a Matter of Law, based on the Findings of Fact, the subject site is comprised of regulated wetland and a permit is required pursuant to §30304(a) and (b) of Part 303 of NREPA.

2. I conclude, as a Matter of Law, based on the stipulation of the Parties, the processing of the application for a permit was procedurally correct and that Kathryn Testolin is the proper applicant for a permit.

3. I conclude, as a Matter of Law, the proposed activity is not in the public interest.

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

5. I conclude, as a Matter of Law, based on the absence of buildable upland on the parcel, the proposed activity is dependent on being located in the wetland.

6. I conclude, as a Matter of Law, the proposed activity is otherwise lawful.

7. I conclude, as a Matter of Law, there has been no showing of a feasible and prudent alternative method to accomplish the stated purpose for the activity, construction of a residence and related facilities, on this record, but the same may exist in another form for the reasons stated.

Based upon the above Findings of Fact and Conclusions of Law, it is proposed that a Final Order be entered denying the application for a permit submitted under File No. 98-08-0064.

Dated: January 26, 1999
Richard A. Patterson
Administrative Law Judge

Petition of Kathryn Testolin

File No. 98-08-0064

A Photocopy of map, SW ¼ Section 12 T18N R14E, Huron Twp., Huron County.
B Colored photograph, 4" x 6", dated September 20, 1998.
C Colored photograph, 4" x 6", dated September 20, 1998.
D Hand drawn map, 8½" x 11".

Respondent's Exhibits

R 1 Application for Permit, Department of Environmental Quality [DEQ] File No. 98-8-64W, Kathryn Testolin, dated February, 1998.
R 2 State of Michigan [SOM], DEQ, Public Notice Dated March 26, 1998, File No. 98-08-0064W.
R 3 Photocopy of map, site, MIRIS Wetlands MI low kind hardwoods.
R 4 Three (3) photographs, 4" x 6", taped together, panoramic view, all dated April 10, 1998 and initialed DHM. Photograph # 1 of 3 is labeled, "Panoramic shot from SE corner of lot looking NEly. -standing on lakeside Gary Weker home in photo. Photograph #2 of 3 is labeled, "Pan. Looking easterly across lot from lakeside." Photograph # 3 of 3 is labeled, "Pan. Looking easterly across lot from lakeside."
R 5 Photograph, 4" x 6", dated April 10, 1998 and initialed DHM. Labeled, "Muskrat den in easterly portion of wetland. Photo from beach ridge looking westerly, lakeside drive in distance."
R 6 Photograph, 4" x 6", dated June 17, 1998 and initialed FG. Labeled, "Testolin, 98-8-64".
R 7 Photograph, 4" x 6", dated June 17, 1998 and initialed FG. Labeled, "Testolin, 98-8-64".
R 8 Photograph, 4" x 6", dated June 17, 1998 and initialed FG. Labeled, "Testolin, 98-8-64".
R 9 Photograph, 4" x 6", dated June 17, 1998 and initialed FG. Labeled, "Testolin, 98-8-64".
R 10 DEQ, Land and Water Management Division [LWMD], Project Review Report on this project. Name of Evaluator: Dan Morgan and review date, April 10, 1998.
R 11 Certified Letter to Gene Testolin dated May 7, 1998 from Daniel H. Morgan, District Supervisor, DEQ, LWMD.
R 12 Letter to Gene Testolin dated May 26, 1998 from Walter A. Gauthier, Chief, Permit Evaluation Section B, Regulatory Branch, Department of the Army, Detroit District, Corps of Engineers.
R 13 DEQ, LWMD, Project Review Report on this project. Name of Evaluator: D. Morgan/Doug Morse and review date September 22, 1998.