IN RE: Goemaere-Anderson Wetland Protection Act
Appeal of Daniel T. Valascho - File No. 87-6-393W
At a session of the
Natural Resources Commission
held at Lansing, Michigan
December 6, 1990
FINAL DETERMINATION OF RESOURCES COMMISSION
The Natural Resources Commission, having considered the Proposal for Decision dated June 13, 1990, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the matter, hereby determines and orders that:
The Proposal for Decision is adopted and affirmed in is totality and is further incorporated into this final decision by reference and is adopted by the Department of Natural Resources as its findings of fact and conclusions of law. (See Proposal for Decision, Cause No. 87-6-393W, dated June 13, 1990, attached hereto.)
December 6, 1990 __________________________
Date Thomas J. Anderson, Chairman
Natural Resources Commission
IN RE: Goemaere-Anderson Wetland
Protection Act Appeal
of Daniel T. Valascho
Cause No. 87-6-393W
PROPOSAL FOR DECISION
Kimberly Miles Rainey
Administrative Law Judge
JURISDICTION
This hearing was conducted pursuant to the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, as amended and the Michigan Environmental Protection Act, 1970 PA 127, as amended. The proceeding was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended.
PARTIES
1. The professional staff of the Department of Natural Resources is charged with the day to day administration of the Wetland Act.
2. Mr. Daniel T. Valascho appeared in pro per.
FINDINGS OF FACT
Petitioner is the owner of an approximately 23 acre piece of property, located contiguous to the shore of Lake Leelanau in Centerville Township, Leelanau County, Michigan. On or about August 25, 1987, Petitioner submitted an application to the Department of Natural Resources pursuant to the Goemaere-Anderson Wetland Act to place approximately 1,600 cubic yards of fill in the low lying wetland area to create buildable lots.
Petitioner's application was denied on October 20, 1987. (Department Exhibit One).
IS SUBJECT PROPERTY A WETL.AND?
Petitioner claims that a wetland was created by the placement of a dam on Lake Leelanau. However, by his own testimony, this dam has been in place since the turn of the century.
The issue of whether or not the State can regulate an artificially created Wetland was addressed in the recent Michigan Court of Appeals decision of Citizens D IR. 1 172 Mich App 536 (1988). Citizens Disposal (hereafter, Citizens) sought a permit to fill approximately 3 acres of wetland. Citizens argued that subject property was not subject to the ' Wetland Protection Act because the wetland conditions were artificially created by the redirection of the drainage patterns when US 23 was constructed during the early 1950's.
In that opinion the court stated:
"Wetland conservation is a matter of state concern, that the loss of a wetland may deprive the people of the state unenumerated benefits to be derived from a wetland.'' Citizens Disposal, Inc. v DNR, 172 Mich App 551 (1988).The Court concluded that it was irrelevant whether the wetland was created by natural or artificial means. Its mere existence provides the people of the State of Michigan with unenumerated benefits. If the legislature had meant to exempt artificially created wetlands, it should have done so specifically.
Petitioner's argument regarding the artificial creation of the wetland conditions is therefore of no significance.
Otherwise, Petitioner offered no proof contesting the finding that subject property is a wetland.
The definition of a wetland is:
Land characterized by the presence of water at a frequency and duration sufficient to support and that under normal circumstances does support wetland vegetation or aquatic life and is commonly referred to as a bog, swamp, or marsh and which is any of the following:Contiguous is defined at Rule l(l)(b)(iii) to be 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 watermark 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.
(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a river or stream. (Wetland Protection Act, Section 2(g))
Subject property is located within 500 feet of Lake Leelanau.
Rule 4(2) sets out the criteria for performing a wetland determination. It states as follows:
the Department shall rely on visible evidence that the normal seasonal frequency and duration of water is above, at or near the surface of the area to verify the existence of a wetland. Under normal circumstance, the frequency and duration of water that is necessary to determine an area to be a wetland will be reflected in the vegetation or aquatic life present within the area being considered. A wetland that has not been recently or severely disturbed will contain a predominance, not just an occurrence, of wetland vegetation or aquatic life.Examination of the soil characteristics is a method of making a wetland determination where there is no standing water to make the determination by observation.Where there is a predominance of wetland vegetation, and no direct visible evidence that water is, or has been, at or above the surface, the department shall use the following characteristics of the soils or substrate to verify the existence of a wetland:
(a) The presence of a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil that favor the growth and regeneration of wetland vegetation.
(b) Physical or chemical characteristics of soil column which provide evidence of the current and recent degree of saturation or inundation. Characteristics such as gleying, low chroma mottling, or chemically demonstrated anaerobic conditions, can be utilized to identify the current and recent depth and fluctuation of the water table or inundation.
Petitioner provided no expert testimony regarding wetland vegetation or soil types. Petitioner was the only witness called. He in fact testified that if the Department felt subject property was a wetland, he would not disagree.
In support of the Department's position that subject property is a wetland, Mr. Stuart Kogge testified on behalf of the Department. Mr. Kogge is a Water Quality Specialist. He holds a BS in Fisheries and Wildlife and an MS in Fisheries and aquatic biology. His duties include site inspection for wetland management.
Mr. Kogge performed site inspections on September 30 and October 15., 1987. He completed a Project Review and Evaluation Report. (Department Exhibit Ten and Eleven). The findings of those inspections disclosed:
1. Ground-water depression and surface-water slope.
2. The proposed project would have a detrimental impact upon flood water storage.
3. The proposed fill would alter the flow of water to Lake Leelanau by redirecting the flow around the proposed fill.
4. The predominant soil type is Lupton Muck.
5. The water depth to the water table is zero inches.
6 The site provides thermal cover for waterfowl, game birds, furbearers and other mammals including deer and grouse.
7. The proposed project would have a detrimental effect on scenic values and would result in negative precedent for the area.
Further, the Department's Exhibits 3, 4, and 7, photos of the subject area, indicate various wetland dependent species including cattails, red osier dogwood, cedar trees, marsh grasses, and surface and standing water. The Department's Exhibit 6 also indicates the muck soil present.
The public need addressed by Petitioner is that developed waterfront property increases the benefit to the entire community. In response to the question of whether or not it would be just as beneficial to build upland, he stated that if you can't see the water and use a boat, the public is not interested.
Petitioner further testified that it is not convenient to drag a boat down through the trees.
Petitioner further felt that the definition of a wetland was open areas of swamps, with some vegetation like cattails, ducks, frogs, small fish, different aquatic life, unimpeded by trees. He states on the record that he is not an expert on wetlands. Mr. Valascho testifying on his own behalf states that he is utilizing his own definition of a wetlands
Petitioner was asked whether there are any wetland symbols contiguous to his property as shown on Petitioner's Exhibit 3 (the subject property being depicted by a capital A). He testified that there were marshy areas to the south of his property.
Based on the testimony presented, subject property is a wetland.
SHOULD A PERMIT BE GRANTED?
The Act contains criteria for the review of permit applications and mandates that findings be made regarding each criteria. Section 9(1) provides:
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 the criteria discussed in the Wetland Protection Act at Section 9(2). That provision states:
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:Based on the parties' testimony, there is no public need for this project. There are other reasonable alternatives available for Petitioner to accomplish his purpose.
(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.The alternative proposed by the Department was that the proposed project could be developed upland closer to the road. This alternative was evidenced in the Department's Exhibits 1, 2, and 8 showing the upland area available. Petitioner testified that this would not be acceptable as prospective property owners would not be interested if they couldn't see the water. Petitioner offered no alternatives to building at the proposed site. The alternative proposed by the Department balances the private need to use the property versus the public interest in preserving wetlands.
(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.Mr. Kogge provided expert testimony regarding wetlands. He stated that the proposed project would have a detrimental effect on the public due to the detrimental effects on the wildlife by reducing thermal cover and feeding sites and would reduce the floodwater storage capability of the area, and would affect the lake itself by altering the flow to the lake. His findings, as reflected in his testimony, were evidenced in the Department's Exhibits 10 through 12.
(d) The probable impact of each proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed.
Although there is a moderate amount of development in the area, granting Petitioner's request for a permit would have an adverse environmental effect by setting a negative precedent for similar fills in the future further increasing the negative cumulative impact on the wildlife, lake, etc. (See Township Supervisor/Assessor memo and map provided by Petitioner and letter from Mr. Sikkenga dated May 24, 1990).
Documentation provided by Petitioner from the Centerville Township Supervisor/Assessor indicates that 7 lots have been filled and/or developed after January 1980. Mr. Sikkenga indicates that two aerial photographs of the area were available; one in 1977 and one in 1987. The 1977 photo indicates that there are seven houses, mobile homes or cottages and six parcels that have been partially cleared. The 1987 photo indicates that there are fifteen houses, mobile homes or cottages between Petitioner's property and the trailer park. There is nothing in the record establishing how many of these eight homes built since 1977 were permitted, therefore this information was not considered in rendering this proposed decision.
Petitioner offered no contradictory testimony regarding the wetland characteristics of the subject property presented by Mr. Kogge.
(e) The probable impact on recognized historic, cultural, scenic, ecological, or recreational values and on the public health or fish or wildlife.The project would have a detrimental effect on the wildlife. Mr. Kogge testified there were deer, grouse and other small mammals that utilized the area for thermal cover and food sites. This testimony was also reflected in Department's exhibits 10-12.
(f), (g) and (h) The size of the wetland, the amount of remaining wetland in the general area and the proximity to local waterways have previously been addressed.There is no economic value of the project to the public. Petitioner can still enjoy the use of the property by the alternative presented by the Department.
(i) Economic value, both public and private, of the proposed change to the general area.
CONCLUSIONS
1. Subject property is a wetland regulated by the Goemaere Anderson Wetland Protection Act.
2. Petitioner failed to establish that the proposed activity was dependent upon location in a wetland or that a feasible and prudent alternative did not exist.
THEREFORE, it is the proposal of this hearing officer that a permit not be granted.
Date:____________________ __________________________
Kimberly Miles
Administrative Law Judge