IN RE: GOEMAERE-ANDERSON WETLAND PROTECTION ACT
APPEAL OF MICHAEL WROZEK
Cause No. 87-13-157

The Natural Resources Commission, having considered the Proposal for Decision dated March 10, 1989, of the Administrative Law Judge, and the files, pleadings, briefs, and oral argument in this matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its 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. 87-13-157 dated March 10, 1989, attached hereto.)

Raymond/Poupore, Chairman
Natural Resources Commission

IN RE: Goemaere-Anderson Wetland Protection Act Appeal of Michael Wrozek
Cause Nos. 87-13-157

William C. Fulkerson
March 10, 1989 Administrative Law Judge

This matter is a contested case concerning the application of Michael Wrozek for a Wetlands Permit.

JURISDICTION

The hearing was conducted pursuant to 1979 PA 203, the Goemaere-Anderson Wetland Protection Act.

PARTIES

The professional staff of the Department of Natural Resources is charged with the day-to-day implementation of the Goemaere-Anderson Wetland Protection Act. Michael Wrozeck requested a hearing pursuant to the act.

The Petitioner, Michael Wrozek, is the owner of a residential lot, described as Lot Number 1, Olcott Lake Farms Number I subdivision, Napoleon Township, Jackson County, Michigan. The lot was acquired in 1985 for the purpose of constructing a residential home. The lot is triangular in shape. The base of the triangle fronts Olcott Lake Drive and is 362 feet wide. The southerly corner of the lot is a right angle, perpendicular to Olcott Lake Road and extends back 304 feet. The other side of the lot connects the two corners of the previously described sides and is 517 feet long.

In June of 1985, Mr. Wrozek was ordered to cease and desist the filling of the lot which he had begun. Thereafter, Mr. Wrozek filed for a permit application to fill

The rear tip of the triangular lot, within an area described as 150' x 250' x 170'. The fill was to be between two and four feet deep, with the material coming from higher portions of the lot. The permit application was denied but the Department did state:

"The Department would give consideration to the placement of fill in an area 100' x 40' for the development of a septic drain field. At a future date, if a septic field at this location were to fail, the Department would give consideration to the placement of fill in an area 100' X 60' for a second drain field, under separate application."

Among other reasons sited for denying the application was that, the activity was not wetland dependent, that an unacceptable disruption to the aquatic resources would occur, and that a feasible and prudent alternative exists.

The first issue to be addressed is whether the subject property is a wetland. It was Mr. Wrozek's position that the plugging of a drainage ditch had caused the rear of his property to become wet. Thus, the normal historic condition of the property was not as a wetland. Several Department witnesses, trained in wetland identification, visited the property. It was their opinion in every instance that the rear of Mr. Worzeck's property, proposed for fill, was wetland and that is part of a larger wetland, approximately ten to eleven acres in size. The soil was described as organic soil, specifically Napoleon muck, that was at least five feet in depth. According to the testimony, it would take thousands of years to develop organic soils of that depth. The land was described as a semi-permanently flooded scrub-shrub wetland. The common plants identified were button-bush, Michigan holly, sedges, sphagnum, woolgrass, and cattails. The land has thick, heavy cover, and is characterized by seasonal flooding and a high water table. The uncontroverted evidence is that Mr. Wrozek's property, proposed to be filled, is wetland that it is part of a wetland in excess of five acres, and is therefore, subject to the requirements of the Act. The Wetlands Act contains criteria for the review of permit applications and mandates that findings be made to each criterion.

Sec. 9 (1) 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 criteria discussed in the "Act". A permit is necessary to engage in the activity requested, and it is otherwise lawful activity.

(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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The proposed activity is the placement of a drainfield for residential sewage from the proposed residence. Since this area is not served by sanitary sewers, if a home is to be built a location for a drain field must be obtained on the property.

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

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The shape of the lot somewhat limits the location of structures. It is clear that there is adequate space for the installation of a septic field on the front portion of the property, which is not wetland.

(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 filling proposed by Mr. Wrozek would eliminate an area of wetlands 150' X 250' X 170'. This would permanently eliminate a portion of the larger wetland system. The wetland was identified as a flood storage area, potential groundwater recharge area, and having some wildlife values. These values would be eliminated. The current use of the property by the general public is minimal.

(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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The Wrozek property is typical of lands within his subdivision and the subdivision adjoining. That is, the ten or eleven acre wetland, which is part of Mr. Wrozek's lot, is surrounded by residential lots. If each lot owner found it necessary to fill the entirety of his lot, the wetland would be eliminated. If the owners of the lots adjoining this wetland wish to have more upland, the only way they can obtain it is by filling of the wetlands. Therefore, it was the Department staff's opinion that the potential cumulative effect of similar types of proposals could be very significant.

(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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The historic and cultural impact of the proposed development is probably minimal. The scenic impact is a subjective one. The wildlife value for the property is diverse. An inspection was made by a Department wildlife biologist who reached the following conclusion:

"[Exhibit 14] I noticed both deer and racoon tracks in the moist soil. During the summer and fall months, I suspect the primary use of the marsh by area wildlife is for a travel lane and loafing cover. When the water table is high in the spring, I think ducks and other water-oriented birds would use the area for brood-rearing activities. The heavy cover furnished by the lowland brush and cattails provides winter habitat. "

A significant value identified by the witnesses was that of a stormwater runoff retention area and possibly a groundwater recharge area.

(f) The size of the wetland being considered.

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This wetland is ten or eleven acres in size, surrounded by subdivided residential lots.

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

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Exhibit 4, a topographic map, reveals that much of the original area is wetlands. This is an area of small lakes and wetlands.

(h) Proximity to any waterway.

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This wetland does not directly connect to any body of water, although indirectly, through drainage patterns, probably ultimately flows to Olcott Lake.

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

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The proposed construction of a residence would provide some construction work, add to the local tax base, and create a need for goods and services by those persons who would occupy the lands. There is nothing in the record to indicate that this land cannot be used or occupied without filling the wetland. Mr. Wrozek believes that the inability to fill the wetland adversely effects the value of his property. Correspondingly, the physical condition of the property probably effected the purchase price he paid for it. Also, most other property in the vicinity is part wetland.

(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 by any 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 3 and subsection (2) shall be considered. A permit shall not be issued unless the applicant also shows either of the following:

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 proposed activity is not primarily dependent upon being located in a wetland. If anything, the location of the drainage field within a wetland area poses problems. Mr. Wrozek testified that at his present home, in the same area, he had a drain failure and that his neighbors had similar problems. The record discloses that there were any number of feasible and prudent alternatives available to Mr. Wrozek. He is inflexible in his desire to fill the land and place the drain field where he wishes. Mr. Wrozek has constructed a polebarn on the upland portion of the property. This was done after the wetland permit had been denied. Mr. Wrozek does not want to place a drain field on the upland portion of his land because it would require a pump to reach the higher ground. Additionally, as the testimony developed, he advanced several reasons why he must place the septic field behind the polebarn and residence and fill the wetland. He plans to connect both the polebarn and the residence to the septic field, which would be impractical if he had to pump the waste from the polebarn to the more distant location. He further testified that he intends to place toilet facilities in the basement of his proposed residence, which means he must install the septic field at an elevation well below the house. Thus, he considers any proposal, other that the filling of the entire lot, to be imprudent and infeasible. This, in part, is based upon the fact that he believes that the drain field may fail because it will be located in a filled wetland. Thus, he must have enough filled land available for an alternative drain field. Interestingly enough, the building restrictions for Mr. Wrozek's lot, Exhibit 25, state:

(1) Onsite septic systems shall be constructed on the street side of all buildings anticipating future sanitary sewers.

(2) Permits for onsite septic systems shall be obtained prior to a building permit being issued, and each lot shall be given individual attention to its design.

There was no evidence as to whether sanitary sewers are anticipated in this area. However, the building restrictions clearly recognize this as an area where the location of suitable drain fields would be difficult. Mr. Wrozek stated, from his own experience living in the area, that he anticipated problems with septic fields. In light of his knowledge as an excavating contractor and a resident of the area, I find it surprising that he would choose the lowest and wettest portion of the lot as the only feasible place to install a drain field. A review of Exhibit 7, a drawing by Mr. Wrozek intended to show why he must fill the wetland area, clearly shows that the polebarn was probably built in the best location for a septic field. In spite of all of this, the Department made a generous offer to allow sufficient fill to install a drain field behind the proposed residence. I conclude that there are feasible and prudent alternatives to the wetland fill and that the lack of their feasibility to Mr. Wrozek is his unwillingness to work with the land, as it exists.

CONCLUSIONS OF LAW

1. The Petitioner has applied for a permit to activity which requires a permit to engage in an under the Goemaere-Anderson Wetland Protection Act.

2. Based on the foregoing "Findings of Fact", I conclude as a matter of law, that the activity will cause an unacceptable disruption of the aquatic resources. However, I conclude that the proposal of the Department, evidenced by Exhibit 8, for a fill area of 30' X 50', is reasonable. In the alternative, if this is unacceptable to Mr. Wrozek, I conclude that feasible and prudent alternatives do not involve any wetland fill.

PROPOSAL

Based on the foregoing, it is proposed that the denial of the permit application was proper and that the modified permit, allowing for a fill area of 30' X 50', is acceptable.
 

Dated
William C. Fulkerson
Administrative Law Judge

RE: Goemaere-Anderson Wetland Protection Act Appeal of Michael Wrozek
Cause No. 85-13-157

STIPULATED EXHIBITS

1. Letter - order of "cease and desist", from DNR, June 20, 1985.
2 Notice of Public Hearing, August 19, 1985, with attachments.
3 Soil Survey - three-page excerpt related to Jackson County, Michigan.
4 Topographic Map - US Department of the Interior Geological Survey, 1970, showing Wrozek land.
5 Excerpt of land outline map, with Wrozek land.
6 Letter, Jackson County Health Department, to Albert Massey, DNR, outlining drainfield.
7 Graphic illustration of the proposed project measurements.
8 Graphic illustration of the proposed septic and isolationfield area, with shown measurements.
9-12. Photographs - various views and illustrations of the actual property - mostly showing vegetation and layout.
13. Booklet--for Jackson County Governing Sewage Disposal.
14. Interoffice Communication - To Rick Schramm, LRPD, from Jeff Greene, Wildlife Habitat Biologist, date Sept. 9, 1985, regarding "Wetland Permit Application 85-13-157".
15-22. Photographs - various view and illustrations of the actual property at various seasons of the year.
23. Project Review Report from June 20 and August 29, 1985 - with illustrations and notes related to onsite findings.
24. Certified Letter - to Petitioners, regarding permit denial, date October 31, 1985.
25. Owner, encumbrances, exceptions and requirements as found by "First American Title Insurance Company of Mid-America" for Lot 1. Olcott Lake Farms No. 1 owned by Michael Wrozek.