IN RE: Floodplain Occupancy Act 245
Appeal of Heydenburg Builders, Inc.
File No. 89-08-0046

At a session of the
Natural Resources Commission
held at Lansing, Michigan
August 13, 1992

The Natural Resources Commission, having considered the Proposal for Decision dated March 17, 1992, 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 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. 89-08-0046, dated March 17, 1992, attached hereto.)

Date

Larry DeVuyst, Chairman

Natural Resources Chairman

STATE OF MICHIGAN
DEPARTMENT OF NATURAL RESOURCES
OFFICE OF ADMINISTRATIVE HEARINGS

IN RE: Floodplain Occupancy Appeal of
Heydenburg Builders, Inc.

DNR File No. 89-08-0046

Petitioner:
Heydenburg Builders, Inc.
John H. Lewis
505 Greenbriar
Attorney for Petitioner
Mt. Pleasant, MI 48858
300 South University Ave.
Mt. Pleasant, MI 48858

Respondent:
Department of Natural Resources
Land and Water management Division
Steven T. Mason Building
P.O. Box 30028
Lansing, MI 48909

PROPOSAL FOR DECISION

Richard A. Patterson
Administrative Law Judge

This matter comes before the undersigned as a contested case pursuant to 1988 PA 518, section 18 (2) and the Michigan Administrative Procedures Act (Act 306 of 1969 as amended: MCLA 24.210 et seq.).

Present were John Lewis, Esq., attorney for Heydenburg Builders, Inc., Mr. Robert Heydenburg and Mr. William Ruddell of Ruddell Engineering, Inc. Present on behalf of the Department of Natural Resources were Mr. Daniel H. Morgan and Mr. Lewis Saldivia.

The Petitioner, Heydenburg Builders, Inc. is the record owner of platted property legally described as lot 41, Hiawatha Hills in Deerfield Township, Isabella County, Michigan. The northwesterly property line is contiguous to the Chippewa River.

On April 12, 1984, the Department of Natural Resources issued a permit (No. 64-08-0026) for the placement of six thousand five hundred (6,500) cubic yards of fill of which approximately one half would be placed within the flood plain of the Chippewa River. The proposed purpose of the project was construction of three single family residents and that application and permit applied to two lots other than lot 41, which is presently at issue. During the review of the 1984 application, the One Hundred Year Flood Elevation was determined to be a seven hundred eighty point five (780.5) N.G.B.D. The permit as issued contained an expiration date of December 31, 1985. During that period, there were no requests for extensions of the permit or requests for contested case hearing. Obviously, the Petitioner here and the former applicant Heydenburg Builders did not construct the project pursuant to the 1964 application and the permit expired. On March 21, 1989, Petitioner filed a new application which it characterized as "essentially a reapplication for approval (of the 1984 permit)."

Again, the stated purpose of this application was for a single family residential construction confined to lot 41 together with a sanitary drain field and involved the placement of six thousand six hundred seventy-three (6,673) cubic yards of fill within the flood plain area of the Chippewa River.

The latter application was set for Public Hearing April 10, 1989, and field staff inspected the property on or about April 27, 1989. Field staff reported that the proposed fill area was not regulated wet land but noted that the area appeared to be subject to frequent flooding. The Isabella County Soil Conservation District and Upstream Land Owners provided letters objecting to the Proposed project. The staff of the Flood Plain Regulation Unit of the Land and Water Management section conducted an hydraulic analysis to review and, if necessary, establish the One Hundred Year Flood Plain and floodway of the Chippewa River in this immediate area of Hiawatha Hills Subdivision. That analysis was compared to the 1977 Hydraulic Report prepared by Ruddell Engineering, Inc. and miscellaneous other projects in the vicinity. In addition, information was provided for review of the September, 1986 One Hundred Flood Occurrence of the Chippewa River in that location. A hydraulic analysis and review of all available information indicated that the proposed residence and fill would be placed within the floodway portion of the One Hundred Year Floodplain of the Chippewa River. The One Hundred Year Flood elevation was reevaluated and determined to be at seven eighty point eight (780.8) N.G.V.D. for this particular lot. In addition, that report indicated that the One Hundred Year Flood would result in flowing water through the site at depths of approximately two feet above the elevation of the existing building site. Based on that information, the Department of Natural Resources found that the proposed project would be in conflict with the Flood Plain Regulatory Act, Act 245, Public Acts 1929 as amended by Act 167, P.A. 1968, and denied the application for permit by letter dated July 6, 1989. It was the opinion of the Department that issuing a permit would result in both habitation of the floodway and cause harmful interference with stage and discharge characteristics of the Chippewa River.

Petitioner contests the Department's denial of the latter application and posits two arguments in support of its position. First, that the Department of Natural Resources had no authority to place an expiration date on the 1984 permit and, therefore, that permit is still valid. Secondly, that the proposed project will not substantially invade the floodway nor harmfully interfere with either the stage or discharge characteristics of the Chippewa River and will, in fact, only minimally impact on those considerations due to existing structures as well as the topography of the area. In support of that, the petitioner presented the report and testimony of Ruddell Engineering Inc. which will be discussed in detail later.

As to the first issue, there appears to be no guidance in either the enabling statutes or the Administrative Procedures Act. The A.P.A. contains very detailed and specific requirements and limitations as to the promulgation of rules and guidelines. However, a permit of this nature is neither of those pursuant to the definitions in Section 24 207 pertaining to rules and 24 204 pertaining to guidelines. The Inland Lake and Streams Act, (M.C.L.A. 281.958) states that a permit issued thereunder is valid until revoked or by its term. However, there is nothing in the Floodplain Regulatory Act addressing the expiration or time limitation on a permit issued thereunder. Similarly, there is nothing which appears to prohibit or proscribe any expiration date on the permit. The placement of an expiration date appears to have a valid purpose in that, obviously, the situation as to the topography and building in the area could change substantially in the future which could render the proposed project, although permissible at the time of the issuance of the permit, impermissible in that the Act establishes criteria of the proposed project, not only alone, but in combination with other installations in the area.

Additionally, the petitioner did not request an extension or contest the expiration date until well after it had expired. Therefore, I find that the 1984 permit did expire by its own terms which were validly placed thereon and that the new application should stand on its own merits. It is, therefore, necessary to, analyze the evidence in light of the criteria for determining permissibility of encroachments outlined in Regulation 323.1315. That rule, as it pertains to this situation, states under Section 1

"An encroachment in the floodway which, acting alone or in combination with existing or future similar works, may cause harmful interference shall not be approved. In making this determination, an analysis shall be made for a range of discharge up to and including the one hundred year flood discharge modified to reflect changes in land use and development reasonably anticipated to occur within the watershed before the year 2000."

In Section 3

"An encroachment in the floodplain, landward of the floodway limits, which, acting alone or in combination with existing or future similar works does not cause harmful interference may be permitted."

Rule 323.1311 defines "flooding" and "floodplace" as follows:

"(g) - "floodway" means the channel of a river or stream and those portions of the floodplain adjoining the channel which are reasonably required to carry and discharge a 100 year-flood.

(f) - "floodplain" means the area of land adjoining a river or stream which will be inundated by a 100 year flood."

Differentiating between an encroachment in the floodway and the floodplain, an encroachment in the floodway cannot be permitted if it may in of itself or combination with other existing or future works, cause harmful interference. As to an encroachment in the floodplain, if it is proven that it does not cause harmful interference, it may be permitted. Therefore, even if there is a possibility that there may be harmful interference in the floodway, it cannot be permitted while it may be permitted in the floodplain if it does not, in fact, cause harmful interference even though assumedly, the possibility for interference might exist. It, therefore, becomes important to determine factually whether the proposed project would merely encroach on the floodplain or would invade the floodway of the Chippewa River.

Two witnesses addressed this in their testimony and two exhibits were entered relative to that. The two exhibits are, respectively, joint exhibit 5 which is a hydraulic report prepared by Ruddell Engineering in 1977 and the second is Respondent's Exhibit C which is a detailed staff report from the Department of Natural Resources prepared and authored by Luis Saldivia. Both of the preparers of these reports, William Ruddell and Mr. Saldivia, testified and amplified and explained the details and findings of their respective reports. A third exhibit is pertinent to that being in the Michigan Flood Hazard Mitigation Plan (Respondent's Exhibit A). Mr. William B. Ruddell is a self-employed professional engineer and registered land surveyor with a Bachelor's Degree in Civil Engineering from Michigan Tech in 1964. He testified to considerable practical experience in his field and a familiarity with the Chippewa River in the Mr. Pleasant area. The report was prepared relative to the proposed development of Hiawatha Hills. He had previously done other subdivision work on two down stream areas and two upstream, all of which involved floodplain analysis. In order to make a determination of the floodplain, he obtained information relative to the flow from the Department of Natural Resources. This was a general inquiry, not relative to specific permits on specific lots. He determined the floodplain to be an elevation of seven hundred seventy nine point five (779.5) feet and that the proposed elevation of the project to be seven hundred eighty-one point six (781.6) feet. The One Hundred Year Flood Elevation was calculated to be seven hundred eighty point five (780.5) feet which would place the proposed project approximately one foot higher than the flood elevation. After all of these calculations and further elevations on the respective lots, he determined the net effect to be a rise in the flow of plus or minus six inches. He frankly testified that there are a number of factors and variables and that it is not possible to determine this figure precisely. Based on these calculation, his conclusion is that the proposal would not increase substantially the flood stage and that there would basically be no change of the characteristics. He also testified that the 1986 Flood Hazard Mitigation Plan (Respondent's Exhibit A) verified these considerations. He testified that he personally had gone out and observed the 1986 flood and had viewed lot 41 which he described as brush covered. He stated that if a residence is placed thereon, assumedly the brush would be removed which would increase the flow of water through the lot. This could possibly lower the increased flood elevation to less that six inches. Addressing the floodway, he stated that the range of deviation could be from ten to twenty feet and admitted, based on that, that assuming a building elevation of seven eighty point five (780.5) feet that the garage could possibly be in the floodway but that most of the residence would not be.

Mr. Daniel Morgan testified on behalf of the Department of Natural Resources as to the administrative process and review and commented that subsequent to the 1986 flood disaster, that the Department now takes a more careful look at proposed flood plain projects. This seems to be justified in that my review of Respondent's Exhibit A indicates that an initial estimate of the One Hundred Year Flood Flow was revised upwardly from six thousand one hundred fifty (6,150) cubic feet per second to six thousand seven hundred seventy (6,770) cubic feet per second based on the analysis during and after the flood. Mr. Luis Saldivia, as stated, testified and submitted his report. He has a Bachelor's Degree in Mechanical Engineering from the University of Toledo with a major in Fluid Mechanics, a Master's Degree from Michigan State University and is a Civil Engineer involved in hydraulics and fluid mechanics. He has been employed by the State of Michigan for approximately three and one half years as an Environmental Engineer. He reviewed the permit application, as he has done in some seven hundred cases, for the determination of the floodplain, hydraulic information and the floodway. He reviewed the Ruddell report, existing floodplain information and the information formulated from the 1986 flood. He utilized the U.S. Army Corps of Engineers Flood Computer Model and performed four to five different runs through the computer. Of particular interest was run number three which was utilized to define the floodway, again by the Corps of Engineers methodology. After all this analysis, he determined that there might be a three tenths of a foot increase in the flood stage which, he admitted, substantially agreed with Mr. Ruddell's testimony and his report. Based on the One Hundred Year Flood Elevation of 780.8, he determined that the lot and the proposed project would be in the floodway and that the depth of the flow through the site could be plus or minus two feet above ground elevation. The water would come through at a velocity of eight feet per second. Based on this, as stated, he made a determination that the proposed project on lot 41 would be located in the floodway and that, therefore, it should not be permitted. The data and the conclusions of both experts are essentially the same but for the extent of which the proposed project would come within the floodway. As stated, Mr. Saldivia found essentially the whole project to be within the floodway while Mr. Ruddell stated that perhaps the garage or at most half of the house would be so located. However, by anyone's testimony, the proposed project would be at least partially in the floodway. As to the impact of surrounding areas, both experts agreed that the project would probably impact the home next door plus or minus three and one half inches, again based on One Hundred Year Flood considerations. Further testimony indicated that if the project is in the floodway, the risk would include inundation, limitation of ingress and egress for evacuation purposes, hydrostatic pressure exerted on the lateral support and fill and soil.

I therefore find as a matter of fact that, under any analysis, the proposed home would at the very least partially and possibly substantially be within the floodway and the matter should, therefore, be reviewed in light of the consideration of whether or not the proposal may cause harmful interference either in or of itself or in combination with other existing or future works. Based on the above considerations, there is no question that the possibility exists that there could be harmful interference and therefore the project should not be permitted under Regulation 323.1315, Section 1, as previously quoted.

It is therefore proposed that the Natural Resources Commission uphold the Department denial of the permit.

Richard A. Patterson

Administrative Law Judge

Dated: March 17, 1992

Petitioner # 1 - Inter-office communication dated 3/23/84

Respondents A - Michigan Flood Hazard Mitigation Plan (September 1986 Flood Disaster)

Respondents C - Report of Luis Saldivia

Joint Exhibit 1 - Letter dated November 4, 1977 by Gary Bondeson to William B. Ruddell

Joint Exhibit 2 - Application for Permit dated 3/20/89

Joint Exhibit 3 - Public Notice dated 4/10/89

Joint Exhibit 4 - Department of Public Health letter regarding application

Joint Exhibit 5 - Hydraulic Report of Ruddell Engineering, Inc.

Joint Exhibit 6 - Quadrangle map of Mt. Pleasant area

Joint Exhibit 7 - Letter dated July 6, 1989 by Daniel H. Morgan to Mr. Robert M. Heydenburg

Joint Exhibit 8 - Site photographs

Joint Exhibit 9 - Plat of Hiawatha Hills

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