IN RE: Goemaere-Anderson Wetland Protection Act 203 and
the Inland Lakes & Streams Act 346
Petition of Eugene Hindbaugh
File No. 90-13-386
____________________________________________________________

This contested case involves the denial of an application for a permit to construct a drainage ditch in an area classified by the Michigan Department of Natural Resources as a wetland. The application, filed October 15, 1990, was denied under the provisions of the Goemaere-Anderson Wetland Protection Act and the Inland Lakes & Streams Act. Eugene Hindbaugh requested a hearing pursuant to the Acts. A hearing was held in this matter on January 4, 1995.

This matter was brought under the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, as amended; MCL 281.701, et seq; MSA 18.595 (51) et seq, and the Inland Lakes & Streams Act, 1972 PA 346, as amended; MCL 281.951, et seq; MSA 11.475 (1), et seq; and the rules promulgated under the Acts. The hearing was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq; MSA 3.560 (101).

Eugene Hindbaugh is the applicant for a permit pursuant to the Acts and is the Petitioner in this case. The professional staff of the Michigan Department of Natural Resources is charged with the day-to-day implementation of the Goemaere-Anderson Wetland Protection Act and the Inland Lakes & Streams Act, and is the Respondent in this case. The Petitioner represented himself throughout the course of the proceedings. The Respondent was represented by Albert Massey, Region III Supervisor, Land and Water Management Division.

The Petitioner testified on his own behalf. The Respondent presented one witness, Rick Schram, Michigan Department of Natural Resources, Land and Water Management Division.

Twenty one exhibits were entered into the record. A list and description of exhibits is attached to this Proposal For Decision.

The Petitioner is the owner of property located in Augusta Township, Washtenaw County, Michigan. The proposed project would affect nine properties along Talladay Road (Road), some of which are undeveloped. Exhibit P-7. Mr. Hindbaugh and his neighbors own parcels that are 5 to 10 acres in size and a minimum of 600 feet deep. The houses are all within 200 feet of the Road, except one house which is 800 feet from the Road and would not be impacted by the proposed project. The parcels are upland near the Road and slope down to a wetland behind the houses. The Petitioner and his neighbors experience seasonal flooding as water builds up in the wetland. To alleviate this seasonal water problem, Mr. Hindbaugh's application requests permission to excavate a 1,500 foot ditch. This ditch would be located behind the houses with an easterly flow and outlet to Paint Creek. The proposed project was reviewed and public noticed under the Inland Lakes and Streams Act. Exhibit R-1. The application was denied and Mr. Hindbaugh filed a petition for a contested case hearing. Exhibit R-7. The Parties stipulated the original application was properly denied.

After the denial, the Petitioner proposed an alternative plan which entailed excavating a 600 foot ditch in an westerly direction with an outlet to a County drain, Abbott Drain. The Abbott Drain is not a stream regulated by the Inland Lakes and Streams Act. Therefore, the merits of Mr. Hindbaugh's application is judged solely on the standards found in the Wetland Protection Act. The Petitioner asserts the alternative plan would alleviate seasonal flooding the property owners are experiencing. This alternative proposal is the subject of this Proposal For Decision.

FINDINGS OF FACT

The first issue presented is whether or not the subject property is a wetland as defined by the Act. Wetland is defined in Section 2(g) as:

Wetland means 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 . . ..

A determination that a property is or is not a wetland is

indicated by three criteria: See, 1988 AACS, R 281.924(2)(a) and (b).

1) The type of vegetation,

2) The soil characteristics, and

3) Hydrological indicators for water.

The Parties stipulated the site is a wetland as defined in Act 203. Mr. Schram testified he visited the site two to three times since the application. He observed a forested wetland, with pockets of scrub/shrub vegetation, saturated soils and varying degrees of upland and swales. I find, as a Matter of Fact, based on the stipulation of the Parties and the testimony of Mr. Schram, the area proposed for excavation of the ditch is a wetland pursuant to Act 203.

The second issue is whether this wetland parcel is subject to regulation under the Act. Subsection (g)(i) of Section 2, MCL 281.702(g)(i), provides criteria which must be found before the Department may regulate a wetland.

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

(ii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and more than 5 acres in size; except this subdivision shall not be of effect, except for the purpose of inventory, in counties of less than 100,000 population until the department certifies to the commission of natural resources it has substantially completed its inventory of wetlands in that county.

The Parties stipulated the wetland is regulated pursuant to the Act.

Section 5, MCL 281.705, prohibits the deposit or placing of fill in a regulated wetland without the benefit of a permit from the Department. To issue a permit for the fill requested by the Petitioner, the criteria of Section 9 of the Act, MCL 281.709, must be considered.

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 enumerated in Act 203. These criteria are found in Section 9(2) as follows:

(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.

The Petitioner and his neighbor's need for the ditch is of a private nature. Mr. Hindbaugh testified the proposed activity would alleviate some seasonal flooding on the subject properties. He stated he does not intend to drain the entire wetland, but only to drain enough water to relieve the seasonal flooding problem. Mr. Schram performed a site investigation on the alternative ditch. He found the Petitioner had constructed a ditch through his upland to and under Talladay Road, which outlets to a county drain on the opposite side of the Road. Mr. Hindbaugh admits this ditch has solved his and his immediate neighbor's water problems. There is presently no threat to the developed portions of these two properties. However, the Petitioner has plans to build another residence and a barn behind the existing house and believes the seasonal flooding would hinder this proposed project. Mr. Hindbaugh did not offer testimony as to the specific plans or location for these buildings. I find, the Petitioner's private need for the proposed project is not immediate because the existing development on his parcel is protected. There is a public need to curtail flooding which may damage private property. The developed portion of the Petitioner's parcel is no longer threatened by seasonal flooding. I find, as a Matter of Fact, the public need for the proposed activity is negligible.

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

The activity proposed in the initial application was the construction of a ditch approximately 1,500 feet long with an outlet to Paint Creek. The alternative plan advanced by the Petitioner consists of routing drainage through existing swales in the wetland 600 feet to the east and into the Abbott Drain. Exhibit R-5. Mr. Hindbaugh testified this proposed project would resemble a grass waterway. Mr. Schram testified the Abbott Drain could not serve as an outlet for the ditch because it is filled with silt. The Petitioner stated he will make a request to the county drain commissioner to have the Drain cleaned out. Mr. Hindbaugh testified the existing ditch effectively drains the seasonal high water which encroaches on the developed portion of his parcel. Mr. Schram testified this type of drain is available to the other property owners along Talladay Road.

Mr. Hindbaugh testified the ditch presently draining his parcel is not a feasible and prudent alternative to the proposed activity. First, it does not correct high water problems where he proposes to build another house and a barn. Second, the existing ditch is in his front yard and is not aesthetically pleasing. Third, this type of ditch is costly because a culvert must be set under Talladay Road to get the water to the county drain. Mr. Hindbaugh's upland ditch cost between $2,500 and $3,000. Mr. Hindbaugh offered no cost estimate for the Abbott Drain alternative, nor was a survey conducted to determine if this alternative would solve the high water problem. Further, Mr. Schram testified the Abbott Drain could not serve as an outlet for the ditch because it is filled with silt. No evidence was offered showing the County was willing to undertake a project to clean the drain. Mr. Hindbaugh has no immediate plans to build another house and barn on his parcel. I find, as a Matter of Fact, a feasible and prudent alternative method to the proposed activity is available. Namely, the construction of drainage ditches on the upland portions of the properties, as Mr. Hindbaugh has done.

(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.

The Petitioner's proposed activity, a 600 foot ditch to the Abbott Drain, will not, according to Mr. Hindbaugh, drain the entire wetland but only drain seasonal high water. Without a survey to determine how the area will drain and how much wetland will be impacted, it is impossible to determine the beneficial or detrimental effects of the proposed project.

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

Mr. Hindbaugh testified he considered development in the area to be slow. Approximately 4 or 5 new homes have been built in the area since the initial application and he plans to build another residence and a barn on his lot in the future. There was no testimony regarding other existing or 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.

There was no testimony the proposed activity would impact any recognized historic, cultural, scenic, ecological or recreational values, public health or fish or wildlife.

(f) The size of the wetland being considered.

Mr. Schram testified the project area encompassed approximately 45 to 50 acres of wetland. He did not inspect the entire wetland complex, but stated it is an area greater than the project area.

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

If the ditch to the Abbott Drain is constructed, the entire wetland complex may be effected. Without a survey, it is impossible to determine the amount of wetland which would remain.

(h) Proximity to any waterway.

Paint Creek is approximately one-quarter of a mile from the proposed activity.

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

Mr. Hindbaugh testified the seasonal high water impacts his garden and shrubs, but did not offer an economic value to this occurrence. The Petitioner and his neighbors have been able to construct residences in the subject area. No testimony was offered regarding any other private or public economic value of the proposed activity.

After considering each of the above criteria, Act 203 requires a balancing of the benefits against the detriments to determine if the activity is in the public interest. In balancing these criteria, I find as a Matter of Fact, the proposed project is not in the public interest.

Section 9(1) also requires a determination as to whether the permit is necessary to realize the benefits derived from the activity. The benefit derived from the proposed activity is the alleviation of seasonal high water. I find, as a Matter of Fact, the permit as requested is not necessary to realize the benefits derived from the proposed activity because a feasible and prudent alternative is available in the upland.

Section 9(1) requires a third determination; whether the proposed activity is otherwise lawful. I find, as a Matter of Fact, the proposed project is otherwise lawful.

Sec. 9(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 finding of necessity made by other state agencies.

Sec. 9(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.

(a) The proposed activity is primarily dependent upon being located in the wetland.

(b) A feasible and prudent alternative does not exist.

Based on the previous Findings of Fact, without a survey of the wetland and proposed ditch it is impossible to determine whether an unacceptable disruption would result to the aquatic resources.

I find, as a Matter of Fact, the proposed activity is not primarily dependent upon being located in the wetland. The Petitioner has an upland alternative which has eliminated seasonal water problems around his house.

I find, as a Matter of Fact, the Petitioner does have a feasible and prudent alternative to the proposed activity. Namely, the upland ditch he constructed alleviates the seasonal high water problems on the developed portion of his parcel.

1. The subject property is a wetland which is a regulated wetland and a permit is required, pursuant to Section 5(a) and (b) of the Act.

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

3. I conclude, as a Matter of Law, the proposed project is not wetland dependent.

4. I conclude, as a Matter of Law, there is a feasible and prudent alternative to the proposed project.

Based on the Findings of Fact and Conclusions of Law, it is proposed the Petitioner's application for the construction of a 600 foot ditch to Abbott Drain, be denied.

Dated: April 18, 1995

Richard G. Lacasse
Administrative Law Judge

April 18, 1995

Mr. Eugene Hindbaugh Mr. Albert Massey, Supervisor

2750 Taylor Road Region III Headquarters, LWMD

Kalamazoo, Michigan 49002 P.O. Box 30028

Lansing, Michigan 48909

RE: Goemaere-Anderson Wetland Protection Act [203] and the Inland Lakes and Streams Act [346] Petition of

Eugene Hindbaugh

File No. 90-13-386

Gentlemen:

Enclosed is the Proposal For Decision which has been submitted to the Natural Resources Commission in the above captioned matter. Pursuant to Section 81 of the Administrative Procedures Act, this decision will become final unless exceptions are filed by a party. Accordingly, the Proposal For Decision will become the Final Decision in this matter unless you file, at the Office of the Commission, written exceptions and written argument by May 17, 1995. If no exceptions are filed and the Commission does not undertake review, the date of the Final Decision will be June 8, 1995, and the time for appeal will run from that date. If you do not wish to file exceptions, a notice to that effect would be appreciated. You must send copies of all filings to the other parties.

Commission review will be restricted to the record made at the hearing and the exceptions and arguments raised by the parties in their exceptions. Issues not raised in the written exceptions will not be considered by the Commission. No new evidence or exhibits will be accepted, but the exhibits introduced at the hearing will be available. Legal argument not raised at the hearing shall not be raised before the Commission. Please take care not to misrepresent the record or to refer to facts not in evidence.

Findings of Fact--Please identify any specific findings of fact in the Proposal For Decision with which you take exception. Identify the evidence from the record which supports your view.

If you believe that the other factual findings should have been made, specifically identify the evidence from the record which supports your view. Please use exhibit numbers and witness names when referring to the record.

Conclusions of Law--Please state any specific conclusions of law with which you take exception and the basis for your exception. If you believe any other conclusions of law should have been reached, please submit them in writing and identify the basis in the record and the arguments which would sustain the proposed conclusion.

Policy, Discretion, or Judgement--If you believe the decision rests upon the Commission's exercise of its discretion or judgement under the statutes and rules, or that policy development is at issue, state the manner in which you believe that discretion or judgment should be exercised by the Commission and the policy considerations which you believe are appropriate. Identify the considerations in light of the factors in the relevant statutes and rules.

Decision--Please state the specific decision which you propose the Commission should make.

Oral Argument--Oral argument will only take place with the Commission's approval. Please include any request for oral argument with your exceptions. You may not make oral argument unless you submit specific written exceptions and written argument in support of those exceptions. If oral argument is approved, you will be notified of the time allotted for oral argument in your case.

Responsive Pleadings--responses to the exceptions filed by the parties are permitted only in unusual circumstances and only with the approval of the Commission.

Ex Parte Contact--Direct contact with any member of the Commission by a party, a party's attorney, or any other person on behalf of a party regarding the merits of a case pending Commission review is improper and will be treated as an adequate basis for a decision adverse to that party.

Date of Commission Review--This matter will come before the Commission for final disposition on June 8, 1995, during its monthly meeting. The meeting will be held at the Bay Valley Hotel, 2470 Old Bridge Road, Bay City, Michigan.

Should you have any questions, please contact Karen Scott, Commission Secretary at (517) 373-2352 or by mail, Executive Division, Michigan Department of Natural Resources, Stevens T. Mason Building, P.O. Box 30028, Lansing, Michigan 48909.

Very truly yours,

Richard G. Lacasse
Administrative Law Judge
RGL/ih
Enclosure

c: William C. Larsen, Rivers, Lakes and Streams Protection Unit, Land & Water Management Division, Michigan Department of Natural Resources, P.O. Box 30028, Lansing, Michigan 48909

RE: Goemaere-Anderson Wetland Protection Act [203] and the Inland Lakes & Streams Act [346] Petition of Eugene Hindbaugh
File No. 90-13-386

PETITIONER'S EXHIBITS
P-1 Application for Permit dated September 28, 1990.
P-2 Correspondence from Rick Schram, MDNR, to Eugene Hindbaugh regarding Wetland Determination.
Dated December 3, 1990.
P-3 Correspondence from Rick Schram, MDNR, to Eugene Hindbaugh denying permit for proposed activity.  Dated February 13, 1991.
P-4 Correspondence from William C. Larsen, MDNR, to Eugene Hindbaugh acknowledging receipt of contested case materials and requesting additional information. Dated February 26, 1991.
P-5 Correspondence from Office of Administrative Hearings to Eugene Hindbaugh acknowledging the initiation of the contested case process. Dated March 19, 1991.
P-6 Correspondence from Eugene Hindbaugh to Rick Schram proposing an alternative plan to the initial permit application. Dated August 6, 1991.
P-7 List of Property Owners.
P-8 Correspondence from the Office of Administrative Hearings to Eugene Hindbaugh relating status of contested case. Dated April 22, 1992.
P-9 Correspondence from the Office of Administrative Hearings to Eugene Hindbaugh requesting the filing of a pre-hearing statement.  Dated July 7, 1993.
P-10 Correspondence from the Office of Administrative Hearings to Eugene Hindbaugh setting the date for the pre-hearing conference. Dated August 16, 1994.
P-11 Aerial Photograph of subject property and Map of drains in Augusta Township.
P-12 Eight color photographs of houses affected by the proposed activity.
P-13 Map of houses, with street addresses, depicted in Exhibit P-12. Prepared by Petitioner at hearing.

RESPONDENTS' EXHIBITS

R-1 Public Notice dated December 10, 1990.
R-2 Project Review Report dated February 13, 1991.
R-3 Copy of Aerial Map with the proposed project shown in red and copy of the Washtenaw Soil Survey describing Granby Series soil.
R-4 Copy of Augusta Township Drains with the site marked in red.
R-5 Copy of Aerial Map with the following sites marked in color: Red= Original proposed ditch, Green= 2nd proposed ditch, Green= New ditch, Blue= Abbott drain, Blue= Paint Creek. Wetland Complex is shown in cross- hatched.
R-6 Washtenaw County Soil Conservation District response to Public Notice citing four deficiencies in the proposed permit application plan. Dated December 21, 1990.
R-7 Correspondence from Rick Schram, MDNR, to Eugene Hindbaugh denying permit for proposed activity. Dated February 13, 1991.
R-8 Notes of site inspection by Rick Schram. Dated September 8, 1993.

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IN RE: Goemaere-Anderson Wetland Protection Act [203] and the Inland Lakes & Streams Act [346] Petition of

Eugene Hindbaugh

File No. 90-13-386

April 18, 1995

Richard G. Lacasse

Administrative Law Judge