IN THE MATTER OF:

PETITION OF LLOYD AND DONNA KERNEN )
ON HOMESTEAD ESTATES MOBILE HOME )
PARK NPDES PERMIT NO. MI 0050181 )

At a session of the Department of Natural Resources -- Office of Administrative Hearings held at Lansing, Michigan, on July 7, 1995, Honorable Richard G. Lacasse, Chief Administrative Law Judge Presiding

WHEREAS the above-entitled matter has been the subject of a contested case hearing resulting in a Proposal For Decision dated April 20, 1994, and is now before the Office of Administrative Hearings - Chief Administrative Law Judge for review and decision, and

WHEREAS the Parties filed exceptions to the Proposal For Decision and were provided an opportunity for oral argument on June 29, 1995, and

WHEREAS the Chief Administrative Law Judge of the Office of Administrative Hearings has considered the Proposal For Decision as well as appropriate exhibits, transcripts, submissions and arguments of the Parties, and

WHEREAS the Parties agree the Proposal For Decision does not properly describe the location of the wastewater discharge point, and, therefore, it shall be modified as follows: The point of discharge is to a stream on the Homestead property, north of Holly Road, alternatively referred to as the "Channel Wetland" or the "Receiving Wetland", and

WHEREAS the Parties agree the Proposal For Decision does not properly describe the Kernen Property. The Kernen property does not "surround Lacey Lake" as indicated on pages 1 and 2 of the Proposal For Decision. The description of the Kernen property found in Petitioners' exhibit PX-1 is hereby adopted by reference as the correct description of the Kernen Property, and

WHEREAS the Respondent asserts the Proposal For Decision mischaracterizes Dr. Kadlec's experience in research projects on channelization in cattail wetlands involving wastewater discharge flow rates. The trial transcript states Dr. Kadlec's research experience includes wastewater discharge rates 1/4 to 1/2 to over 1,000 times the wastewater discharge rate of Homestead's discharge. This testimony is hereby adopted by reference, and

WHEREAS the Chief Administrative Law Judge of the Office of Administrative Hearings ACCEPTS the Proposal For Decision dated April 20, 1994, with the exceptions provided in this Final Order.

NOW, THEREFORE, IT IS ORDERED the Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS and incorporates the attached Proposal For Decision dated April 20, 1994, including the findings of fact and conclusions of law as modified herein, and therefore, it is determined NPDES permit No. MI0050181 is in full force and effect.

DATE: July 7, 1995. __________________________________________

Richard G. Lacasse
Chief Administrative Law Judge
Office of Administrative Hearings

IN THE MATTER OF :
APPEAL OF LLOYD AND DONNA KERNEN
HOMESTEAD ESTATES MOBILE HOME PARK
NPDES PERMIT NO. MI 0050181

Richard A. Patterson
Administrative Law Judge
April 20, 1994

This matter is a contested case concerning a National Pollutant Discharge Elimination System (NPDES) permit issued to Homestead Development (Homestead).

The hearing was conducted pursuant to 1929 PA 245, the Michigan Water Resources Commission Act, and Rule 25, (R. 323.1025 [1]).

The professional staff of the Department of Natural Resources is charged with the day-to-day implementation of the Water Resource Commission Act. Lloyd and Donna Kernen (Petitioners) filed for a contested case hearing pursuant to the act.

This case involves property located in Holly Township, Oakland County, Michigan approximately one and one half (1 1/2) miles east of the Village of Holly, transected by Holly Road, between Falk and Tucker Roads. The property upon which Homestead proposes to construct a mobil home park is outlined in orange on the USGS map of Holly Township (Def. Exhibit 1). It is intended that the discharge from the proposed on-site sewage treatment facility will be to a channelized area immediately south of the above named tract. This tract is owned by Petitioners and is bounded by Holly Road on the north and by uplands to the east and west. There is a lack of a well defined boundary to the south, as the property borders and surrounds Lacey Lake. This property consists of approximately twenty-eight (28) acres of wetland which drain southward to Lacey Lake. The travel distance from the point of discharge to Lacey Lake is one thousand nine hundred (1900) feet with an elevation change of approximately six (6) feet. The permit authorizes the discharge of up to 166,000 gallons per day of treated sewage, from a proposed mobile home park to be built on Homestead's property.

Lloyd and Donna Kernen filed a Petition For Contested Case Hearing arising as a result of the issuance, by the former Water Resources Commission (WRC), of NPDES Permit No. MI 0050181 on October 15, 1992 to Homestead Development (Homestead). The petition for contested case hearing contained five allegations: (1) the Permit illegally authorized a trespass over Petitioner's land; (2) the discharge will cause pollution, impairment or destruction of groundwater, surface waters and land; (3) the permit was issued in violation of the Wetlands Protection Act, 1979 PA 203, MCL, 281.70; (4) the Permit was issued without the necessary hydrogeologic study, in violation of R 323.2207; and (5) the permit would allow the degradation of water quality, in violation of the anti-degradation rule, R 323.1098.

Following a Motion for Partial Summary Disposition filed by Respondent, Homestead, the undersigned granted the Motion as to three issues. These issues are: (1) There is no jurisdiction over the trespass issue, as that is a private civil matter, which must be addressed in a forum outside of the contested case hearing, pursuant to the MAPA; (2) The discharge of effluent does not constitute a use or development of a wetland and, therefore, the Goemaere-Anderson Wetland Protection Act is inapplicable; and (3) The discharge is a surface water discharge and, therefore, a Part 22 groundwater permit hydrogeologic study is unnecessary.

The case is confined to the issues of whether the discharge will cause pollution, impairment or destruction of groundwater, surface waters or land, and whether the discharge would degrade water quality, in violation of Anti-Degradation Rule, R. 323.1098. The contested case hearing took place over six days, on August 24, 25, 26 and 27 and September 14 and 16, 1993. For their case in chief, Petitioners called two witnesses, Lloyd Kernen and Peter Collins, and introduced the deposition of one witness, Dr. Henry M. Runke. The applicant called four witnesses, Dr. Robert Kadlec, Michael Wilczynski, Gerald Miner, and Donald Lund. The Michigan Department of Natural Resources (MDNR) called two witnesses, Daniel Dell of the Surface Water Quality Division, and Steven Sadewasser, of the Land and Water Management Division. Petitioners called Dr. Runke as a rebuttal witness. The applicant called Dr. Kadlec in surrebuttal.

At the conclusion of the hearing, Counsel for the Petitioners, Respondent Homestead and the Department, filed Proposed Findings of Fact, which have been utilized so far as they accurately reflect the facts in light of the testimony produced during the hearing.

Homestead submitted a WRC Municipal Wastewater Discharge Application that was received by the Michigan Department of Natural Resources (MDNR) Surface Water Quality Division (SWQD) Permits Section, on March 11, 1991 (State Exhibit No 1). A review of the application to determine if it was administratively complete raised concerns with the Permits Section staff that more information would be necessary to address WRC Rule 98 (R 323.1098); Antidegradation (Vol 5, 9/14/93, page 579 at 13-18). Discharge Rule 98 does not allow a degrading of the water quality unless conditions are met so the designated uses, set forth in WRC Rule 100 (R 323.1100), will be protected in the receiving water, and the discharge is not unreasonable and against the public interest in view of existing conditions (Vol 5, 9/14/93, page 554 at 13-19).

A meeting was arranged in April 1991 between the applicant, the MDNR, and the Village of Holly to discuss the potential connection of the mobile home park to the Village of Holly's Wastewater Treatment Plant (WWTP), in lieu of permitting a new discharge. At that point, the discharge was anticipated to a to be released into a wetland on the Homestead premises. (Vol 5, 9/14/93, page 579 at 20-23). Representatives from the Village of Holly indicated that there was not sufficient capacity at the Holly WWTP to accommodate the waste from a mobile home park of the size proposed (Vol 5, 9/14/93, page 580 at 18-20). That being the case, the MDNR advised the applicant that an independent evaluation of the wetland on the Homestead property should be performed to supplement the application, to assess the suitability of the on-site wetland as a point of discharge (Vol 5, 91/4/93, page 585 at 21-25).

Subsequently, the SWQD received a document entitled "Wetlands and Wastewater: An assessment of the Wetland Impacts of the Proposed Discharge," prepared by Dr. Robert Kadlec, July 1991 (Vol 5, 9/14/93, page 586 at 4-9). A copy was sent to the MDNR Land and Water Management Division (LWMD), Wetland Protection Unit, for review and comment by the Department's wetland protection program experts (Vol 5, 9/14/93, page 586 at 11-19); State Exhibit No 5).

Concerns were raised by MDNR based on the proposed discharge to the wetland on property owned by Homestead (hereafter the "Miner" Wetland); - Gerald Miner is the general partner of applicant Homestead). Available information indicated there was a vegetative structure and plant diversity in existence that would be disturbed and degraded from the discharge as it was being proposed. Intra-Departmental discussions followed, resulting in a suggestion to explore alternative discharge locations. Locations south of Holly Road were suggested as potentially less impacting wetland discharge points (State Exhibits Nos 5 & 15 Vol 5, 9/14/93, page 632 at 2-8, page 607 at 9-25 cont page 608 at 1-11). The wetland area south of Holly Road was understood to be a predominately cattail monotype emergent marsh, already in a condition described as degraded when compared to a diverse wet meadow having a complex association of plant types on the Miner wetland (Vol 5, 9/14/93, page 634 at 9-14).

A meeting with the Applicant was held April 16, 1992, to discuss minimizing impacts by moving the discharge location (Vol 5, 9/14/93, page 607 at 9-15 cont page 606 at 1-11). Relocation of the discharge to the channelized area south of the Miner wetland was proposed (Vol 5, 9/14/93, page 609 at 14-19). The LWMD staff concurred the new discharge location adequately addressed concerns regarding the reduction of potential wetland impacts from the expected wastewater discharge (State Exhibit No 7, Vol 5, 9/14/93, page 609 at 22-25 cont page 610 at 1-14).

Coinciding with the review of the wetland impacts, the processing of the permit application proceeded. Intra-Division discussion occurred on the impacts of the Homestead Estates discharge to the receiving waters (Vol 5, 9/14/93, page 564 at 7-16, pate 572 at 6-25 cont page 573 at 1-12). An analysis was performed by Mr. William Creal, an aquatic biologist, Chief of the Water Quality Unit of the Great Lakes Environmental Assessment Section, giving a rough estimate of the total loading from the mobile home park, he indicated the loading did not appear to be problematical. Mr. Creal's Unit is responsible for recommendations for total phosphorus limits in NPDES permits (Vol 5, 9/14/93, page 573 at 1-19). An Intra-Division memo was prepared April 23, 1992, by the Permits Section, requesting review of the impacts of the proposed discharge from the Great Lakes Environmental Assessment Section and the Planning and Special Programs Section (State Exhibit No. 2, Vol 5, 9/14/93, page 565 at 8-10). Effluent limitations were proposed that were expected to meet water quality standards at the point of discharge (Vol 5, 9/14/93, page 568 at 17-19). The review of the Planning and Special Programs Section indicated that because of the effluent quality they did not require additional information or need further review under the Water Quality Based Effluent Limit (WQBEL) development process for biological oxygen demand (BOD) and ammonia nitrogen (State Exhibit No 8, Vol 5, 9/14/93, page 571 at 9-25 cont page 572 at 1-5, and page 566 at 19-21). The review completed by the Great Lakes and Environmental Assessment Section indicated they agreed the proposed effluent quality would meet water quality standards and did not require further review under the WQBEL development process for phosphorus limitations (State Exhibit no 3, Vol 5, 9/14/93 page 570 at 18-25 cont page 571 at 1-8, and page 566 at 16-18).

The phosphorus limitation of 0.5 milligrams per liter was expected to be protective of the designated uses for Lacey Lake and other downstream impoundments and lakes on the Shiawassee River (Vol 5, 9/14/93, page 661 at 11-15). The phosphorus limitation of 0.5 milligrams per liter is more restrictive than the majority of wastewater treatment plant permits issued (State Exhibit No 1, Vol 5, 9/14/93, page 555 at 17-19). Of the presently permitted 545 municipal wastewater discharges, approximately 140 permitted wastewater stabilization lagoon discharges do not include a phosphorus limitation (Vol 5, 9/14/93, page 562 at 12-20). The wastewater stabilization lagoons serve as treatment facilities for municipal collection systems, mobile home parks, and small industries treating only sanitary wastewater (Vol 5, 9/14/93, page 563 at 2-4).

On May 16, 1992 the MDNR issued a Public Notice of Draft Permit and Public Notice of Public Hearing for the Homestead Estates WWTP draft permit (State Exhibit No 9, (Vol 5, 9/14/93, page 651 at 1-8). A public comment period was established until June 15, 1992, to allow comments from the public or interested parties. Because of the controversial nature of this permit and the significant public interests expressed, a public hearing was noticed at the same time as the public notice for the draft permit (Vol 5, 9/14/93, page 651 at 13-19). The Public Hearing was held June 16, 1992 with more than 100 persons in attendance.

A "Memorandum to the Water Resources Commission Re: Homestead Estates Mobile Home Park Briefing Statement and History" was presented to the Commission at its July, 1992 meeting (State Exhibit No 10 Vol 5, 9/14/93, page 652 at 2-4). The Commission package included correspondence from interested parties who had commented at the public hearing and during the public notice (State Exhibit No 10 Vol 5, 9/14/93, page 652 at 16-11) and a briefing memo, which included a summary of issues presented at the Public Hearing along with Staff responses (State Exhibit No 11, Vol 5, 9/14/93, page 654 at 13-21).

After discussion, the Commission decided to defer action on this permit to allow Staff to discuss, with legal counsel, the "waters-of-the-state issue" that had been raised relative to this project and to allow for a further evaluation of the wetland, into which the effluent would be discharged (hereafter the "Kernen" wetland) (State Exhibit No 11, Vol 5, 9/14/93, page 655 at 14-19).

Subsequent to the WRC meeting the Surface Water Quality Division requested that LWMD Wetland's Protection Unit Staff conduct a further review of the Kernen wetland, including a site visit (Vol 5, 9/14/93, page 611 at 13-17). The SWQD received a document entitled "Commentary On Wetlands Between The Miner Wetland And Lacey Lake" prepared by Dr. Kadlec, August 19, 1992. Surface Water Staff forwarded a copy to Mr. Steven G. Sadewasser, wetland specialist, Land and Water Management Division, for review. A site visit was conducted September 11, 1992, with Mr. Sadewasser, Mr. Alexander McCrae of the SWQD Permits Section, and Mr. Kernen, the property owner (Vol 5, 9/14/93, page 614 at 9-10 and page 615 at 2-3). The purpose of the site visit was to determine the plant communities that would be located within areas of the discharge and, based on that information, to evaluate whether or not an adverse impact to that plant community would be expected (Vol 5, 9/14/93, page 614 at 12-18). There was a concern there might be areas of high diversity, i.e., wet meadow areas and the like, within the wetland that could be impacted by a discharge. The site visit confirmed the area is not highly diverse and not likely to be degraded if a discharge moves through the area (Vol 5, 9/14/93, page 623 at 6-9). Following the site visit, further review of Dr. Kadlec's 1992 report and review of aerial photographs, conclusions were drawn by Mr. Sadewasser. Based upon site review and analysis, it is his expert opinion the proposed discharge will not cause a significant change to the marsh between Holly Road and Lacey Lake (State Exhibit No 15, Vol 5, 9/14/93, page 627 at 11-14). There would be no expected significant qualitative difference related to the plant community and its likely use, recreational use or use by wildlife (Vol 5, 9/14/93, page 646 at 19-22). Based upon his independent review, he concurs with the conclusions of Dr. Kadlec's August 1992 report (Vol 5, 9/14/93, page 629 at 12-19). The issue of phosphorus loading to the wetland was raised to Mr. Sadewasser. He opined that the equilibrium of the Kernen wetland was in a fairly stable state, that the cattail has essentially occupied the wetland and is essentially a monotype; and, finally, if that equilibrium were changed it would not necessarily be a degradation (Vol 5, 9/14/93, page 641 at 4-14). He also opined that the Kernen wetland will tend to bind phosphorus that enters it from the discharge, and much of the binding will be materials deposited into the sediments. The sediments are highly organic and capable of retaining a significant concentration of phosphorus (Vol 5, 9/14/93, page 674 at 8-15).

The "Memorandum to the Michigan Water Resources Commission Re: Homestead Estates Mobile Home Park Briefing Statement and History" was presented to the Commission at its October 15, 1992 meeting (State Exhibit No 12, Vol 5, 9/14/93, page 657 at 4-6). Included with the Commission package was a required non-degradation Statement for the Homestead WWTP. After considerable discussion, the Commission unanimously voted to approve the permit.

Lloyd and Donna Kernen are the owners of property in Holly Township, Oakland County, Michigan, lying south of Holly Road, comprising approximately 54 acres (Exhibit 1, Warranty Deed dated May 7, 1985). The Homestead Property is immediately to the north, across Holly Road. The Kernens purchased the property to build a home and for acreage for their horses and have lived there since 1985.

There are wetlands on the eastern portion of the Kernens' property consisting of approximately 28 acres. According to Mr. Kernen's observations, the wetlands are not wet at all times. They dry out during the summer and freeze over in the winter.

Mr. Kernen testified that he observed no channels in the north part of his wetland, but there is one channel at the south end of the wetland, near Lacey Lake. He has not observed any flow of water through the wetlands, north to south.

There is a culvert underneath Holly Road at the north end of the Kernen wetland. The south end of the culvert is under water. When Mr. Kernen last observed the culvert in the summer of 1993, there was no observable flow of water out of the culvert.

Mr. Kernen has not developed nor does he intend to alter the wetland. He opposes the discharge permit that has been granted to Homestead Development because of concerns that the discharge may alter his wetland and/or Lacey Lake.

Peter Collins testified as an expert on behalf of the Petitioners. Mr. Collins is a principal of Applied Science and Technology in Ann Arbor, Michigan, holds a Masters Degree in Natural Resources and Resource Ecology and has performed pre-doctoral work at the University of Michigan. He has had extensive experience in wetland evaluation and delineation, enhancement, creation and design. He testified in four areas: (a) the probability of groundwater recharge as a result of the sewage treatment plant discharge; (b) the low likelihood of winter nutrient removal in the Kernen wetland; (c) channelization caused by the sewage treatment plant discharge in the Kernen wetland; and (d) cumulative impacts from additive phosphorus amounts.

As to groundwater recharge in the Kernen wetland, he testified consistent with Petitioner's Exhibit 4 (letter dated July 23, 1993) that there is a lack of information from the Applicant to conclude there will be no groundwater recharge. He would expect soil borings in the wetlands to address this concern. There is no record that the applicant supplied soil borings (see Applicant Exhibit 19, letter dated August 20, 1992 from Don Lund to Mark Jacobs). In order to validate the model proposed by Mr. Lund, one would need to perform soil borings in the Miner wetland and channel wetlands on the Miner property, according to Mr. Collins.

Mr. Collins also testified that while the Kernen wetland may attenuate phosphorus loadings as a result of the sewage treatment plant discharge, the ability of the Kernen wetland to assimilate phosphorus is finite; the wetland "is not a sink." Typical phosphorus removal efficiency is 40-50% for cattail wetlands. Eventually, there will be an export of phosphorus to Lacey Lake.

In his opinion, there is no barrier to movement of phosphorus into Lacey Lake through the Kernen wetland and there is no mechanism to prevent phosphorus from eventually going through the Kernen wetland reaching Lacey Lake.

There will be some changes to the Kernen wetland as a result of the sewage treatment discharge. Although there will not be a significant change to the vegetation; there will be an increased phosphorus content in the muck soils. Typical current plant types (cattails) in the Kernen wetland are shown in photographs taken on August 4, 1993 (Exhibits 5a-5c).

During summer dry periods, discharge from the proposed sewage treatment plant will be sufficiently large to create a small channel or set of channels through the Kernen wetland. The discharge will not spread out evenly over the ground in a "sheet flow". Photographs (Exhibits 5f-5i) show the lack of flow at the north end of the Kernen wetland as of August 4, 1992. Channelization will shorten the travel time of the phosphorus to Lacey Lake. This will increase the growth of algae and plants in the bottom sediments of the lake.

During winter conditions, there will be virtually no removal of phosphorus in the Kernen wetland by plant uptake. Sedimentation will remove phosphorus absorbed by soil particles, but will not remove soluble forms of phosphorus. In winter, the discharge at times will not freeze before entering the Kernen wetland. In other words, phosphorus will be delivered directly from the point of discharge to Lacey Lake.

Because of channelization and low winter uptake of phosphorus, Lacey Lake will be affected by the nutrients introduced by the discharge within a year after start up. Measurable adverse effects may occur within 3-5 years. Such measurable effects would be (a) a higher algal production, and (b) reduced transparency in the lake.

On cross-examination, it was established that Mr. Collins had no academic training in hydrogeology, has never performed an assignment involving groundwater recharge to wetlands, and could not cite any authority on the subject that he has personally read. V1, P69, L17-20; V1, P78, L18-20; V1, P79, L11-13.

Mr. Collins further admitted that he could not form any opinion as to the tendency of surface water to recharge through soils in the Kernen wetland to the groundwater. His predictions that the Kernen wetland might dry out were based upon speculation regarding what might occur in the Miner wetland and he had formed no opinion as to whether those speculations would apply specifically to the Kernen wetland. V2, P149, L5-P150, L11; V2, P151, L8-P152, L18; V2, P147, L11-15.

He conceded that depth of saturation is only one of many factors affecting groundwater recharge and conceded that he had not studied soil type, soil porosity or hydraulic head in the Kernen wetland, conditions he acknowledged affect groundwater recharge. V2, P142, L8-11; V2, P142-147, L10; V2, P149, L5-P150, L15.

Mr. Collins also admitted that his observation of the flows in the Kernen wetland which were four to eight times the flow he observed exiting in the Miner wetland was possibly an indication groundwaters are currently discharging to surface waters in the Kernen wetland, rather than surface waters recharging to groundwater. V2, P205, L23-P206, L1.

Dr. Henry M. Runke, a limnologist and environmental engineer, testified by deposition (Petitioners' Exhibit 6), which included a copy of his August 2, 1993, report (Petitioners' Exhibit 7). Based on conversations with Peter Collins, Dr. Runke testified that Lacey Lake contains a diverse community of different types of rooted plants (macrophytes), that the lake appeared to be a good bass habitat, with a low level of phytoplanktonic algae and high water clarity (Runke deposition, pp 46-48). The depth of the lake is 30 to 40 feet (Id p 52) and, therefore, there will probably be some thermal stratification (Id p 125). His review of Dr. Kadlec's first report (Applicants' Exhibit 28) showed a measurement of 10 micrograms per liter of total phosphorus at the outlet of Lacey Lake, which is quite low, and would indicate that Lacey Lake is oligotrophic, relatively poor in nutrients and with low fertility (Id pp 126-127). The importance of Lacey Lake being oligotrophic is that small changes in phosphorus concentrations will cause a large corresponding change in terms of the amount of algae and transparency of the water. Lacey Lake is relatively susceptible to change as result of increased nutrient loads (Id p 128).

Dr. Kadlec's second report (Applicant Exhibit 41) did not assess impacts to Lacey Lake and a complete and proper assessment of the consequences of this proposed project should have included such an assessment (Runke deposition p 135). That assessment should have been part of the permit issuance process (Id p 136).

Based upon Dr. Kadlec's projection of 80 % reduction of phosphorus in summer and 40% reduction of phosphorus in winter by uptake in wetlands, and based upon an effluent limit of one mg/l of phosphorus, 200 pounds of phosphorus will be released into Lacey Lake each year as a result of the proposed discharge (Petitioner's Exhibit 7, p 2). At the permitted rate of 0.5mg phosphorus per liter, approximately 100 pounds of phosphorus will be released into Lacey Lake each year, based upon Dr. Kadlec's estimates of phosphorus removal. However, Dr. Kadlec does not take account of the fact that much smaller percentages of dissolved phosphorus are removed by wetlands (Id p 2). Dr. Kadlec does not estimate the fraction of total phosphorus in the discharge that is dissolved or particulate. In fact, most of the phosphorus discharge to the wetlands will probably be dissolved phosphorus and will not be removed by the Kernen wetland before entering Lacey Lake (Id p 3).

As the phosphors nutrient load increases in Lacey Lake, cattail density will increase both in the Kernen wetland and Lacey Lake. The effect will likely be a rapid decrease in water quality within two years.

In addition to the deposition testimony Dr. Runke introduced in Petitioner's case in chief, he testified live in rebuttal, subsequent to Dr. Kadlec's testimony. Subject to an objection to such testimony, based on a previous order in limine limiting Dr. Runke's testimony to that in his deposition or based on the information he had at the time of the deposition, a separate record was made.

Dr. Kadlec testified, based on his estimate of the phosphorus loading from the Shiawassee River, vis a vis the input from the effluent traversing the wetland, there would be a minimal impact, somewhere in the neighborhood of 3.5%. In rebuttal, Dr. Runke disputed that clculation, on the separate record, based on a substantially reduced estimate of flow from the Shiawassee River. The reduced flow would proportionately increase the percentage of phosphorus loading from the wetland. Therefore, the impact of the effluent would be substantially greater than Dr. Kadlec's estimate. However, on cross examination it was revealed the flow rate upon which Dr. Runke was basing his calculations was from gauging data for the Shiawassee River at Linden, Michigan. Linden is a substantial distance from Lacey Lake. Further, Dr. Runke did not account for intervening conditions, such as wetlands, swamp, etc. between Lacey Lake and Linden which is located downstream. Therefore, it would appear that his calculations are less credible than those of Dr. Kadlec, who based his findings on immediate data in the vicinity.

Dr. Kadlec testified on behalf of Homestead on wetland phosphorus removal mechanisms and on his calculation of the phosphorus levels that will reach Lacey Lake. Dr. Kadlec's resume was admitted as Exhibit 27. He is a Professor of Chemical Engineering at the University of Michigan, a registered Professional Engineer, and the principal of Wetland Management Services. He has been involved in one to two dozen university research projects involving wetlands and in over 100 wetland projects associated with his consulting activities. He has authored in excess of 60 publications on wetlands in professional journals, and has presented an additional dozen or so papers per year at professional meetings or conferences. Dr. Kadlec's most recent paper on phosphorus removal by wetlands was presented to at international meeting, where the subject was the biogeochemistry of wetlands, in February, 1993. He is involved in two major government projects involving the collection of all available scientific information on phosphorus removal in wetlands and on wastewater to wetland systems in the United States. In addition, Dr. Kadlec has been involved in the longest running wetland research project in the world (Houghton Lake) and the largest wetland research project in the world (Florida Everglades). V3, P229, L6-P254, L19.

Dr. Kadlec explained his opinion as to what an appropriate calculation of phosphorus removal in a wetland environment should involve. As he explained, an appropriate calculation must include several factors: (V3, P293, L8-9)

a. The first factor is to develop an estimate of phosphorus removal processes from sites that are in the same geographic region and are of the same wetland type as the wetland of concern. V3, P293, L12-15.

b. Another factor that must be considered when developing a phosphorus removal calculation is seasonality or the temperature factor. V3, P293, L19-21.

c. It is also necessary to know the hydraulic loading of the wetland, which means the amount of water applied per unit of area of the wetland. V3, P293, L22-24.

d. A general concept of the water depth in the wetland is also needed. V3, P293, L24-25.

e. Removal processes and calculations should also involve a knowledge of the phosphorus loading to the wetland and should allow for gradients in phosphorus concentrations from the inlet to the outlet of the wetland. Phosphorus removal is dependent on phosphorus concentration, and phosphorus concentrations become lower as water moves through a wetland. Hence, a single number cannot be assigned to an entire wetland. This is known as the gradient effect. V3, P294, L8-17.

Dr. Kadlec performed such an analysis of phosphorus removal in this matter, and developed a phosphorus removal model based upon information he assembled from the best wetland projects in similar geographic regions spanning summer and winter conditions. From those projects Dr. Kadlec derived the model parameters necessary to do estimates for the Kernen wetland, and then applied those parameters in that model to calculate those estimates. V3, P295, L23-P296, L3. He testified that, based upon his model, the output of phosphorus from the Kernen wetland would be 0.02 mg/L in the summer, and 0.08 mg/L in the winter V4, :385, L17-22. Those values translated to an annual average phosphorus load to Lacey Lake of 14 kilograms (kg). PX9; V4, P395, L3-P396, L1. He also explained his model predicted a phosphorus removal efficiency of approximately 84%, and he did not feel this was an extremely high value because he had seen wetland removal efficiencies higher than this. V7, P396, L14-25.

Dr. Kadlec testified, in his opinion, Mr. Collins' estimate of removal efficiency, based on his review of an article entitled, "A Literature Review of Removal Efficiencies in Wetlands," was an oversimplification that could lead to erroneous conclusions, and could be very misleading. The reasons for his opinion were:

(1) The article was based upon an incomplete database that containing only a small percentage of available information;

(2) The values in the article were not regionalized to account for the effects of seasons and location;

(3) The numbers in the article do not account for differences in wetland type;

(4) The database on which the article was based was out of date and missed a vast majority of the information Dr. Kadlec used in his analysis; and

(5) One of the three references cited by the article was an analysis of a wetland in Denmark that shared very little resemblance to the Kernen wetland. V3, P296, L17-P297, L25.

Dr. Kadlec has been involved in many research projects involving channelization in cattail wetlands including, among others, projects in Des Plaines, Illinois, the Iron Bridge wetland in Florida, the Water Conversation Area 2A wetland in Florida, and the Houghton Lake, Michigan wetland. Those projects involved point source wastewater flow rates into cattail wetlands ranging from between 1/4-1/2 the Homestead flow rate. Based upon that experience, Dr. Kadlec testified it is his opinion that point discharges into cattail wetlands do not cause erosion channels. V3, P300-306; V3, P306, L8-14; DX45-53.

The reason erosion does not cause channelization in cattail wetlands is because the interlaced mat of roots and rhizomes, some living and some dead, are very resistant to any sort of excavation or erosion. V3, P309, L9-15. Channelization in cattail wetlands is due primarily to the activity of one or more types of animals. V3, P306, L15-P307, L9.

He testified his model specifically accounted for the fact that flows through the Kernen wetland would be partially channelized and partially diffuse overland (sheet) flow. He also explained his phosphorus removal model did not assume the discharge would spread out at an even depth across the entire surface of the Kernen wetland. V3, P373, L17-P374, L4; V4, P398, L8-P399, L8; V6, P750, L17-P751, L15.

He explained he had taken long term effects into account, and he had adopted the conservative approach, basing his calculations of phosphorus removal in the Kernen wetlands on the long term, sustainable operating state of the wetland, as follows:

In the course of the rearrangement of a wetland, natural or constructed, in response to a new flow of water and phosphorus, there's a period of adaption to that new circumstance. . . . That startup period. . .is a period of higher phosphorus removal efficiency because mechanisms such as soil absorption and storage in larger plant biomass in fact lead to higher phosphorus removals during such a startup period so that in doing calculations. . .it is not, in my opinion, reasonable to include that startup period as part of an estimate of a long term, sustainable phosphorus removal. . . . I feel that it is conservative and better practice to use the data which pertain to wetlands that have undergone the transition through that startup phase and have reached a long-term, sustainable operating state, and that was what was done. That type of information was used in my calculations of what I though might happen on the Kernen wetland.

V3, P298, L9-P299, L11.

Dr. Kadlec explained the Kernen wetland would reach its long term, sustainable rate of phosphorus removal within two to four years. During those initial years, the northern portions of the Kernen wetland will go through an adaptation to the increased phosphorus levels, during which the soils in that area will become loaded with phosphorus and there will be a slight adjustment in the species that are present and their biomass. After that initial period, the cycle of growth, death, litter fall and litter decay, involving everything from bacteria to cattails, will continue. As a result of that cycle, portions of the dead material that does not decompose will build up as a sediment layer. That continuous accretion of peats and muck leads to the long term, sustainable assimilative capacity of wetlands, and it is that long term capacity to remove phosphorus that Dr. Kadlec assigned to the wetlands in his calculations. V3, P359, L10-P362, L15.

He explained he specifically took winter conditions into account by splitting his phosphorus removal model into summer and winter periods and deriving the necessary parameters for each model from a local database containing both summer and winter values. Those models led to two separate estimates of phosphorus output from the Kernen wetland - one for summer conditions and one for winter conditions. V3, P311, L20-P312, L10.

Dr. Kadlec testified that a 0.0002 mg/L difference in phosphorus concentration is at the limit of the capabilities of discrimination of virtually every laboratory of which he knows, and would not have a measurable effect on Lacey Lake. V4, P418, L21-25.

He also performed another set of calculations to determine the probable impact of the Homestead discharge on Lacey Lake. Using a flow rate of 30 cfs for the Shiawassee River, he estimated that the Shiawassee River would deliver approximately 402 kg/yr of phosphorus into Lacey Lake. Based upon that figure, he determined the 14 kg/yr that would be discharged into Lacey Lake, via the Kernen wetland, would result in a 3.5% increase in the phosphorus levels in Lacey Lake. V4, P392, L5-P395, L6; PX9. Dr. Kadlec acknowledged his 3.5% estimate could vary by plus or minus 60% (1.4% to 5.6% phosphorus increase). V4, P396, L11-13.

Mr. Michael Wilczynski testified on behalf of Homestead on groundwater impact issues. Mr. Wilczynski, a hydrogeologist with McNamee, Porter & Seeley, prepared a hydrogeological interpretation of the Homestead site area, including the Kernen wetland, to address concerns regarding the potential for the Homestead discharge to impact groundwater in the area of the Kernen wetland. V4, P427, L19-P2428, L11; DX19. Mr. Wilczynski holds a Bachelor and Master of Science degree in Geology, and has over 14 years of experience in geology and hydrogeology. V4, P420, L10-P427, L11; DX16.

Mr. Wilczynski's hydrogeological interpretation was based upon a review of various sources of existing information concerning the site, including the Hydrogeological Atlas of Michigan, published by Western Michigan University, surficial and bedrock geological maps of Michigan, prepared by the Michigan Geological Survey, shallow soil borings on the Homestead site, and residential well logs in the areas of the site. He also conducted a site inspection of the Homestead property. The findings and conclusions of that hydrogeological investigation were set forth in correspondence dated August 20, 1992. V4, P428, L22-P429, L4; V4, P430, L17-18; DX19.

There were eighteen (18) residential water supply well logs involved in Mr. Wilczynski's review. Approximately seven (7) of the logs were for residential wells located west and northwest of the Homestead property, along Falk Road. Approximately six (6) of the logs were for wells located along Holly Road, between the Homestead property and the Kernen property, including the Kernen well (well #9), and five (5) logs were for residential wells located along Tucker Road, east of the Kernen wetland. DX19, Figure 1; DX20; V4, P442, L2-4.

He testified that residential well logs are a fairly accurate source of information where (as here) one seeks to determine the presence of confining materials and water bearing materials, because water well drillers are in the business of locating water bearing geological materials and confining materials. Residential well logs are also submitted to the State Department of Public Health, and are used in connection with locating municipal water supplies and for hydrogeologic studies for wellhead protection programs. V4, P447. L18-L448, L17.

From all of the information reviewed, Mr. Wilczynski prepared four (4) geological transects or cross-sections between the residential wells (referred to as A-A', B-B', C-C' and D-D') which show what the subsurface geology would look like if a trench was dug along those cross-section lines. V4, P431, L17-23; DX19, 20, 22, 23, 24. The four (4) transects, connecting all eighteen (18) residential wells, all showed the presence of a lower confined aquifer in which all residential wells, including the Kernen well, are constructed. That confined aquifer is protected from surface contamination by a continuous confining layer that is present throughout the area. The confined nature of the lower aquifer is also confirmed by the fact that all transects show all wells have hydrostatic heads that are above the top of the aquifer, which means that groundwater would flow, if possible, toward surface water. V4, P444, L15-22; V4, P466, L1-6.

Mr. Wilczynski's site visit, along with test pits and soil evaluations he conducted during that visit, confirmed the presence of the confining layer and the impervious nature of the soils within that geologic unit. V4, P439, L15-P440, L25; DX25. Based upon the hydrogeology of the site and other factors, he feels there is no reason for concern about the possibility of the Homestead discharge affecting groundwater in the confined aquifer at the Kernen wetland. V3, P291, L15-18; V4, L445, L17-21; V4, P465, L15-21.

Mr. Wilczynski admitted on cross examination that he could not put a degree of accuracy on the data. He also conceded that there may be a connection between surface water and groundwater immediately beneath the surface and above the confining layer.

Gerald Miner, the general partner of the applicant, testified concerning his involvement with the project, including meetings with the Village of Holly, which rejected his proposal to hook up to the Holly Wastewater Treatment Plant. Mr. Miner also testified concerning the negotiations with the MDNR concerning moving the discharge point from the Miner wetland into the "channel" wetland.

Donald Lund, a civil engineer, testified for the applicant concerning the design and operation of the sequencing batch reactor, proposed for the mobile home park (Applicant Exhibits 6, 10-13). Mr. Lund testified that he was confident the sequencing batch reactor would meet or better the effluent limit of a 0.5 mg/1 phosphorus. However, he admitted on cross examination he was not aware of any performance guarantee for the sequencing batch reactors with which he is familiar, because his corporate attorney would not allow him to give such a guarantee.

Daniel Dell, Environmental Quality Manager, Surface Water Quality Division of the MDNR, testified on behalf of the MDNR. He reviewed the steps required for issuance of an NPDES permit. Mr. Dell testified the MDNR requested comments from other MDNR sections, including William Creal, Great Lakes and Environmental Assessment Section, concerning bypassing the water quality based effluent limitation process (MDNR Exhibit 2). On cross examination, Mr. Dell testified he never saw any calculations on the impacts to Lacey Lake by Mr. Creal or his staff. Calculations on phosphorus loading to Lacey Lake from the proposed discharge were done on a desk-top calculator (MDNR Exhibit 3). Mr. Dell said he did not see in the MDNR file any study from the Great Lakes Environmental Assessment Section about the effect on Lacey Lake from the proposed discharge.

According to Mr. Dell (MDNR Exhibit 12), the briefing statement to the Water Resources Commission dated October 15, 1992, the "1098 statement", says there will be a "small, and probably unmeasurable, lowering of the water quality of the Shiawassee River."

Mr. Steve Sadewasser is the state-wide wetlands specialist for the MDNR. He testified relating to the concerns of the Land and Water Management Division over the proposed discharge into the Miner wetland (MDNR Exhibit 15). He conducted a site visit to the Kernen wetland, the purpose of which was to evaluate the impact of the proposed discharge on the Kernen wetland. He described the bulk of the wetland during his visit as a monotype cattail and emergent marsh. During his site visit, the water did not appear to be moving in all areas of the wetland. He tended to concur with the conclusion of the second Kadlec report (Applicant Exhibit 41). He conceded on cross examination that his opinion concerning impacts on the Kernen wetland were not based on any studies other than his brief site visit. Mr. Sadewasser conceded the Kernen wetland will tend to build up phosphorus from the proposed discharge in the sediment.

The Petitioners, Lloyd and Donna Kernen, have the burden of proof in this matter.

While the burden of going forward may shift, depending on whether the Petitioner has presented a prima facie case, the burden of proof remains with the Petitioner. Holly Township v. DNR, 194 Mich. App 213 (1992).

Petitioner must, therefore, fulfil their burden of proving that the issuance of the permit is not supported by competent, material and substantial evidence on the whole record. MAPA sec. 106; MCL 24.306.

The Michigan Water Resources Commission Act, MCL 323.1 et seq, prohibits discharge of pollutants into the waters of the State without a permit issued by the WRC. MCL 323.6. The WRC has the authority to set limits on the quality of the effluent in order to insure protection of the State's natural resources. MCL 323.6.

The claims made by the Petitioners are the permit will degrade water quality, in violation of Rule 98 (R 323.1098), and the permit will cause water pollution impairment or destruction of groundwater, surface waters or land, in violation of the Michigan Environmental Protection Act, 1970 PA 127 ("MEPA"), MCL 691.1201 et seq.

Rule 98 of the Water Resources Commission's General Rules, 1986 AACS, R 323.1098, states in pertinent part:

R 323.1098 Anti-degradation.

Rule 98. (1) 'This rule applies to waters of the state in which the existing water quality is better than the water quality standards prescribed by these rules or than needed to protect existing uses.

(2) These waters shall not be lowered in quality by action of the commission unless it is determined by the commission that such lowering will not do any of the following:

(a) Become injurious to the public health, safety, or welfare.

(b) Become injurious to domestic, commercial, industrial, agricultural, recreational, or other uses which are or may be made of such waters.

(c) Become injurious to the value or utility of riparian lands.

(d) Become injurious to livestock, wild animals, including birds, fish, and other aquatic animals, or plants, or their growth or propagation.

(e) Destroy or impair the value of game, fish, and wildlife.

(f) Be unreasonable and against the public interest in view of the existing conditions.

(3) All of the following waters are designated as protected waters:

(a) All Michigan waters of the Great Lakes, except as these waters may be affected by discharges to the connecting waters and tributaries.

. . .

(c) Inland lakes.

. . .

(4) In addition to the requirements of subrule (2) of this rule, the waters specified in subrule (3) of this rule shall not be lowered in quality unless, after opportunity for public hearing, it has been demonstrated by the applicant to the commission that a lowering in quality will not be unreasonable, is in the public interest in view of existing conditions, is necessary to accommodate important social or economic development . . . and that there is no prudent and feasible alternative to lower water quality.

. . .

(8) Before authorizing a new or increased discharge of waste water directly to the Great Lakes or connecting waters, the commission shall provide, in addition to the public notice required by the commission rules, supplemental notice of its intent to authorize such discharge, of its proposed determination with respect to the applicable factors set forth in subrule (4) of this rule, and the proposed national pollutant discharge elimination system permit terms and conditions . . .

To summarize, Rule 98 applies to waters in which the existing water quality is better than the state water quality standards require. The rule prohibits the lowering of the quality of such waters, unless the WRC (or now Natural Resources Commission) determines that such lowering will not be injurious to the designated uses of such waters, and will not be unreasonable and against the public interest in view of the existing conditions. In addition, Rule 98 prohibits the lowering of the quality of inland lakes (and certain other waters) unless it is also shown that such lowering is necessary to accommodate important social or economic development and there is no feasible or prudent alternative.

Although there are no Michigan court decisions interpreting Rule 98, it is a well established rule of construction that statutes (or rules) that relate to the same persons or things or which have a common purpose are in pari materia and should be read together. The statutes should be considered as constituting one law, even though enacted at different times, and containing no reference to each other. Michigan Oil -v- Natural Resources Comm'n, 406 Mich 1, 33 (1979).

Since both MEPA and Rule 98 address degradation of water quality (and other natural resources), they are in pari materia and should be read as one - requiring a similar quantum of impairment in order for conduct to be actionable.

This interpretation of Rule 98's anti-degradation standard is consistent with a recent United States Supreme Court decision that interpreted the State of Oklahoma's anti-degradation water quality standard.

In Arkansas -v- Oklahoma, 503 US ____, 117 L Ed2d 239, 112 S Ct ___ (1992), the Court reviewed a U.S. EPA decision to issue a permit to the City of Fayetteville, Arkansas, which discharged its waste waters into the Illinois River, which then flowed into the State of Oklahoma. Oklahoma challenged the U.S. EPA's decision on the ground that the discharge would violate its state water quality standards, which allowed no degradation of the Illinois River. Oklahoma asserted that any additional waste water discharges into the Illinois River would result in degradation of the Illinois River.

The Supreme Court held that a decision by a U.S. EPA administrative law judge that the "non degradation" standard would only be violated if the discharge resulted in an "actually detectable or measurable change in water quality, does not constitute a degradation of water quality. Consistent with the standards established under MEPA and the Oklahoma decision, a discharge that does not have a detectable, measurable or otherwise demonstrable effect on water quality does not violate Rule 98.

The Michigan Environmental Protection Act ("MEPA"), provides a means by which a person may sue to protect water (and other natural resources). MEPA does not, in and of itself, provide standards of criteria for what may constitute pollution, impairment or destruction of water or other natural resources.

Rule 41 of the Water Resources Commission's General Rules, Part 4, Water Quality Standards, 1986 AACS, R 323.1041 states:

"Rule 41. The Purpose of the water quality standards as prescribed by these rules is to establish water quality requirements applicable to the Great Lakes, the connecting waters, and all other surface waters of the state, to protect the public health and welfare, to enhance and maintain the quality of water, to protect the state's natural resources, and serve the purposes of Public Law 92-500, as amended, 33 U.S.C. 466 et seq., Act No 245 of the Public Acts of 1929, as amended, being 323.1 et seq. of the Michigan Complied Laws, and the Great Lakes water quality agreement enacted November 22, 1978. These standards may not releact current water quality in all cases, but are minimum water quality requirements for which the waters of the state are to be managed."

The MDNR staff responsible for recommendating effluent limitations specifically concurred that the proposed discharge would meet water quality standards. In fact, the effluent limitations proposed were expected to meet water quality standards at the point of discharge. No pollution, impairment or destruction of the surface waters will result from the discharge consistent with Rule 41.

An additional claim has been made by the Petitioners that the MDNR failed to take account of the increased phosphorus loading of the Kernen wetland and Lacey Lake.

Rule 60 of the Water Resources Commission's General Rules, 1986 AACS, R 323.1060, states:

"R 323.1060 Plant Nutrients.

Rule 60. (1) Consistent with Great Lakes protection, phosphorus which is or may readily become available as a plant nutrient shall be controlled from point source discharges to achieve 1 milligram per liter or total phosphorus as a maximum monthly average effluent concentration unless other limits, either higher or lower, are deemed necessary and appropriate by the commission.

(2) In addition to the protection provided under subrule (1) of this rule, nutrients shall be limited to the extent necessary to prevent stimulation of growths of aquatic rooted, attached, suspended, and floating plants, fungi or bacteria which are or may become injurious to the designated uses of the waters of the state."

Under Rule 60(1), the phosphorus limit is set at 1 milligram per liter, "unless other limits, either higher or lower, are deemed necessary and appropriate by the commission". For this permit, the WRC determined that lower limits were necessary and appropriate.

The designated uses of the waters of the State are set forth in Rule 100 of the Water Resources Commission's General Rules, 1986 AACS, F 323.1100, which provides in part:

"Rule 100. (1)  as a minimum, all waters of the state are designated for, and shall be protected for, all of the following uses:

(a)  Agriculture.

(b)  Navigation.

(c) Industrial Water Supply.

(d)  Public water supply at the point of water intake

(e) Warmwater fish.

(f) Other indigenous aquatic life and wildlife

(g) Partial body contact recreation.

(2) All waters of the state are designated for, and shall be protected for, total body contact recreation from May 1 to October 31 in accordance with R 323.1062. [Microorganisms] The commission will annually publish a list of those waters of the state located immediately downstream of municipal sewage system discharges where total or partial body contact recreation is contrary to prudent public health practices.

Mr. Sadewasser, the MDNR's wetland protection program expert, specifically stated that no significant qualitative difference related to the plant community and its likely uses, recreational uses, or use by other wildlife is expected to occur in the wetland from the proposed discharge. In addition, Mr. Daniel Dell, the MDNR staff person responsible for the development of the permit limitations and conditions, testified at the hearing. He relied upon the MDNR staff that is responsible for development of the phosphorus limitations and their statements that the quality of the discharge should protect the designated uses and water quality of the receiving waters. The requirements of Rule 60(2), and Rule 100 were satisfied.

The WRC's actions in issuing the permit were not arbitrary, capricious, or an abuse of discretion. "If the agency considers the relevant factors and articulates a rational connection between the facts found and the choices made, the decision is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law and will be upheld if supported by substantial evidence." Nagi v United States, 751 F.2d 826, 828 (6th Cir. 1985) (citations omitted).

The relevant factors regarding impacts to the wetlands and Lacey Lake were considered by the agency. The facts, as presented, support the decisions made in developing appropriate effluent limitations and the issuance of the permit.

With respect to surface water impacts, Mr. Collins' report and testimony speculated that the Homestead discharge could adversely affect Lacey Lake. He also testified he would defer to Dr. Runke on questions of lake impacts. V2, P155, L9-19.

Dr. Runke admitted, without conducting a study of Lacey Lake, he was in no position to predict what impacts, if any, the Homestead discharge would have on Lacey Lake. Further, other than the 30 cfs Shiawassee River flow rate, which Dr. Kadlec estimated to be lower than the Linden data, Dr. Runke agreed with Dr. Kadlec's calculations, indicating the Homestead discharge would increase phosphorus levels in Lacey Lake by 3.5%. Dr. Kadlec characterized the projected impact on Lacey Lake as beyond laboratory discrimination. Dr. Runke characterized such increase as "insignificant."

The MDNR similarly concluded that the Homestead discharge would have a small, probably immeasurable impact on Lacey Lake.

A discharge, such as Homestead's, having "immeasurable" or "insignificant" impacts on water quality, increasing phosphorus levels to such a small degree as to be beyond laboratory discrimination, and that will not change the trophic level of Lacey Lake, is wholly consistent with the requirements of both MEPA and Rule 98.

The 0.5 mg/L phosphorus effluent limitation in Homestead's NPDES permit is set at 1/2 of the 1 mg/L water quality standard established under Rule 60, R 323.1060.

In Kimberly Hills Neighborhood Association v. Dion, 114 Mich. App 495 (1982), the plaintiffs were a group of Ann Arbor residents who sought to enjoin the defendant from developing a residential home subdivision on a 9.2 acre parcel that contained a diverse wetland, an intermittent pond that provided a wildlife habitat for a number of species, several old trees that provided nest areas for hawks and other birds, and brush areas that provided cover for small animals. The Court of Appeals held the destruction of those resources did not rise to the level of impairment or destruction necessary to establish a prima facie case under MEPA.

Thomas Twp v Sexton Corp, 173 Mich App 507 (1988), involved plans by the defendant to drain a 62 acre artificial lake that had formed in an abandoned clay pit on private property, so it could be used for a sanitary landfill. The Court of Appeals held the plaintiffs failed to establish such action constituted impairment or destruction under MEPA. The Trial Court erred in concluding that draining the lake would violate MEPA. The Court had found the pit to be a rare resource in this location. The Court of Appeals reversed on the basis that a statewide perspective was required and that the resource would be considered an abandoned clay pit filled with water elsewhere and not a rare resource.

In Rush v Sterner, 143 Mich App 672 (1985), plaintiffs claimed defendant's plans to rehabilitate an old hydroelectric dam would violate MEPA, because such action would impair the impounded creek's value as a trout stream by decreasing the speed of the creek, increasing its temperature, and causing sedimentation to occur. Although plaintiffs showed that such changes would cause a shift in fish species, from trout to other warm water fish species, the court concluded such a showing did not constitute a prima facie case for impairment under MEPA.

These cases state it must be established a degradation of a natural resource, within the meaning of the Michigan Environmental Protection Act, must focus on the overall statewide effect on the resource. These facts apply unless the effected resource is rare or unique, in which case, any degradation may be considered.

There is no question neither the Kernen wetland or Lacey Lake is a rare or unique resource for which any slight degradation could be considered violative of MEPA. There is no evidence on the record these resources are anything other than waters or wetlands common throughout the state.

Dr. Kadlec and Mr. Wilczynski presented evidence in support of their conclusions; there is little or no likelihood of the Homestead discharge impacting groundwater in either a confined or unconfined aquifer. Mr. Sadewasser, as indicated previously, concurred with those views.

Mr. Lund's testimony showed the quality of the effluent would be fully protective of groundwater, even in the improbable event of some groundwater recharge. The MDNR independently reached the same conclusion. While Mr. Collins speculated groundwater recharge was possible; the overwhelming evidence to the contrary is more that persuasive.

The total record in this case supports the issuance of the permit by competent, material and substantial evidence.

The evidence indicates that the discharge, as permitted, will not degrade either surface of ground water nor will it degrade the vegetation in the Kernen wetland to a degree that will have any effect on a statewide bases. The record indicates there will be no effect on groundwater and an insignificant impact, beyond laboratory discrimination, on surface waters. The Kernen wetland is now predominantly cattails; any further propagation will not degrade it.

Based on the foregoing Findings of Fact and Conclusions of Law, it is proposed the Department's granting of the NPDES permit to Homestead Development be sustained. There is no authority for the awarding of costs and fees to the prevailing party under the Michigan Administrative Procedures Act.

Richard A. Patterson
Administrative Law Judge

Petitioners' Exhibits:

1. Deed to property
2. Title Policy
3. Resume Peter G. Collins
4. Not Admitted
5. (a through q) pictures depicting area
6. Deposition of Dr. Henry Runke

Homestead's Exhibits

1. USGS Map - Holly Township
2. Aerial Photograph of Homestead property and surrounding area
3. Aerial Photos - sections 27 and 35
4. Not Admitted
5. Resume of Donald E. Lund
6. Descriptive summaries of three SBR projects
7. Poster describing Oak Pointe SBR system
8. Poster with three photographs of Oak Pointe SBR facility
9. Not admitted
10. "The Advantages of Sequencing Batch Reactor."
11. Schematic Diagram - hydraulic profile of SBR
12. Schematic Diagram - SBR wastewater and sludge flow
13. Oak Pointe wastewater treatment plant and pumping station operation and maintenance manual
14. Correspondence to Mr. Alex McCrae from Donald E. Lund, April 21, 1992
15. NPDES Permit No. MI 0050181
16. Resume of Michael Wilczynski
17. Well logs
18. Topographic map of Miner Wetland
19. Correspondence to Mr. Mark Jacobs from Mr. Lund, August 20, 1992 re Site Hydrogeology
20. Well location base map
21. Cross section D-D'
22. Cross section B-B'
23. Cross section A-A'
24. Cross section C-C'
25. Wilczynski photograph of soils in channel wetland
26. Wilczynski photograph of soils in channel wetland
27. Resume of Robert H. Kadlec
28. Report - Wetlands and Wastewater, etc., by Dr. Kadlec, July, 1991
29. Correspondence to Mr. Sadewasser from Dr. Kadlec on September 3, 1992
30. Site inspection of Gerald Miner Property by Prof. Frederick Bevis, Nov. 29, 1991 (Limited Purpose)
31. Infrared Aerial Photograph
32. Aerial photograph of Kernen wetland and Lacey Lake
33. Aerial photograph of Lacey Lake
34. Aerial photograph of north end of Lacey Lake
35. Aerial photograph of north end of Lacey Lake and Pechota dock
36. Photograph of Kernen wetland south from Holly Rd.
37. Photograph of Kernen wetland from Lacey Lake
38. Aerial photograph of Miner wetland
39. Photograph of Miner wetland
40. Photograph of channel wetland
41. Report - "Commentary of Wetlands between Miner Wetland and Lacey Lake by Dr. Kadlec, August, 1992
45. Photograph of outflow culvert Des Plaines, Illinois
46. Photograph of inlet showing flow to treatment plant in Florida wetland
47. Another photograph of above
48. Photograph of pooling into monotypical wetland
49. Photograph showing lack of channelization
50. Photograph of Houghton Lake gate and irrigation pipe
51. Photograph of similar discharge
52. Photograph of distribution pipe
53. Aerial photograph dated August 1, 1990
54. Test of article entitled "Aquatic Plants for Treatment and resource recovery."

1. List of WWTPs with effluent limitations more stringent than 1.0 mg/1
2. Interoffice communication April 23, 1992, Dell to Creal
3. Memo Daniel Dell to Alex McCrae, May 11, 1992
4. WRC Municipal wastewater discharge application by Homestead
5. Interoffice communication August 26, 1991, Dell to Chippewa
6. Interoffice communication September 16, 1991, Chippewa to Dell
7. Memo Richert to McCrae, May 5, 1992
8. Memo Gates to Dell, undated
9. Public Notice dated May 16, 1992
10. Memo to WRC for July 16, 1992 meeting
11. Minutes of July 16, 1992 WRC meeting
12. Memo to WRC for October 15, 1992 meeting
13. Minutes of October 15, 1992 WRC meeting
14. Resume of Steven G. Sadewasser
15. Interoffice communication Sadewasser to McCrae, January 23, 1992
16. Notes from site inspection September 11, 1992
17. Interoffice communication Sadewasser to Zugger, October 8, 1992
18. Interoffice communication Cowles to McCrae, February 12, 1992
19. Memo Zugger to Witte, March 4, 1992