SUBJECT: Natural Resources and Environmental Protection Act,
1994 PA 451, as amended; Part 303, Wetland Protection;
Part 301, Inland Lakes and Streams; Part 31, Water Resources Protection
Petition of Kenneth E. Klammer.
File No. 91-8-30
_________________________________________________________________

This contested case involves the denial of an after-the-fact application for a permit to allow two constructed ditches and levees to remain in an area classified by the Michigan Department of Natural Resources (MDNR) as a wetland. The project has also been identified as being located in the floodplain of the Cass River and below the ordinary high water mark of an inland stream. The Application For Permit, filed August 27, 1991, was denied under the provisions of the then existing Goemaere-Anderson Wetland Protection Act, Inland Lakes and Streams Act and Floodplain Occupancy Act.

Kenneth E. Klammer requested a hearing pursuant only to the Wetland Act. The MDNR asserted jurisdiction under the Wetland, Floodplain and Inland Lakes and Streams Acts. A contested case hearing was held in this matter on September 7, 23 and 30, 1994, and continued on November 18, 21, 23, 28 and 29, 1994. Final briefs were submitted on March 31, 1995. Pursuant to Section 85, MCL 24.285; MSA 3.560(185), of the Michigan Administrative Procedures Act, this is the Final Order of the Michigan Department of Environmental Quality (MDEQ) in this matter.

This matter was brought under the Goemaere-Anderson Wetland Protection Act (GAWPA), 1979 PA 203, as amended; MCL 281.701, et seq; MSA 18.595(51) et seq. and the rules promulgated under the Act, the Inland Lakes and Streams Act (ILSA), 1972 PA 346, as amended, MCL 281.951, et seq.; MSA 11.475(1) et seq., and administrative rules, and the Floodplain Occupancy Act, 1929 PA 245, as amended. MCL 323.2a, et seq. MSA 3.522(1) et seq, and administrative rules. Since this case commenced, the above-referenced statutes have been repealed and reenacted as part of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended. Wetland Protection is now found in Part 303, Inland Lakes and Streams is in Part 301 and Water Resources Protection is under Part 31 of the Act. Statutory cite references in this Final Order are pursuant to the recodified Act, MCL 324.101 et seq.; MSA 13A. 101 et seq., as amended.

On October 1, 1995, the (MDEQ) was created by Executive Order 1995-18. Through that Executive Order, the authority to administer these statutes was transferred from the MDNR to the MDEQ. The hearing on this matter was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560(101) et seq.

Kenneth E. Klammer is the applicant for a permit pursuant to the Acts and is the Petitioner in this case. The professional staff of the MDNR, currently the MDEQ, is charged with the day-to-day implementation of the Acts and is the Respondent in this case. The Intervenor, Edward Lysogorski, is an adjoining landowner to the east and south of the property at issue. The Petitioner was represented by Geoffrey H. Seidlein, Esq. The Respondent was represented by Stephen F. Schuesler, Assistant Attorney General. Intervenor appeared in Pro Persona.

The Petitioner testified on his own behalf and presented three witnesses; Charles S. Dodgers, MDNR, Land and Water Management Division; Robert Zbiciak, MDNR, Land and Water Management Division; Robert M. Tufts, P.E. of Williams, Osminski & Associates. The Respondent presented five witnesses, Jill Thieme; Patrick Gilles; Larry J. Protasiewicz, P.E. of Spicer Engineering; Charles S. Dodgers, MDNR, Land and Water Management Division; Wallace Wilson, P.E., MDNR, Land and Water Management Division. The Intervenor testified on his own behalf.

Sixty-five exhibits were entered into the record. A list of exhibits is attached to this Opinion and Order. The Petitioner's exhibits are labelled "P"; the Intervenor's exhibits are labelled "I"; and the Department's exhibits are labelled "R".

The Petitioner is the owner of property located in Bridgeport Township, Saginaw County, Michigan. Petitioner's property is adjacent to the Cass River and what has been referred to as the "Salt Run Creek or Salt Run Lick". The Petitioner's Application requested he be permitted to restore drainage of existing silted ditches, while providing a stable levee to protect agricultural land from flooding. It was his stated intention to use the dredge material to expand an existing levee which had previously broached. [Exhibit P-31]. The project was reviewed and public noticed by the Department under the Inland Lakes & Streams Act, 1972 PA 346, as amended. [Exhibit R-12]. The Application was denied by Department staff by letter dated July 1, 1991. [Exhibit P-42]. Based on the denial of the Application, Mr. Klammer filed a petition for a contested case hearing. [Exhibit R-23].

On July 9, 1982, Mr. Klammer received an Inland Lakes & Streams Act and Floodplain Regulatory Act permit from the MDNR to construct a levee, 3,500 feet in length adjacent to the Cass River with an associated spillway and discharge tube, and to construct another levee, 1,500 feet in length adjacent to the Salt Run Creek or Salt Run Lick, with an associated discharge tube. [Exhibit R-1]. The structures permitted were constructed by Mr. Klammer and are reflected in green on Exhibit I-7. Seven years after completion of this permitted activity, Mr. Klammer dredged ditches, hereinafter referred to as the A-B-C facility, and piled the spoils along their length.

On September 11, 1989, MDNR employee Charles Dodgers received a telephone complaint, from Mr. Lysogorski, that a ditch and berm had recently been constructed, in a wetland, on Mr. Klammer's property. [Exhibit R-2]. Tr, 11/23/94, pp 129-132 (Dodgers). On September 13, 1989, Mr. Dodgers' on-site inspection revealed a recently constructed deep ditch and levee shown between points "A" and "B" and "C" on Exhibit I-7. Tr, 11/23/94, p 135, et seq. The ditch was dug through a forested wetland of predominantly silver maple. Tr, 11/23/94, p 153. The soil was raw and lacking in vegetation. Tr, 11/23/94, p 136. Mr. Dodgers estimated the ditching took place in early September of 1989. Tr, 11/23/94, p 143 (Dodgers). Photographs taken during Mr. Dodgers' on-site inspection were admitted as Exhibits R-3B and R-3C. See also Exhibit R-3, which is the field report made contemporaneously with the September 13, 1989, site inspection.

On September 28, 1989, MDNR staff sent a certified letter to Mr. Klammer informing him that unauthorized ditching and diking had taken place on his property which was not permitted by the 1982 permit and directing Mr. Klammer to restore the unauthorized earth changes to the original grade. [Exhibit P-23]. On November 1, 1989, Mr. Dodgers and Mr. Klammer met on-site. During that meeting, Mr. Klammer indicated he wanted to apply for a permit to build a dike to protect his farmland. In response, Mr. Dodgers told him a dike might be built at another location to avoid wetland impacts. Tr, 11/23/94, pp 157-160.

More than seven months later, Mr. Lysogorski again complained to Mr. Dodgers that there was flooding on his property and Mr. Klammer had not restored the unauthorized earth changes to original grade, as requested. Tr, 11/23/94, p 161 (Dodgers). On August 2, 1990, MDNR staff sent another certified letter to Mr. Klammer, ordering him to "cease and desist" all unauthorized activities and to completely restore the wetland area to its original configuration and elevation. [Exhibit P-25].

On August 10, 1990, Mr. Klammer appeared at the MDNR office in Bay City and indicated that he had been sick, but still wanted to apply for a permit to keep the ditches and levees. Mr. Dodgers indicated a levee may be allowed at another location to protect existing crop land, but the disturbed wetland would have to be restored to allow for the natural flow of water and wetland function, as ordered. Tr, 11/23/94, p 162 et seq. (Dodgers). See also Exhibit R-6.

On November 7, 1990, MDNR staff received a Western Union Mailgram from Mr. Lysogorski claiming continued flood damage on his property due to the unauthorized activities by Mr. Klammer. [Exhibit R-7]. In response to that communication, Mr. Dodgers visited the site again on November 9, 1990. [Exhibit R-8A]. Tr, 11/28/94, p 8, et seq. (Dodgers). He observed water approximately 2 feet higher on the Petitioner's property than on the Lysogorski side of the unauthorized dike, between points B & C, as depicted on Exhibit I-7. Tr, 11/28/94, p 9, et seq. He also observed another recently unauthorized ditch and berm to the west of the A-B-C facility, providing another outlet for ponded water in the wetland. He described the dimensions of this new ditch and dike as 200 feet long, 5 feet wide, and 6 feet deep. Tr, 11/28/94, p 16. The ditch and dike, referred to as the "emergency ditch", was not a subject of this case. Five color photographs from the November 9, 1990, site inspection were admitted as Exhibits R-8B through R-8F and described by Mr. Dodgers at Tr, 11/28/94, p 17, et seq.

On November 13, 1990, Mr. Klammer came into the MDNR's Bay City Office and met with Mr. Dodgers. Tr, 11/28/94, p 21, et seq. See also Exhibit R-9. Mr. Dodgers again explained to Mr. Klammer his B-C dike was blocking the flow of water from Mr. Lysogorski's property and causing drainage problems. Mr. Klammer responded he needed additional time in order to remove corn from his field. No commitment was made by Mr. Klammer to remove the dike.

On February 20, 1991, Mr. Klammer filed an after-the-fact Application For Permit to allow the A-B-C dike and ditch facility to remain. This Application did not include any reference to the ditch and dike located to the west of the B-C facility which was discovered by Mr. Dodgers on November 9, 1990. The Application was processed by the MDNR Permit Consolidation Unit in Lansing. After Mr. Klammer responded to a March 7, 1991, request by the Permit Consolidation Unit for additional information, the Application was deemed administratively complete in early April, 1991. [Exhibits R-11A and P-36]. The Application was thereafter referred to MDNR's Bay City Office and public noticed on April 12, 1991. [Exhibit R-12].

Meanwhile, in early March, 1991, Mr. Lysogorski again inquired of Mr. Dodgers about the status of the unresolved violation. Tr, 11/28/94, p 23. In response, Mr. Dodgers requested the assistance of the Law Enforcement Division to obtain a criminal warrant on Mr. Klammer. Tr, 11/28/94, p 32. Criminal proceedings were ultimately commenced by the Saginaw County Prosecutor's Office but were held in abeyance pending the resolution of this administrative proceeding.

The Petitioner in this contested case hearing asserts he is exempt from the requirement for a permit under the Acts, currently found in 1994 PA 451, as amended. He has characterized his activity as maintenance or improvement of an existing agricultural drain under Section 6(2)(h)(i) of the GAWPA [Part 303, Section 30305(2)(h)(i)] and Section 4(d) of the ILSA [Part 301, Section 30103]. In addition, he contends there are no adverse impacts to the floodplain under either the Water Resources Commission Act or Michigan Environmental Protection Act.

FINDINGS OF FACT

The first issue presented is whether or not the subject property is a wetland as defined by the Act. Wetland is currently defined in Section 30301(d) 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) Hydrological indicators for water, and
3) The soil characteristics.

In his Final Brief, the Petitioner asserts additional evidence was needed for an accurate determination of the location of and whether or not a wetland exists on the subject site. Mr. Dodgers qualified as an expert witness in wetland determinations and delineation. As an expert witness, Mr. Dodgers need only to assist the trier of fact, and as such, the court may require additional facts, which support an underlying decision, be set forth. MRE 702, 703. Mr. Dodgers testified the A-B-C facility and the emergency ditch were constructed in a wetland, as defined by the Act. Evidence of seasonal ponding and silver maple vegetation on Mr. Klammer's property are found to be sufficient and support Mr. Dodger's opinion that the subject property is a wetland. Tr, 9/7/94, pp 37-38, and pp 66-67. In addition to silver maples and seasonal ponding, sparse understory and compacted leaf litter, due to ponding, were also found by Mr. Dodgers. Tr, 11/23/94, pp 153-154. The Petitioner offered Mr. Robert M. Tufts, P.E., as an expert in the delineation of wetlands. Although Mr. Tufts has extensive experience in drainage and drainage problems, including that of a county drain commissioner, he admitted he lacked knowledge regarding wetland vegetation, including silver maples. Mr. Tufts had taken no courses in wetland delineation or wetland vegetation identification such as those offered by the United States Environmental Protection Agency or any other agency offering a similar course. Based upon these facts, this Tribunal refused to quality Mr. Tufts as a "wetlands expert".

I find, as a Matter of Fact, the subject parcel of land, where the A-B-C facility exists, is a wetland as defined in Part 303.

The second issue is whether this wetland parcel is subject to regulation under the Act. Subsection (d)(i) of Section 30301, MCL 324.30301(d)(i)(ii), provides criteria which must be found before the Department may regulate a wetland. It must be either:

(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.

As applicable to this site, 1988 AACS, R 281.921(1)(b)(iii) further defines "contiguous" as:

(b) `Contiguous' means any of the following:

(iii) A wetland is partially or entirely located within 500 feet of the ordinary high watermark of an inland lake or pond or a river or stream or is within 1,000 feet of the ordinary high watermark of one of the Great Lakes or Lake St. Clair, unless it is determined by the department, pursuant to R 281.924(4), that there is no surface water or groundwater connection to these waters.

The subject wetland parcel is contiguous to the Cass River. [Exhibit I-7]. Mr. Charles Dodgers testified the wetland is contiguous to the Cass River and Salt Run Creek. Tr, 9/7/94, p 97 & Tr, 11/23/94, p 142.

I find, as a Matter of Fact, that the subject parcel is a regulated wetland.

Section 30305(2), MCL 324.30305(2), allows certain activities in a regulated wetland without the necessity of a permit. Specifically, Section 30305(2)(h)(i) allows the maintenance, operation or improvement, which includes straightening, widening or deepening, of an existing private agricultural drain.

The issue is whether a private agricultural drain existed where the A-B-C facility was built. The after-the-fact Application for Permit submitted by Petitioner, [Exhibit P-31], does not indicate the existence of a drain or ditch at the location of the A-B-C facility. It only indicates the existence of "old ditches" in other areas and alludes to the existing ditch, which had filled with water and soil from a deteriorating levee on adjacent riparian property. In fact, the top drawing on plate three of four, attached to the Application, indicates no drain or ditch in the area of the A-B-C facility.

Additionally, Mr. Charles S. Dodgers testified his review of the area, which included a 1982 aerial photograph, did not disclose the existence of a drain and seemed to indicate the area where the A-B-C facility had been constructed was merely a wooded area. Tr, 9/7/94, pp 57-58. A neighbor, Mr. Patrick Gillis, testified there was no ditch present prior to the Petitioner's construction. Tr, 11/29/94, pp 26-27. The Intervenor, Mr. Edward P. Lysogorski, testified the only ditch he observed was the one that paralleled the A-B ditch. Tr, 11/29/94, pp 72-73.

The Petitioner testified that when he attempted to work the land shortly after purchasing the property in 1978, he observed what he characterized as remnants of a ditch in the area of the activity. He described the remanent ditch as approximately 15 feet wide with scrub brush and silt present. Tr, 9/23/94, p 87. Mr. Dodgers acknowledged that at the time of his on-site inspection on November 1, 1989, Mr. Klammer advised him that he had only deepened the ditch and raised the berm. Tr, 9/7/94, p 64. Mr. Klammer admitted the primary objective in his construction of the A-B-C facility was to create a dike. The ditch is where the material for the construction of the dike was taken. It appears the ditch itself is not of primary importance to Mr. Klammer.

Mr. Dodgers further observed and testified the ditch and berm installed by the Petitioner were in the southern portion of the property and he saw no evidence of any farming or agriculture in that immediate area. Tr, 9/7/94, p 76. Although there was farmland "far to the north," the ditch was not servicing that area and he did not, therefore, consider the project as an agricultural use. Tr, 9/7/94, pp 79-80.

I find, as a Matter of Fact, at the time the A-B-C facility was constructed, a private agricultural drain did not exist and the statutory exemption from the requirement of a permit is not applicable.

The Petitioner's activity involved dredging, placing dredged material and drainage of surface water, in a regulated wetland. Under Section 30304 of Part 303 of Natural Resources Environmental Protection Act, all such activities are prohibited without a permit, as follows:

Except as otherwise provided by this Act or by a permit obtained from the Department under sections 30306 to 30314, a person shall not do any of the following:

(a) Deposit or permit the placing of fill material in a wetland.

(b) Dredge, remove, or permit the removal of soil or minerals from a wetland.

(c) Construct, operate, or maintain any use or development in a wetland.

(d) Drain surface water from a wetland.

In order to issue a permit for the activity requested by the Petitioner, the criteria of Section 30311 of the Act, MCL 324.30311(1) must be considered.

(1) A permit for an activity listed in section 30304 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 Part 303, Wetland Protection, of the NREPA. These criteria are found in Section 30311(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 asserts his private need for the ditches and dikes is substantial. Mr. Klammer testified the effect of the maintenance work improves drainage of a tilled ten acre parcel in the northeast corner of his property, Tr, 11/18/94, p 113. Mr. Klammer also contends the dredging restores the historical drainage pattern of water from the Lysogorski property flowing south and, ultimately, discharging into the Cass River. Tr, 11/18/94, p 113.

Mr. Robert M. Tufts, a civil engineer in the employ of Williams, Osminski & Associates, analyzed the project at the behest of the Petitioner. Mr. Tufts stated, on cross-examination by Mr. Lysogorski, the so called "A-B-C" drain facility serves only to drain approximately one-quarter to one-half acre in the northeast corner of the property, and the vast majority of the water comes from the Lysogorski property and other adjacent owners. Tr, 11/21/94, p 127. Furthermore, the primary purpose of the installation of both dikes and drains is to protect the southwest perimeter of the Petitioner's property and to provide relief from incoming surface drainage from adjacent property. Tr, 11/21/94, p 126. Mr. Larry J. Protsiewcz of Spicer Engineering testified that in his estimation there was little to no water from the same north easterly portion of the Petitioner's property flowing into the so-called A-B-C drain. Tr, 11/23/94, p 68.

There does not appear to be any public need for the proposed project. The proposal is for the avowed purpose of providing protection and drainage of Petitioner's property. As to the private need, it is evident the installation only minimally drains the Petitioner's property and, therefore, does not appear to provide any compelling private need.

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

Petitioner maintains that moving the facility to another location on the property would not accomplish his purpose and there are, therefore, no alternatives.

For the expressed purposes of protecting Petitioner's farmland from flooding, Mr. Charles Dodgers testified it would have been possible to construct a protective dike at a different location outside of the wetland, rather than having the A-B-C facility within the wetland. Tr, 11/23/94, p 160.

Mr. Robert Tufts testified a random four inch tile would adequately drain the ponded area indicated by an "S" on Exhibit I-7, and there would be no need to ditch it. Tr, 11/21/94, p 125.

Mr. Larry Protasiewicz testified drainage would also occur if the A-B-C facility were filled in and the dike removed. Tr, 11/23/94, pp 83-86. Drainage in section 26 on Exhibit I-7 would occur if it were not for the ditch and dike. Tr, 11/23/94, pp 125-126.

I find, as a Matter of Fact, feasible and prudent alternative locations and methods to the proposed activities are available. Namely, the facility could be located elsewhere or adequate drainage would occur if the property is restored to its natural state. Further, feasible and prudent alternative locations and methods were not adequately explored by Mr. Klammer.

(c) The extent and permanence of the beneficial or detrimental effects which the proposed activity may have on the public and private uses to which the area is suited, including the benefits the wetland provides.

Mr. Robert Tufts testified the dikes benefit the natural waterflow of Salt Run Creek or Salt Run Lick. Tr, 11/23/94, pp 155-156. He further testified the drain benefits Mr. Lysogorski's property, in that it facilitates drainage. Tr, 11/23/94, pp 157-158. Mr. Klammer testified the dike and drain facility protect his agricultural property which allows him to farm. Tr, 11/29/94, p 159.

Mr. Larry Protasiewicz testified the deposit of the spoils, creating a pile/dike, has resulted in excess of four feet of ponding on Mr. Lysogorski's neighboring lot. Tr, 11/23/94, pp 60-61. Further, the A-B-C facility drains Mr. Lysogorski's property more then it does Mr. Klammers. Tr, 11/23/94, pp 64-65.

Testimony by, Ms. Jill Thiemes, a lifetime resident of the area, noted recent changes in the characteristics of Salt Run Creek or Salt Run Lick. She stated the water level is very low, water is no longer flowing and is covered with green scum. The smell has changed from a fishy one to a swampy one and she noted it was difficult keeping mosquitos off of her when she walked near the Creek. Ms. Thiemes also testified that in the past wildlife used to be abundant, but now wildlife numbers appear to be diminished. Tr, 11/29/94, p 4 et seq. The Project Review Report, under the "Permit Application Review Criteria," states the project poses potential adverse impact upon the water circulation, wildlife and water quality of the area.

I find, as a Matter of Fact, there is little benefit from the project on the Petitioner's property, and there is a substantial and permanent detriment to adjoining riparian property and to the wetlands in and around the project area.

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

There is no testimony on this record as to the cumulative impacts.

(e) The probable impact on recognized historic, cultural, scenic, ecological or recreational values on the public health or fish or wildlife.

The Petitioner testified the presence of small wildlife has increased drastically since his diking, with the presence of blue herons being especially predominant. The large wildlife population, like deer, has decreased. Tr, 9/23/94, pp 131-132.

The recreational opportunities once enjoyed by Mr. Lysogorski on his property have diminished. He testified there is now only a small window of opportunity for bow hunting carp, and the ability to ice skate is all but non-existent. Tr, 9/23/94, pp 68-69. Ms. Jill Thiemes testified she used to be able to fish, raft and ice-skate on the Salt Run Creek or Salt Run Lick. Now, the water level is low and no longer flowing, and animal life is greatly diminished. Tr, 11/29/94, p 4, et seq.

There is testimony on the record as to the project's impact on ecological, recreational values and public health. The ecological impact of the project is extensive. The wetland values for the area have been disrupted, if not partially destroyed. There was testimony regarding the recent visible difference in the character of Salt Run Creek or Salt Run Lick; the least of which has produced a proliferation of mosquitos, which may or may not affect the public health. There was testimony that recreational values have been impacted, as many of the activities that were enjoyed on the Creek for many years, namely skating, fishing, swimming and hiking can no longer take place or have been negatively impacted by the project. Tr, 11/29/94, p 4, et seq. The greatest impact has been the on-going threat of flooding of upland properties. See Exhibits I-26A, I-27, I-28A, I-29A and I-30. Flooding not only impacts or destroys property and possessions; it has the potential to effect the public health. As previously discussed, there has been an impact on wildlife. There was no testimony on the cultural and fisheries value of the area.

I find, as a Matter of Fact, the activity poses an adverse impact on the recreational values as testified to by Mr. Lysogorski and Ms. Thiemes. Wildlife, as well as the ecological values of the wetland have also been impacted. The potential for flooding causing damage to adjacent property is continually present. Due to changes in the water flow characteristics and the potential for flooding, a threat to the public health is also present.

(f) The size of the wetland being considered.

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

The record does not indicate the size of the subject wetland or the amount of remaining wetland in the vicinity.

(h) Proximity to any waterway.

The wetland is contiguous to the Cass River.

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

There would appear to be an economic benefit to the Petitioner if he, in fact, farmed the property. There is no testimony as to the economic impact on the adjacent owners, although the diminution of recreational value would, assumedly, have an adverse impact, as would the on-going threat of flooding of private property.

After considering each of the above criteria, the statute requires a balancing of the benefits against the detriments in order 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 30311(1) also requires a determination as to whether a permit is necessary to realize the benefits derived from the activity. The agricultural benefits that would be derived from the activity, as previously stated, can be accomplished by other means. I find, as a Matter of Fact, the permit, as applied for, is not necessary to realize the benefits derived from the activity.

Section 30311(1) requires a third determination; whether the proposed activity is otherwise lawful. I find, as a Matter of Fact, the proposed project is not otherwise lawful. The Application for Permit was applied for after-the-fact. The project has been initiated without the benefit of proper permits, and the negative impacts of the same project have not been mitigated to the extent possible.

Sec. 30311(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 findings of necessity made by other state agencies.

Sec. 30311(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, I find an unacceptable disruption has resulted to the aquatic resources as a direct consequence of the project. I find, as a Matter of Fact, the proposed activity is not primarily dependent upon being located in a wetland. I find, as a Matter of Fact, the Petitioner has a feasible and prudent alternative to the proposed activity. As previously found, the facility could be placed elsewhere or adequate drainage would occur if the property was restored to its natural state. Feasible and prudent alternative locations and methods to accommodate drainage were not adequately explored by Mr. Klammer prior to undertaking the project.

1. I conclude, as a Matter of Law, the subject property is a wetland which is contiguous to an inland lake or stream. Thus, it is a regulated wetland and a permit is required, pursuant to Section 30304(a) and (b) of the Act.

2. I conclude as a Matter of Law, the Applicant, Kenneth E. Klammer is the proper Petitioner in this matter. I also conclude the Application For Permit to approve the project was properly processed.

3. I conclude as a Matter of Law, the proposed activity is not in the public interest, pursuant to Section 30311(1).

4. I conclude as a Matter of Law, the proposed activity will cause an unacceptable disruption to aquatic resources.

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

6. I conclude as a Matter of Law, there are feasible and prudent alternatives to the proposed project.

7. I conclude, as a Matter of Law, the Petitioner's project is not exempt under Section 30305(2)(h)(i) of the Act.

The Inland Lakes and Streams Act, 1972 PA 346, as amended, is an Act to regulate activity taking place in inland lakes and streams by protecting riparian rights, the environment and the public trust in inland lakes and streams.

The Inland Lakes and Streams Act (ILSA), currently Part 301 of the NREPA, regulates activities that occur below the ordinary high water mark of inland lakes and streams.

Section 30101(e) of the Act, MCL 324.30101(e), defines an inland lake or stream as:

`Inland lake or stream' means a natural or artificial lake, pond or impoundment; a river, stream or creek which may or may not be serving as a drain . . . ; or any other body of water which has definite banks, a bed and visible evidence of a continued flow or continued occurrence of water . . . .

Section 30102 of the Act, MCL 324.30102, provides for certain activities that are prohibited without a permit. They are, in part:

(d) Create, enlarge or diminish an inland lake or stream.

(e) Structurally interfere with the natural flow of an inland lake or stream.

There is no contention any activity within the jurisdiction of ILSA, related to the Cass River, exists. The issue is whether the Salt Run Creek or Salt Run Lick has characteristics which invoke jurisdiction under Section 30101 of the Act. Further, there is no contested issue pursuant to the northern terminus of the so-called B-C drain being in the area of the Salt Run Creek or Salt Run Lick.

Mr. Klammer testified that, as of September 21, 1994, there was no evidence of consistent flow in the watercourse, although some areas always held water. Tr, 9/23/94, p 102. Mr. Wallace Wilson, a civil engineer employed as the Chief of the Flood Hazard Management Unit of the Land and Water Management Division of the MDEQ, testified that in August of 1994 he observed evidence of continued flow, a bed and banks in the Salt Run Creek or Salt Run Lick. Tr, 11/21/94, p 147. Ms. Jill Thieme grew up in the area and testified that from 1962-1972 she, her siblings, and friends ice-skated, fished and rafted on the stream. When she observed the watercourse in 1994, there did not appear to be a waterflow; the standing water was covered with algae and smelled like a swamp, and wildlife had virtually disappeared. Tr, 11/29/94, p 4 et seq.

Mr. Robert Zbiciak testified when he observed the watercourse in 1991 it had a bed, banks and virtually consistent waterflow. Tr, 9/7/94, p 151. His expert opinion is unequivocally the watercourse was a stream under ILSA. Tr, 9/7/94, p 152.

Mr. Charles Dodgers testified a watercourse was flowing through the area at one point. Tr, 9/7/94, p 83. Mr. Dodgers further testified the previous watercourse appeared to have flowed in a westerly direction; then curved up to the north, where it eventually converged with Salt Run Creek or Salt Run Lick. Now, the water is intercepted by and follows the A-B-C facility. Tr, 9/7/94, p 92.

Mr. Tufts testified the so called "A-B-C drain facility" serves only to drain approximately one-quarter to one-half acre in the northeast corner of the property, and the vast majority of the water comes from the Lysogorski property and other adjacent owners. Tr, 11/21/94, p 127. Furthermore, the primary purpose of the installation of both dikes and drains is to protect the southwest perimeter of the Petitioner's property and to provide relief from incoming surface drainage from adjacent property. Tr, 11/21/94, p 126. Mr. Tufts testified that when the water flowed off of the Lysogorski property and on to the Klammer property, it would have fanned out and moved to the south. He disagreed that the Salt Run Creek, or Lick, was a stream at the point the A-B-C facility intercepts water from the Lysogorski property. As the Salt Run Creek, or Lick, leaves the Klammer property, it must pass under a dike lawfully constructed by the Petitioner which has a door, or flap, which allows water to leave the property. The door, or flap, will not allow water to flow back into the Klammer property. This is an indication of the water flow direction in Salt Run Creek, or Lick. The indication is that it flows in the direction which the Department has alleged and not as asserted by Mr. Tufts.

I Find, as a Matter of Fact, the so-called Salt Run Creek or Salt Run Lick is an inland stream under the ILSA because it has a definite bank, bed and visible evidence of continued occurrence of water and waterflow. I Find, the Petitioner's project activity, specifically the A-B-C facility, structurally interferes with the natural flow of the water in the stream by directing it southward, when its natural flow is to the north.

I further find, as a Matter of Fact, a permit is necessary for the project, as the activity is below the ordinary high water mark of the stream and does not constitute construction or maintenance of a private agricultural drain under Section 30103 of the ILSA.

Section 30106 of the Act, MCL 324.30106, provides the prerequisites to issuing a permit.

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. . .

Section 30106 of the Act also requires:

In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon the waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. [MCL 324.30106.]

Based on the foregoing, I find, as a Matter of Fact, the activity has had an adverse impact on the riparian rights of adjacent owners. In addition, the use of the stream for recreation and wildlife has been adversely impacted.

1. I conclude, as a Matter of Law, the Petitioner's activities are subject to the provisions of Part 301, Inland Lakes and Streams, MCL 324.30101 et seq., of the NREPA.

2. I conclude, as a Matter of Law, a permit is necessary to carry on the work which the Petitioner has done.

3. I conclude, as a Matter of Law, the owners of adjacent upstream property have riparian rights. I conclude, there is an adverse impact on riparian rights of the adjacent owners, specifically, Mr. Lysogorski.

4. I conclude, as a Matter of Law, the Petitioner's activities have adversely affected the waters from which, or to which, the Salt Run Creek, or Lick, flows. MCL 324.30106.

5. I conclude, as a Matter of Law, the Petitioner's project is not exempt under Section 30103(d) of the Act.

6. I conclude, as a Matter of Law, the body of water called Salt Run Creek or Salt Run Lick is an inland stream pursuant to the Act.

The Water Resources Commission Act, Floodplain Regulatory Authority, 1929 PA 245, as amended, currently Section 3108 of 1994 PA 451, as amended, states:

A person shall not occupy or permit the occupation for residential, commercial, or industrial purposes of lands or to fill or grade or permit the filling or grading for any purposes other than agricultural, of lands in the floodplain, stream bed, or channel of any stream, as ascertained and determined for the record by the department, or to undertake or engage in any activity on or with respect to the lands which is determined by the department to harmfully interfere with the discharge or stage characteristics of a stream, unless the occupation, filling, grading or other activity is permitted under this part. [MCL 324.3108.]

The issues presented are whether or not the activity occurs in a floodplain, and whether or not that activity is exempt from the criteria of the Act.

Mr. Charles Dodgers testified, based on his observations, the activities are located within the floodplain of the Cass River, Tr, 9/7/94, pp 61-62. The activity is not exempt as an agricultural drain because it does not drain agricultural land. Tr, 9/7/94, pp 79-80. This testimony is unrefuted. Mr. Robert Tufts, a consultant who testified on Petitioner's behalf, stated that although floodplain information is available from the MDNR, he did not avail himself of said information. Tr, 11/18/94, pp 159-160.

Mr. Wallace Wilson, an MDNR "specialist" in floodplain management, is the supervisor of a Flood Hazard Management Unit in the Upper Peninsula and the northern half of the Lower Peninsula, and, as such, is involved in the permitting process. Exhibit R-40. Tr, 11/21/94, p 139 (Wilson). Mr. Wilson qualified as an expert witness in determinations and delineation of floodplains. He testified the A-B-C facility is constructed in a floodplain of the Cass River, as defined by the Act. See Exhibit I-7. Tr, 11/21/94, p 138 (Wilson).

I find, as a Matter of Fact, the activity is within the floodplain of the Cass River, and a permit is required under the Act.

1. I conclude, as a Matter of Law, a permit is necessary under Part 31 of the Act to maintain the activity, in that such activity constitutes grading and filling, and, as previously concluded under Part 303 and 301 Conclusions of Law, is not for agricultural purposes.

2. I further conclude, as a Matter of Law, the activity, for reasons previously articulated, harmfully interferes with the discharge and stage characteristics of the Cass River, as it is located within the floodplain of the Cass River.

Based on the Findings of Fact and Conclusions of Law, it is determined the A-B-C facility can not be licensed pursuant to Part 303, Wetland Protection, Part 301, Inland Lakes and Streams and Part 31, Floodplain Occupancy Authority, of 1994 PA 451, as amended.

Therefore, IT IS ORDERED: the Petitioner's application for a permit requesting the A-B-C facility be permitted, is DENIED.

Dated: March 19, 1996

________________________________

Richard G. Lacasse, Acting Chief
Administrative Law Judge

SUBJECT: Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended,(Formerly the Goemaere-Anderson Wetland Protection Act [203])
Petition of Kenneth E. Klammer
File No. 91-8-30

P-5 Color photograph taken in Fall 1991, depicting #1 (south end of oxbow as marked on Exhibit I-7) looking north at #2 (a lane as marked on I-7). Entered 9/23/94
P-6 Color photograph taken Fall 1991, near #2 looking south. Entered 9/23/94
P-9 Color photograph taken in Fall 1991, between #1 & #2 looking south. Same as P-10 except it was taken another 50 feet back. Entered 9/23/94
P-10 Color photograph taken in Fall 1991, looking south of #1 after the "emergency" ditch was dug. Entered 9/23/94
P-23 September 28, 1989, correspondence from DNR, Steven Spencer & Lt. Paul Schlueter, to Kenneth Klammer. Cease & desist and restoration order. DNR file #897320. Entered 9/7/94
P-25 August 2, 1990, correspondence from DNR, Robert Zbiciak & Lt. Paul Schlueter, to Kenneth Klammer. Cease & desist and restoration order. DNR file #89-73-20. Entered 9/7/94
P-31 February 14, 1991, Application for Permit signed by Kenneth Klammer. Attached are 4 drawings of proposed activity. DNR file #91-8-30. Entered 9/7/94
P-33 March 7, 1991, request for additional information from DNR, Permit Consolidation Unit, signed by Sally Stoll, to Kenneth Klammer. DNR file #91-8-30. Entered 9/7/94
P-36 April 1, 1991, correspondence from Kenneth Klammer to Sally Stoll, transmitting additional information. Attached are two drawings. DNR file #91-8-30. Entered 9/7/94
P-40 June 19, 1991, Project Review Report signed by R. Zbiciak. DNR file #91-8-30, also references DNR file #89-73-20. Entered 9/7/94
P-42 July 1, 1991, correspondence from DNR, Robert Zbiciak, to Kenneth Klammer denying permit application. DNR file #91-8-30. Entered 9/7/94
P-52 November 5, 1992, correspondence from Robert M. Tufts, P.E. to Geoffrey Seidlein regarding Tufts' inspection of Klammer's property. Entered 11/18/94
P-57 Copy of map showing the outlet for the Pribil Drain. Entered 11/21/94
P-58 Preliminary Plat Map prepared December 5, 1956 by Spicer Engineering. Entered 11/21/94

RESPONDENTS' EXHIBITS

R-1 July 9, 1982, Permit issued to Kenneth Klammer for levee  construction. Entered 9/30/94
R-2 September 11, 1989, MDNR interoffice memo to C. Dodgers regarding Lysogorski's complaint. Entered 11/23/94
R-3 September 13, 1989 Project Review Report. Entered 11/23/94
R-3B Color photograph taken September 13, 1989, of Klammer berm. Entered 11/23/94
R-3C Color photograph taken September 13, 1989, of Klammer berm and ditch. Entered 11/23/94
R-6 August 10, 1990, Telephone Conversation Record by C. Dodgers regarding conversation with K. Klammer. Entered 11/23/94
R-7 November 7, 1990 Western Union Mailgram from E. Lysogorski to DNR Law Enforcement. Entered 11/28/94
R-8A November 9, 1990 Violation Checklist. Entered 11/28/94
R-8B, R-8C, R-8D, R-8E, R-8F Five Color Photographs of Klammer property taken by C. Dodgers on November 9, 1990 site inspection. Entered 11/28/94
R-9 C. Dodger's handwritten notes of his November 13, 1990 meeting with K. Klammer in the DNR office. Entered 11/28/94
R-11A Request for additional information from DNR Permit Consolidation Unit. Entered 11/28/94
R-24A C. Dodger's handwritten notes dated January 30, 1992 from his site inspection. Entered 11/28/94
R-24B, R-24C, R-24D, R-24E, R-24G, R-24H Six Color photographs taken by C. Dodgers during his January 30, 1992 site inspection. Entered 11/28/94
R-12 April 12, 1991, Public Notice of DNR file #91-8-30. Entered 9/7/94
R-16B,16C,16D June 16, 1991, color photographs of subject property. Entered 9/7/94
R-23 August 27, 1991 Petition for Contested Case Hearing. Entered 9/30/94
R-26 September 14, 1988 Letter from USDA, Soil Conservation Service, Gerald Malone, to K. Klammer denying reconsideration of wetland reconsideration.  Entered 9/30/94.
R-34 Aerial photo of subject property taken July 3, 1988.  Entered 11/28/94
R-39 Map of subject property created by witness C. Dodgers, with additions by witness R. Zbiciak, during testimony on September 7, 1994. Entered 9/7/94
R-40 Curriculum Vitae of Wallace Wilson. Entered 11/21/94

INTERVENOR'S EXHIBITS

I-1 August 16, 1994 correspondence from Larry J. Protasiewicz, P. E., to E. Lysogorski regarding the site drainage study conducted by Spicer Engineering. Entered 11/23/94
I-2 Drawing of Drainage Study done By Spicer Engineering.  Entered 11/23/94
I-3 Soil Survey of Saginaw County, issued January 1994. Entered 11/18/94
I-6 USGS topography map, revised 1973, of Birch Run North, MI. Entered 9/30/94
I-7 Enlargement of a portion of USGS Survey map (Exhibit F-6), Birch Run North, Michigan. Various delineations made by K. Klammer and E.Lysogorski during their testimony. Entered 9/23/94
I-8 Enlargement of National Wetlands Inventory Map.  Entered 11/21/94
I-9 Copy of a section of the National Wetlands Inventory Map with highlighting of the wetland on the subject property.  Entered 11/21/94
I-12 Deed of subject property recorded May 12, 1978.  Entered 9/30/94
I-18 Map the subject property from the Saginaw Bay Mosquito Control Commission and the Saginaw County Drain Comm.  Entered 11/21/94
I-23 Map of April 5, 1978, Survey with sheet 4 of 5 added December 21, 1981. Entered 11/18/94
I-24 Sheet 5 of 5 of Exhibit I-23. Entered 11/18/94
I-26A Color photograph of Lysogorski and Klammer property taken by Ed Lysogorski from an airplane on June 27, 1994. Entered 11/29/94
I-27 Color photograph of Lysogorski property taken by Pat Gilles on June 30, 1994. Entered 11/29/94
I-28A Color photograph of Lysogorski property taken by Edward Lysogorski on June 30, 1994. Entered on 11/29/94
I-29A, I-29B, I-29C Three color photographs of Lysogorski and Klammer property taken by Ed Lysogorski on July 2, 1994.  Entered 11/29/94
I-30 Color photograph of Lysogorski property taken by Ed Lysogorski on July 25, 1994. Entered on 11/29/94
I-35 August 4, 1993 correspondence from Kenneth Klammer to the MNDR, Office of Administrative Hearings, objecting to the Intervention of Edward Lysogorski in the contested case.  Entered 11/18/94
I-37 Boundary Survey done for the Estate of Evelyn Bauer, dated April 5, 1978. Entered 11/21/94

March 19, 1996

Mr. Geoffrey H. SeidleinHubbard, Fox, Thomas,             Department of Attorney General
White & Bengston, P.C. Natural Resources Division
5801 West Michigan Avenue P.O. Box 30028
P.O. Box 80857 Lansing, Michigan 48909
Lansing, Michigan 48909-0857
6822 Dixie Highway
Bridgeport, Michigan 48722

SUBJECT: Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended,(Formerly the Goemaere-Anderson Wetland Protection Act [203])

Petition of Kenneth E. Klammer
File No. 91-8-30

Gentlemen:

Enclosed is Judge Lacasse's Final Order in the above-captioned matter. The Final Order constitutes the final decision of the Michigan Department of Environmental Quality pursuant to Delegation Letter No. OAH-324.101 et seq.-01. Any appeal of this matter must be made in accordance with law. This Office's file has been transmitted to William C. Larsen of the Land & Water Management Division. Please direct any questions regarding the contents of the file to Mr. Larsen at the address provided below. Thank you.

Very truly yours,
 

Dennis Mack Legal Assistant

c: William C. Larsen, Compliance and Enforcement Unit, Land & Water Management Division, Michigan Department of Environmental Quality, P.O. Box 30028, Lansing, Michigan 48909-7258