SUBJECT: Part 303, Wetland Protection and Part 31, Floodplain Occupancy Authority of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended.

Petition of Charles Marsh
File No. 94-12-220

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision (PFD) dated September 1, 1997. In a letter dated September 10, 1997, the office of Administrative Hearings gave the Parties until October 3, 1997, to file written Exceptions to the Proposal for Decision. Mr. Marsh, through counsel, filed the Petitioner's Exceptions on October 10, 1997. The Department of Environmental Quality (Department) filed its Exceptions on October 1, 1997. Neither Party requested Oral Argument. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a final agency decision pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.

The application in this matter was filed under the provisions of the then Goemaere-Anderson Wetland Protection Act (Act), MCL 281.701 et seq.; MSA 18.595 (51) et seq. This matter is governed by what is now Part 303, Wetland Protection, of the Michigan Natural Resources Environmental Protection Act and the administrative rules. MCL 324. 3 03 01 et seq.; MSA 13A. 3 03 01 et seq.

This Tribunal has considered the Proposal For Decision, the Parties Exceptions, exhibits, pleadings and arguments. Proposed findings of fact and conclusions of law not addressed in this Final Determination and Order were found to be unsupported by the record or unnecessary in making a final decision in this contested case.

The ALJ makes findings and conclusions in the PFD which ultimately lead to the recommendation that the subject parcel is not a regulated wetland, and therefore, not subject to the Department's regulation. If this recommendation is adopted, Mr. Marsh would not be required to obtain a permit for the activity proposed in the application for a permit. However, during the prehearing conference on June 27, 1996, the Parties entered into stipulations of fact regarding the Department's jurisdiction over the subject parcel. The stipulations of fact are memorialized in a letter from this Tribunal to the Parties dated June 28, 1996, and are part of the record in this matter. The stipulations regarding jurisdictional facts are:

1) The proposed activity is regulated and a permit is required.

2) The Department has jurisdiction over the subject property.

In concluding the Department did not have jurisdiction over the subject parcel, the ALJ did not afford proper deference to the above-stated stipulations of fact. Stipulations of fact entered into by the Parties shall be used as evidence at the hearing and are binding. MCL 24. 278; MSA 3. 560 (178); Dana Corporation v Employment Security Commission, 371 Mich 107, 110 (1963). Therefore, I conclude, as a Matter of Law, that pursuant to the factual stipulations of the Parties, the Department has jurisdiction over the subject parcel and the criteria of Part 303 must be met before a permit is issued.

The ALJ concluded that even if the parcel is regulated, the proposed activity qualifies for a general or minor permit and on that basis the application should be approved. The Department argues that because a feasible and prudent alternative to the proposed activity exists, the proposed activity cannot be classified as a general or minor project and a general permit cannot be approved.

The general permit categories for minor activities applicable to this case were formally established on May 1, 1989, and are incorporated by reference and attached to this Final Determination and Order. Under paragraph 5 of this document, a feasible and prudent alternative to the proposed activity must not exist for the project to qualify for a general permit. The analysis must then turn to the issue of whether there exists a feasible and prudent alternative to the proposed activity. MCL 324. 30311 (4) (b) . If such an alternative is found to exist, the activity proposed in the permit application cannot be deemed a minor activity as a matter of law.

The purpose of the proposed fill is to gain access to the water front. Department Exhibit 2. The record shows the Department offered an alternative to placing fill in the wetland, namely a permit for construction of a foot path or boardwalk to the water's edge. Department Exhibit 7. This Tribunal has consistently held that the construction of a foot path or boardwalk is a feasible and prudent alternative to placing fill in a wetland in order to gain access to water. Cf. Petition of David L. Palmer, File No. 88-5-381W; Petition of RRRT Partnership, File No. 95-5-253W. Based on the foregoing, I find, as a Matter of Fact, a feasible and prudent alternative exists to the proposed activity. I conclude, as a Matter of Law, because a feasible and prudent alternative exists to the proposed activity, it cannot be considered a general or minor permit category activity.

Having found a feasible and prudent alternative to the proposed activity exists in the nature of a foot path or boardwalk, it is noted that such an activity is specifically identified as qualifying for a general permit. Wetland General Permit Criteria, paragraphs 6 (c) and 6 (d) . Therefore, I find, as a Matter of Fact, the construction of a foot path or boardwalk to the water's edge in this case is a general permit category proposal. No other feasible and, prudent alternative to this activity exists to fulfill the Petitioner's stated needs. I conclude, as a Matter of Law, because the foot path or boardwalk alternative is a general permit category proposal, it meets all other criteria of Part 303 for approval. MCL 324.30312.

The PFD recommends that the fill placed on the parcel without being first permitted by the Department be allowed to remain. The Department objects to this recommendation and asserts this Tribunal has no jurisdiction over issues regarding the placement of fill without a permit. Department Exhibit 5.

Part 303 contains provisions for licensing, civil sanctions and criminal prosecution. This Tribunal only has jurisdiction over Part 303 licensing matters. Cf. Petition of Dennis Dubuc, File No. Violation No. 06-90-20; Petition of Lawrence Baughn, File No. 90-11-461. As set forth in the provisions of Part 303, all civil and criminal matters must be considered by a court with jurisdiction over such matters. Therefore, I conclude, as a Matter of Law, this Tribunal has no jurisdiction over civil or criminal matters and the ALJ erred in making recommendations regarding fill placed without the benefit of a permit.

As previously noted, Department Exhibit 7 is a draft permit which constitutes the Department's offer of a feasible and prudent alternative to the proposed project. In this proposed permit the Department approves a foot path or boardwalk conditioned on the removal of what is termed unauthorized fill. Here the Department makes the same error as did the ALJ in regards to alleged violations of Part 303. The issuance of a permit is purely a licensing matter, while the issue of unauthorized fill in a wetland is a civil matter, a criminal matter, or both. I conclude, as a Matter of Law, it is improper for the Department to issue a permit which conditions the approved activity on the removal of unauthorized fill.

The Chief Administrative Law Judge of the office of Administrative Hearings MODIFIES the Proposal for Decision dated September 1, 1997, and finds the evidence on the record supports the determination that the Petitioner is entitled to a permit for the construction of a foot path or boardwalk to the water's edge.

THEREFORE, IT IS ORDERED:

1. The Proposal For Decision dated September 1, 1997, is hereby MODIFIED, in part, as provided in this Final Determination and order.

2. The application for a permit for File No. 94-12-220 is DENIED.

3. The Petitioner shall be issued a permit consistent with the proposed permit contained in Department Exhibit 7. The permit shall provide for the construction of a foot path or boardwalk for the purpose of providing access to the water front. This permit shall not be conditioned on the Petitioner removing unauthorized fill.

4 . The alleged unauthorized fill on the subject property is outside this Tribunal's jurisdiction and all findings and conclusions contained in the Proposal for Decision on this issue are REJECTED.

5. The Office of Administrative Hearings does not retain jurisdiction in this matter.

Dated: February 24, 1998 _____________________

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

1. The Michigan Department of Natural Resources, in accordance with Section 10 of 1979 PA 203, The Goemaere-Anderson Wetland Protection Act, of the Michigan compiled Laws Annotated, being Sections 281-701 to 281.722 and Administrative Rules for Wetland Protection being R281.921 to R281.925, has determined that the activities listed in this General Permit meet requirements given in the Act and Rules therefore initially qualifies for incorporation into this General Permit.

2× Section 10(l) of 1979 PA 203 states, in part, "The department . . . may issue general permits..... for a category of activities if the department determines that the activities are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment".

3. Rule 3. (1) An application for a proposed activity which is within a general permit category may be processed and issued by the department without the noticing or hearings specified under section 7, 8, and 9 of the act. The department may process, by public notice, an application which would normally qualify under a general permit category to allow more opportunity for public review and comment. Categories of minor activities will be established in the general permit in accordance with section 10 of the act. The factors set forth in sections 3 and 9 of the act shall be considered in determining whether such a permit is in the best interest of the public.

4. This General Permit for minor activities in wetlands will allow the Michigan Department of Natural Resources to process applications for permits for minor activities in most cases, without the delays of unnecessary public noticing. The objective of this General Permit is to reduce the inconvenience and cost of the permit process to applicants proposing minor activities and to reduce costs of administering the program while protecting the wetland resource.

Please be aware that General Permit categories f or minor activities in wetlands in the State of Michigan are meant only to facilitate the processing of applications for permit. Qualification for consideration under any of the categories does not guarantee the issuance of a permit in any specific case nor does it obviate the need for project review under any other applicable statutes. Issuance of a permit will follow only if it is determined that, in addition to qualification within one of the General Permit categories, the proposed activity is otherwise in accordance with the criteria and requirements of 1979 PA 203 and other applicable statutes.

5. To qualify for this General Permit, a proposed project must meet the requirements of 1979 PA 203, Section 9, as determined by the Department. Section 9(l) states that "a permit for an activity..... shall not be approved unless the department determines that the issuance of the 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".

Section 9(4) states that "a permit shall not be issued unless it is shown that an unacceptable disruption will not result to the aquatic resources . . . 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 wetlands

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

6. The following activities are incorporated into this General Permit:

(a) Minor fills, 300 cubic yards or less and not exceeding 10,000 square feet placed into a wetland area, providing the fill consists of clean, non-polluting materials which will not cause siltation nor contain soluble chemicals or organic matter which is biodegradable, providing any upland on the property is utilized to the greatest degree possible, and providing the location of the proposed fill is at the least damaging place on the property (e.g. as close to the road as allowed by local setback requirements) and providing that only one permit under 1979 PA 203 is required for the entire project, including all phases. All fill shall be stabilized with sod, or seeded, fertilized and mulched, or riprapped as necessary to prevent soil erosion.

(b) Construct or maintain waterbodies less than 5 acres in size providing, except as otherwise categorized in this General Permit, that dredge spoils, including organic and inorganic soils, vegetation and debris, shall be placed at an upland site, leveled and stabilized with sod, or seeded and mulched in such a manner as not to erode into any waterbody or wetland or impair flood flows. Direct connection to an existing inland lake or stream will not qualify for consideration under General Permit categories.

(c) Boardwalks or elevated platforms.

(d) Filling for walkways or footpaths not to exceed 6 feet in width where boardwalks or elevated walkways are not feasible or practical. Culverts will be required where necessary to provide for the free flow of surface water. If in a flood plain, the grade elevation shall not exceed six (6) inches.

(e) Elevated single family residential structures constructed on pilings providing that any upland on the property is utilized to the greatest degree possible, providing that the location of the structure is at the least damaging place on the property (e.g. as close to the road as allowable by local setback requirements), providing that the structure is not in the floodway portion of the floodplain of a stream or river, and providing that all utilities can be installed securely as specified and required by the local health department. Consideration under this category is limited to projects which, when completed in all phases, would be located within less than 10,000 square feet of wetland and would require less than 300 cubic yards of wetland fill.

(f) Driveways, providing any upland on the property is utilized to the greatest degree possible, providing that the location of the driveway is at the least damaging place on the property (e.g. as close to any upland edge as allowable by local setback requirements) and providing that total wetland fill for the entire project will not exceed 300 cubic yards and 10,000 square feet. Driveways shall not exceed 16 feet in base width. Culverts will be required where necessary to provide for the free flow of surface water. If in a floodplain, the grade elevation shall not exceed six (6) inches.

(g) The following activities may qualify for General Permit if these conditions are met: construction is completed during dry periods of the wetland, or mats are used to reduce compaction of the wetland soils, or other procedures/equipment that will minimize impact; temporary sidecasting or stockpiling of excavated material is allowed within the wetland provided the material is removed before completion of the project; excess excavated material is removed from the wetland and placed in an upland site and stabilized with sod, or seeded, fertilized and mulched, or riprapped as necessary to prevent soil erosion into any waterbody or wetland, project design features are included to assure that installation using gravel backfill does not result in drainage of the associated wetlands and the wetland is restored to original contours after construction.

(i) Sewer and water line construction.

(ii) Electric transmission and telephone lines.

(iii) Underground utility lines.

(iv) oil/gas pipelines larger than six (6) inches in diameter.

(h) Access roads and pad locations for oil/gas drilling activities or mineral well drilling activities. Access roads shall not exceed 20 feet in base width and culverts will be required, where necessary, to provide for the free flow of surface water. Drilling pads shall not exceed 300 feet by 300 feet in size. Immediately upon termination of the oil/gas related operations or mineral well drilling operations, all fill material shall be removed, the original wetland contours restored, and the site stabilized with sod or seeded, fertilized and mulched or riprapped as necessary to prevent soil erosion.

Applications for a permit for oil/gas related activities or mineral well drilling in wetlands shall be reviewed by the Department as though the proposed project will be permanent. A General Permit will only be issued for an oil/gas related activity or mineral well drilling if all of the following conditions are met:

(i) The activity is of minor impact, on both an individual and cumulative basis, to the wetland;

(ii) The Department determines that providing opportunities for public comment specified in section 8 of the Act will not materially benefit the Department's consideration of the permit application; and

(iii) The applicant demonstrates that providing opportunities for public comment specified in section 8 of the Act will cause an undue hardship on the applicant.

If the above conditions are not met, an application will be processed through the public notice process provided for in section 8.

(i) Stormwater outfalls providing that the outlet is riprapped or otherwise stabilized to prevent soil erosion and that the stormwater will be pretreated or otherwise meet State water quality standards.

(j) Culverts, if installed for water level equalization.

(k) Except that as otherwise exempt under section 6 (2)h, maintenance, repair, or operation of an existing drain providing that the activity does not otherwise require a permit under the Inland Lakes and Streams Act, 1972 PA 346 as amended, providing that less than 300 cubic yards of fill is required to be placed in a wetlands waterbody, or watercourse, and providing that no additional wetland will be drained other than wetlands affected by the original construction.

(1) An on-site sewage treatment system providing that it is required by and designed in accordance with the local health department to replace an existing failed system and providing that necessary local health department permits or permissions are obtained and copy submitted to the Department prior to final action under this General Permit. Where the option is available, pump-back systems to upland will be required in place of mounded systems in order to qualify for construction under this General Permit.

7. Issuance of a permit pursuant to this General Permit does not remove the need for other applicable local/state/federal permits. If on-site water or sewage disposal facilities will be needed to serve any structure at any time in the future, contact the local health department for site approval prior to expenditure of funds for on-site improvements.

8. This General Permit shall expire on April 30, 1994, unless revoked or modified before that date.

MICHIGAN DEPARTMENT OF NATURAL RESOURCES

_________________________________________________

Dennis J. Hall, Chief
Land and Water Management Division

cc: Director David F. Hales
Natural Resources Commission

IN RE: Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Charles Marsh
File No. 94-12-220

Kimberly Adams Colgate
Administrative Law Judge

This matter is a contested case hearing arising from the denial of a Wetland Act permit to fill subject property located on W. Peninsula Drive, Shavehead Lake, Subdivision H F Little, Lot 15, Porter Township, Cass County, Michigan.

The hearing was conducted pursuant to Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended, formerly known as the Goemaere-Anderson Wetland Protection Protection Act, 1979 PA 203, as amended and the Administrative Procedures Act, 1969 PA 306, as amended.

1. The professional staff of the Department of Natural Resources is charged with the day to day administration of the Wetland Act. Mr. William C. Larsen, Land and Water Management Division, appeared on behalf of the Department.

2. Mr. Scott Schofield appeared on behalf of the Petitioner.

Petitioner made application to construct a new home, excavate a basement area and use the material for filling subject property to the shoreline in May of 1994. (Department Exhibit 2) An Application Correction Request was sent to Petitioner on June 20, 1994. (Department Exhibit On or about July 15, Petitioner submitted a revised plan request seeking permission to place 34 cubic yards of fill in the area within 25 feet of the shoreline. (Department Exhibit 11) A Project Review Report was prepared on August 19, 1994. The application to fill to the shoreline was denied on September 15, 1994, however the Department indicated it would "look favorably upon a lake access project consisting of a 6 foot wide filled path and a 6 foot wide elevated boardwalk." (Department Exhibit 6) A request for a contested case hearing was made on June 16, 1995.

Petitioner moved for the issuance of the permit under the authority of Section 8(2), 1979 PA 203, (now Section 3 24.30307(2) of 1994 PA 451) which states:

"If a hearing is not held, the department shall approve or disapprove the permit application within 90 days after the completed permit application is filed with the department."

Petitioner filed his application in May of 1994. (Department Exhibit 2) But, an Application Correction Report was sent on June 20, 1994. (Department Exhibit 3) Petitioner responded to the Application Correction Report on July 15, 1994. (Department Exhibit 9) The Department issued its letter of denial on September 15, 1994. (Department Exhibit 6)

Ruling: The Hearing Officer finds that the Department did not violate Section 8(2), 1979 PA 203, (now Section 324.30307(2) of 1994 PA 451) because the application was denied within 90 days after the completed permit application was filed with the Department.

Subject property is located on W. Peninsula Drive, Shavehead Lake, Subdivision H F Little, Lot 15, in Porter Township, Cass County, Michigan. Subject property is a lot whose dimensions are approximately 50 feet wide at both the shoreline and the road side, 180 feet deep on the south side, and 168 feet deep on the north side. Subject parcel is depicted on page 3 of Department Exhibit 2 and Petitioner's Exhibits 1B, 1C, 1D, 1E, 1G and 1H.

There is approximately 90 feet from the house to the shoreline of Shavehead Lake; Petitioner has filled, to a depth of approximately 20 inches, within 25 feet of the shoreline of Shavehead Lake.

Petitioner purchased subject property in March of 1994 through a realtor. There was no disclosure by the realtor that subject property was within a designated wetland area. When Petitioner purchased the property, he inspected the lots to the north and south of subject property, The property to the south was filled to the shoreline. (Petitioner's Exhibits 1B-1E shows subject property's brown filled area in relation to the property to the south of Petitioner's property. Petitioner's Exhibit 1F is a picture taken from the south of Petitioner's lot looking towards subject property) The property to the north of subject property is not developed.

Petitioner applied for his local building permits with both the Porter Township and Cass County. Petitioner was not informed by the Township that he needed any permits. (Petitioner's Exhibit 4) Petitioner applied for and was granted a Soil Erosion and Sedimentation Control Permit by the Cass County Road Commission for the new homesite and septic location. (Petitioner's Exhibit 2) That permit indicates at the bottom, "This permit does not replace the possible need for Department of Natural Resources Wetlands or Act -'146 Permits." Petitioner was told by Mr. Frederick Senger, Manager of the Cass County Road Commission, that he could fill within 25 feet of the shoreline, but that he would need to apply for a permit with the Department of Natural Resources (now Department of Environmental Quality - hereinafter referred to as "DEQ") to fill the remaining 25 feet. (Petitioner's Exhibit 3 and notation on the bottom of Petitioner's Exhibit 2)

Petitioner therefore placed fill material within 25 feet of the shoreline, and filed a Petition

with the DEQ to fill the remaining 25 feet.

On December 5, 1994 a draft permit was offered to Petitioner which would allow him to fill a pathway to Shavehead Lake, if he removed the fill material which had been placed without the benefit of a permit. (Department Exhibit 7)

Mr. Kameron Jordan testified on behalf of the Department of Natural Resources, now the Department of Environmental Quality. Mr. Jordan is a Land and Water Management Analyst. He has worked for the Department for approximately ten years, and reviews water related construction projects for their impact under the Inland Lakes and Streams Act, the Wetland Protection Act, the Great Lakes Submerged Lands Act, and other related environmental statutes. Mr. Jordan makes wetland determinations on a daily basis.

A 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 and which is any of the following:

(i) Contiguous to the Great lakes or Lake St. Clair, an inland lake or pond, or a river or stream. 1994 PA 451, Section 30301 (d), formerly l979 PA 203,Section2(g).

Subject property is contiguous to Shavehead Lake.

Rule 281.924 establishes the criteria for a wetland determination. That rule states:

When performing a wetland determination, the Department shall rely on visible evidence that the normal seasonal frequency and duration of water is above, at or near the surface of the area to verify the existence of a wetland. Under normal circumstances, the frequency and duration of water that is necessary to determine an area to be a wetland will be reflected in the vegetation or aquatic life present within the area being considered. A wetland that has not been recently or severely disturbed will contain a predominance, not just an occurrence, of wetland vegetation or aquatic life. Where there is a predominance of wetland vegetation, and no direct visible evidence that water is, or has been at or above the surface, the department shall use the following characteristics of the soils or substrate to verify the existence of a wetland:

(a) The presence of a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil that favor the growth and regeneration of wetland vegetation.

(b) Physical or chemical characteristics of a soil column which provide evidence of the current and recent degree of saturation or inundation. Characteristics such as gleying, low chroma mottling, or chemically demonstrated anaerobic conditions, can be utilized to identify the current and recent depth and fluctuation of the water table or inundation.

Mr. Jordan completed the Project Review Report. (Department Exhibit 4) The report states

at item 21:

"Standing H20 Saturated Muck"

In the comment section he notes:

"The area proposed for filling is mowed but still obvious wetland. Theres piles of fill west of house of which about 30'appears to be over wetland as well. The owner wanted to fill to H20 edge. We offered a modified plan but didn't get a response."

Mr. Jordan testified merely that the property was a wetland based on his analysis of the property to the north.

The rules provide that, "where there is a predominance of wetland vegetation, and no direct visible evidence that water is, or has been at or above the surface, the department shall use the following characteristics of the soils or substrate to verify the existence of a wetland:

(a) The presence of a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil that favor the growth and regeneration of wetland vegetation.

(b) Physical or chemical characteristics of a soil column which provide evidence of the current and recent degree of saturation or inundation. Characteristics such as gleying, low chroma mottling, or chemically demonstrated anaerobic conditions, can be utilized to identify the current and recent depth and fluctuation of the water table or inundation.

Mr. Jordan offered no testimony that the soil on subject property was saturated, flooded or ponded lone, enough to develop anaerobic conditions. His report merely said there was standing water, but he drew his conclusions by viewing the property to the north, Further, the Department introduced no physical or chemical characteristics of a soil column to establish subject property as a wetland.

Mr. Jordan further testified that the there was palustrine, scrub shrub and emergent broadleaf vegetation, but he testified that he had no idea what the nature of the property was under the fill. As a matter of fact, he presumed that the soils were probably similar to the undeveloped property to the the north of subject property.

It is this Hearing Officer's finding that the Department has failed to establish that subject property is a wetland.

During Mr. Jordan's site inspection of subject property he concludes that the substrate, water quality and aesthetics would be adversely impacted by the proposed fill. He states that the project is not consistent with similar structures and that there would be an unacceptable disruption to the aquatic resources according to the criteria of 1979 PA 203.

Mr. Jordan failed to complete the portion of the Project Review Report entitled MINOR PROJECT/GENERAL REVIEW CRITERIA, but he testified that he would have check yes, to number 16,

(16) The proposed activities would have only minimal adverse effects when performed separately.

He testified that he would have checked no to the following questions:

(17) The proposed activities would have only minimal cumulative adverse effects on water quality and/or the aquatic and wetland environments.

(18) The proposed activities are similar in nature and similar in their impact upon water quality and/or the aquatic and wetland environments as previously permitted activities.

(19) According to the criteria listed in the State Administrative Rules or Corps General Permit, all aspect of the project, as proposed, quality.

(20) The proposed project will have only minimal secondary adverse effects on water quality and the aquatic environment.

Mr. Jordan testified that he would have checked yes to number 16, and further opined that filling Petitioner's 50 foot by 25 foot shoreline area would not have a major impact on the aquatic resources. He stated that if you look at this project as one small piece of property, it would have a relatively minor impact. He felt however, that if Petitioner is granted a permit, then the Department will have to permit other projects of a similar nature, and the cumulative affect will have a significant impact.

Mr. Jordan is concluding that subject land is not a Minor Project due to the cumulative affect filling might have, and yet when he was asked how many acres of remaining wetland exist in Cass County, he not only responded that he did not know, but further stated that he had never taken the time to look or estimate the number of acres of remaining wetland. When Mr. Jordan was presented with photographs, (Petitioner's Exhibits 1-K, L and M) to show remaining areas of undeveloped wetland on Shavehead Lake, he was unable to identify the properties as being located on subject lake.

How can Mr. Jordan conclude there would be an adverse cumulative effect, when he testified that he had know idea about the remaining wetlands in the area?

1. The Department failed to meet its burden of proof establishing subject property as a wetland, and therefore a permit should be issued.

2. In the alternative, the subject request to fill is a minor project.

PETITIONER MAY PLACE THE REQUESTED 34 CUBIC YARDS OF FILL TO

THE SHORELINE OF SHAVEHEAD LAKE.

ADDITIONALLY, HE SHALL NOT BE REQUIRED TO REMOVE THE EXISTING FILL.

_______________________ _______________________________

Dated: September 1, 1997
Kimberly Adams Colgate
Administrative Law Judge

PETITIONER'S EXHIBITS

Petitioner's Exhibit One (Photographs)
P-1A: Home on subject property (99% complete)
P-1B: Subject lot (brown dirt) and property to the south
P-lC: Same shot as IB from slightly different angle
P-1D: Subject property and subject property's dock
P-1E: Shoreline close-up of subject property
P-1F: Photograph of subject property looking from the lot to the south
P-1G: Shoreline of subject property
P-1H: Subject property looking towards Shavehead Lake
P-1I: Photograph taken from subject property looking south
P-1J: Photograph
P-1K: Undeveloped property on the East side of Shavehead Lake.
P-1L: Undeveloped property on the North side of Shavehead Lake
P-1M: Undeveloped property on the North side of Shavehead Lake

Petitioner's Exhibit Two: Soil Erosion and Sedimentation Permit
Petitioner's Exhibit Three: Letter from Frederick Senger III, Cass County Road Commission
Petitioner's Exhibit Four: Letter from Patricia Raab, Supervisor, Porter Township

DEPARTMENT'S EXHIBITS

Department's Exhibit One: Resume - Kameron Jordan
Department's Exhibit Two: Application For Permit
Department's Exhibit Three: Application Correction Request
Department's Exhibit Four: Project Review Report
Department's Exhibit Five: October 5, 1994 Letter from Department
Department's Exhibit Six: September 15, 1994 Letter from Department
Department's Exhibit Seven: December 5, 1994 Letter from Department
Department's Exhibit Eight: Map of subject property and proposed fill
Department's Exhibit Eight A - C: Department photographs of subject property
Department's Exhibit Nine: Receipt of corrected information from Petitioner
Department's Exhibit Ten: Project Site Directions
Department's Exhibit Eleven: Revised Site Plan