Petition of Herbert Munzel
File No. 90-11-0208
______________________________________________________________________________

At a session of the Final Decision Maker for the Department of Environmental Quality held in Lansing, Michigan, on July 16, 1996, Acting Chief Administrative Law Judge, Richard G. Lacasse, Presiding

The above-entitled matter has been the subject of a contested case hearing resulting in a Proposal For Decision dated March 25, 1996. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for review and decision pursuant to Executive Order 1995-18, Delegation Letter No. OAH-324.101 et seq.-01.

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. Proposed findings of fact and conclusions of law submitted by the Parties have been carefully considered. Proposed findings of fact and conclusions of law not addressed in this Final Order were found to be not supported by the record, or unnecessary in reaching a final decision in this matter.

The Petitioner filed exceptions to the Proposal For Decision on May 2, 1996. The Proposal For Decision is hereby modified to reflect the following factual changes:

1. The flow of Davis Creek is westerly.

2. Sandy Bottom Lake is north of and extends east of the wetland fill area.

It is DETERMINED the Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS and incorporates by reference the attached Proposal For Decision, the factual changes as stated above, and those findings of facts and conclusions of law supporting the decision that the Permittee is entitled to the permit as issued and that the issuance of the modified permit without re-noticing for public hearing was proper and permissable pursuant to section 8(2) of part 303.

NOW, THEREFORE, IT IS ORDERED the Department of Environmental Quality has followed statutory procedure and properly issued to the Permittee a permit to fill wetland pursuant to Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act; 1994 PA 451, as amended. MCL 324.30301 et seq; MSA 13A.30301 et seq.

Dated: July 16, 1996
/signed Richard G. Lacasse
Acting Chief Administrative Law Judge

DEQ-Office of Administrative Hearings

SUBJECT: Part 303, Wetlands Protection of the Natural Resources and Environmental Protection Act, PA 451 of 1994, as amended, (Formerly the Goemaere-Anderson Wetland Protection Act [203]) Petition of Herbert Munzel on permit issued to Thomas Duncan

File No. 90-11-0208

Dated: March 25, 1996
Richard A. Patterson
Administrative Law Judge

This matter is a contested case concerning the petition of Herbert Munzel as an aggrieved person pursuant to MCL 281.717 (2), as to a Wetlands Permit issued to Thomas Duncan November 18, 1991.

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

The professional staff of the Department of Environmental Quality (formerly the Department of Natural Resources) is charged with the day-to-day implementation of part 303 of NREPA. Herbert Munzel filed for a contested case hearing as an aggrieved party pursuant to Sec. 17(2) of part 303.

Petitioner testified on his own behalf, introducing 12 exhibits. He presented the testimony of Mr. Paul Rentschler, Executive Director of the Huron River Watershed Council, and Ms. Sara E. Thomas, Conservation Chairperson, Sierra Club-Crossroads Group.

Respondent's case was presented by Mr. Albert Massey, Supervisor, Land and Water Management, Region III. Mr. Thomas W. Kolhoff, Land and Water Management District Representative testified on behalf of Respondent. Respondent introduced 8 exhibits. There was one joint exhibit. An exhibit list is attached to this Proposal for Decision.

Mr. Duncan, the permittee, was present throughout the hearing but did not actively participate.

Petitioner, Herbert Munzel, is a registered civil engineer and land surveyor. He and his wife own property directly across Davis Creek and north of a proposed subdivision development known as "Sandy Creek," which is located in Green Oak Township, Livingston County. The proposed project involves a site condominium development of single family homes to be located along the south shore of Davis Creek. Davis Creek is a designated Natural River within the Huron River watershed.

The area consists of rolling upland terrain that drops off to a forested wetland. This wetland is adjacent to Davis Creek which flows easterly from Sandy Bottom Lake which is located to the west.

On or about May 9, 1990, the site developer, Mr. Thomas Duncan, applied for a permit from the then Department of Natural Resources (Department) for road construction. The permit application requested 2,590 cubic yards of fill in the wetland for road access to upland lots. The application was placed on public notice on July 12, 1990 (Exhibit Resp-1) and a public hearing was conducted by Department staff on September 9, 1990.

Department staff inspected the project site on September 11, 1990 (Exhibit Resp-2). The permit was denied by letter dated November 19, 1990 (Exhibit Resp-5). The basis for denial was the applicant had not considered feasible alternatives which may exist and which would minimize or eliminate resource impacts. Mr. Duncan submitted alternative project plans which were reviewed by Department staff. The revised plans increased the dimensions of the culverts, reduced the number of upland lots upon which residences were proposed and provided for a private, as opposed to public, road. The larger culverts would facilitate greater equalization of surface water and the installation of a private road would reduce the footprint of the fill due to less stringent width requirements. Reducing the buildable lots allowed the installation of a community septic system, as opposed to a separate system on each building site. The staff considered these changes in the proposal as having minimal impact on the wetland and eliminating the need for wetland mitigation. The Department granted a modified permit for this alternative activity on November 18, 1991. (Exhibit Resp-8)

The permitted activity includes the excavation of approximately 1,830 cubic yards of material, placement of two sets of twin 38x24 inch elliptical culverts and the placement of approximately 2,637 cubic yards of fill material to accommodate the construction of two wetland road crossings for access to uplands where houses will be built. The project is best depicted on joint exhibit 1. The westerly culvert and roadway are now in place. Black top pavement was installed to approximately mid-way between the westerly and easterly crossings.

Petitioner contests the propriety of the permitted activity and, in support, articulated ten points. These are:

1. There is no substantial difference between the originally proposed activity and the permitted activity. Therefore, the reasons for denial of the original permit are still appropriate.

2. Township ordinances, in place at the time of the application in 1990, prohibit construction in wetlands/floodplain or natural rivers zoning districts.

3. The location of the natural rivers district shown on the application conflicts with the location shown on the official township zoning map.

4. The Green Oak township board action approving the condominium project allowed for crossing of the wetlands only if it could be done without decreasing the flow in the floodway.

5. The Livingston County planning commission staff did not recommend the project.

6. The "Floodplain Regulatory Act" cited as P.A. 167 of 1968 was either not considered or overlooked in the permitting process. In considering this assertion, this Administrative Law Judge has found that 1968 P.A. 167 created and empowered the former Water Resources Commission. Sec 3108 of NREPA (MCL 324.3108) now governs the occupation, filling or grading of floodplains. It is assumed this is the section applicable to Mr. Munzel's assertion.

7. Huron River natural river zoning rules were not followed.

8. Although a public hearing was held prior to the original denial of the application, no other hearing was held after the second application. There should have been notice to other riparian owners and other interested parties notifying them of the reconsideration and the right to request a public hearing.

9. The permittee has retained oil and gas rights to the land underlying the condominium project and could, in the future, place an oil or gas well in the affected wetlands.

10. Some of the statements in the applicant's submission to the DNR were misleading and/or incomplete and the permit review process was, therefore, flawed.

In response, the Department contends the permit was properly processed and most, if not all, of the above concerns are separate zoning issues or other considerations not within the jurisdiction of the Department.

Ms. Sarah Thomas lives in Genoa Township near Brighton and is Vice-Chair and Conservation Chair of the Livingston, South Genesee and West Oakland County chapter of the Sierra Club. She sent a letter to Mr. Thomas Kolhoff of the Department dated September 9, 1992 (Exhibit Pet-1). She is greatly concerned with the public interest issue vis a vis the private development. She contends any pristine property in southeast Michigan should not be utilized for purely private development without careful consideration of the public interest which she states did not occur in this case. Further, Mr. Duncan purchased the property with the existing wetland and streams thereon or adjacent and knew, or should have known, his use would be limited by their existence. In addition, she argues there are alternatives to the permitted project such as installing a bridge, as opposed to a causeway, or the purchase of other property to obtain access to the uplands. She argues this area warrants special protection and the Department has not adequately upheld the public interest. On cross examination she admitted she had no educational background in wetlands science, but she has a bachelor of science in criminal justice. She testified she has engaged in considerable independent research in wetlands and other environmental issues. She disclaimed having any background in alternative analysis or certification in wetland determination or delineation. She has been on the site and, in her opnion, if there is any loss of wetland, there is a degradation.

Similarly, Mr Carl Rentschler, Executive Director of the Huron River Watershed Counsel sent a letter to the Department dated September 25, 1990 addressing his concerns to which he testified (Exhibit Pet-2). These were, first that there was no consideration of alternatives.

Additionally, Davis Creek and the Huron River have very flat gradients and fish species have, in the past, and will, in the future, be impacted. This is especially true for those species that are dependant on wetland habitat and those that require sand and gravel for spawning. He argues the latter will be adversely impacted due to silting from the run off.

On cross examination, Petitioner admitted he did not know whether the sewer lines were permitted under another act and stated as far as he knew, the sanitary sewers had been previously installed. He admitted gas lines may be placed in wetlands. He is concerned they would be under the fill and traffic over the filled area could potentially rupture them. Again, he expressed concern the culverts could fill up with silt and cause water stagnation, but admitted he has not done any calculations to determine if the subject culverts are subject to siltation. However, in his past 30 years as a civil engineer he has not experienced this type of event. He also admitted if the culverts did fill up with silt, they could be cleaned out. His concern as to unlawful pollution relates to a storm drain presently servicing the existing development which he believes creates a point source discharge in the wetlands. He does, however, acknowledge wetlands do filter water discharge in them and further admitted the discharge from the point source essentially flowed in the direction of normal water flow on the site. He also admitted the master deed and conservation easement prohibit any further development in the wetland, and this project will likely be the last invasion of the subject wetland.

The sole witness on behalf of the Department was Thomas W. Kolhoff, District Representative, Land and Water Management Division. He described himself as the lead investigator and related he has been to the site many times. He also was the hearing officer for the public hearing.

Mr. Kolhoff's project review report was admitted without objection. (Exhibit Resp-2). The initial application was denied because alternatives were not explored by the applicant. He subsequently met on site with the developer's consultant who requested reconsideration. A modified permit was issued with the provision there only be building on the uplands, there would be no other wetland impacts other than the access roads, there would be a community septic system alleviating the necessity of a drain field on each parcel and there would be a deed restriction and conservation easement prohibiting further wetland development on the site. It further required the boundary of the wetlands be established and marked by rocks. Mr. Kolhoff asserted that those additional measures reduced the wetland impacts sufficiently to merit permitting the project. He received no comments from the Fisheries or Endangered Species Division.

Mr. Kolhoff further testified the initial denial does not close the file because it pointed out alternatives which needed to be explored. Alternatives are commonly worked out and a modified permit is then issued. It is not common to re-notice the public hearing as, in this case, the new proposal would impose less of an impact and, therefore, re notice was not merited or required by law. The Department may conduct a public hearing if such is requested by an interested party or the Department determines it is warranted. There is no provision for re-notice and the revision and modification of applications and permits is specifically sanctioned (NREPA Part 303, sec 8 [1]). He opined the only time a re-notice of hearing would be merited and required is when the revised proposal created a greater impact or a substantial change to the proposed project.

Mr. Kolhoff testified he does not agree a clear span bridge is a reasonable and prudent alternative and introduced a letter from JJ&R (Exhibit Resp-6) to the effect that such a bridge would be six to seven times as expensive as the permitted activity. As to the failure to consider floodway or floodplain considerations, he introduced a letter from Mr. Gary Bondeson, Flood Hazard Management section of Land and Water Management Division of the Department of Environmental Quality, to the planning commission (Exhibit Resp-7) stating he had no objection because nothing in the permitted project would adversely affect the floodplain or floodway based on his site review.

There is no question or contention the area in which the activity is proposed is anything other than a regulated wetland, and I so find as a matter of fact.

The act contains criteria for the review of permit applications and mandates findings be made with regard to each criterion.

Sec. 9 (1) A permit for an activity listed in section 5 shall not be approved unless the department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.

A determination of whether the project is in the public interest is made by applying criteria discussed in part 303. I find, as a matter of fact, a permit is necessary to engage in the activity requested, and it is otherwise lawful.

(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 form 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.

(2) The benefit which may reasonably be expected to accrue is providing access to 3 lots for residential development. There would, therefore be a benefit to the residents living there and, assumedly, an economic benefit to the developer. There do not appear to be any substantial foreseeable detriments. While I am cognizant of the National and State concern for the protection of natural resources, I find, as a matter of fact, there will be no pollution, impairment or destruction of the wetland as a result of the permitted activity. The fill and culverts proposed will have no perceptible impact on the flow of water through the wetland. The design facilitates virtually a natural flow, although, as Mr. Munzel testified, a blockage might affect that consideration. However, this concern is speculative and non-specific to this particular site, as many of Mr. Munzel's concerns are.

(a) There does not appear to be any great public need unless facilitating minimal additional housing is considered. The private need to the developer is to facilitate access to additional upland for building sites to complete the project.

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

Petitioner has asserted two alternatives. First, access could be facilitated by a clear span bridge which, as opposed to fill and creation of a causeway wold impact the wetland to a lesser extent. The testimony indicates although it is feasible, it is not prudent because of excessive costs. The testimony further indicates such a structure would not, in fact, have any lesser impact on the wetland than the permitted activity.

Secondly, an easement utilizing the adjacent access road to the Sokal Camp would alleviate the necessity of any wetland activity. However, the record indicates such access was refused (Exhibit Resp-6, testimony of Thomas Kolhoff). Therefore, that alternative is not feasible.

I find there are no feasible and prudent alternative locations and methods to the permitted activity.

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

The only beneficial effect would be the private use of the property by the developer and ultimate residents. The concerns of Petitioner and his witnesses are to the perceived detrimental effects on the wetland, the watershed and adjacent waters. While the proposed activity would unquestionably result in a permanent installation and use of a portion of the wetland, the footprint of the fill is minimal as compared to the remaining wetland and the provision of continuing flow though the culverts alleviate much of the impact. The resulting and continuing use (driving over the causeway, maintenance, etc.) will not impact the wetland.

I find, therefore, as a matter of fact, that although the proposed activity will result in a permanent installation, there will be no detrimental effects on either the public or private uses to which the area is suited.

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

The wetland involved is adjacent to Davis Creek which flows out of Sandy Bottom Lake and is within the floodway. As indicated, the direct impact is minimal. There is nothing in the record to indicate any future activities in the watershed other than speculation that some is possible. The revised permit (Exhibit Resp-8) contains provisions for deed restrictions on existing and anticipated lots as well as a conservation easement as to the remaining wetland. There will, therefore, be no further activity in the immediate area of the watershed.

I find there will be no impact of this proposed activity on other existing or anticipated activities, as such are restricted or prohibited.

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

The record does not address historic or cultural impacts and there appear to be none. The scenic impact is subjective. Obviously, the Petitioner prefers the scenic value of the pristine wetland. The developer, on other hand, would find a residential development to be preferable.

The ecology of the area will be maintained. There is nothing in the record addressing recreational use and the area of the project does not appear to be conducive to it.

The public health will be unaffected

The only wildlife concern expressed was a perceived impact from possible silting on fish species that depend on a wetland habitat and those that require sand and gravel for spawning. The proposed project is situated to the interior of the wetland and the natural flow of water will not be perceptively impacted. Therefore, no impact on such fisheries use of the periphery is foreseeable.

I find, therefore, there will be no probable impact on the above criteria.

(f) The size of the wetland being considered.

The Proposal involves approximately 1/4 of an acre in an extensive wetland of many acres.

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

As previously indicated, there is considerable wetland in the immediate area which will be subject to deed restrictions and a conservation easement.

(h) Proximity to any waterway.

The wetland is adjacent to Davis Creek.

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

Although there was no testimony regarding this issue, it is assumed the economic value is positive to the developer and the residents and to Green Oak Township. It will provide housing and increase the local tax base. Costs to the township will be minimized by the construction of a private road. I find, therefore, there will be a positive economic impact on the proposed activity to the general area.

(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 other state agencies.

(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 foregoing discussion, I find the proposed activity will not cause an unacceptable disruption of the aquatic resources. I further find the proposed activity is primarily dependant upon being located in a wetland. Although the proposed activities are not those that are wetland dependant in the sense they can only be performed in a wetland, if the upland is to be accessible, the proposal must be approved.

The deciding issue, therefore, is whether a feasible and prudent alternative does not exist. The Natural Resources Commission in the Goemaere-Anderson Wetland Protection Appeal of William J and Joan McCool adopted the interpretation of "feasible and prudent alternatives" to require a showing there are truly unusual circumstances or costs of an extraordinary magnitude to establish there are no feasible and prudent alternatives. As previously found, the access to the uplands cannot be accomplished by utilizing uplands as use or access to the Sokal Camp Road has been denied. The utilization of a clear span bridge is not economically prudent and there is no testimony it would greatly decrease the wetland impacts.

I find, therefore, no feasible and prudent alternatives under the above standard.

1. The petitioner has applied for a permit to engage in an activity which requires a permit under Part 303 of NREPA.

2. Based on the foregoing "Findings of Fact", I conclude as a matter of law, the proposed activity will not cause an unacceptable disruption to the aquatic resources.

3. I conclude, as a matter of law, the proposal is wetland dependant.

4. I conclude, as a matter of law, no feasible and prudent alternatives to filling the wetland exists. This conclusion is premised upon the interpretation of "feasible and prudent alternatives" in light of the paramount concern for the protection of natural resources as applied in the McCool case.

5. I conclude, as a matter of law, the procedure followed by the Department in issuing a modified permit without re-noticing for public hearing, to which petitioner objects, was proper and permissible pursuant to section 8 (2) of part 303.

Based on the foregoing, it is proposed the granting of the modified permit was proper. Petitioner has requested the permit be revoked and the permittee be required to restore the wetland to its natural state. It is proposed the request be denied.

/signed

Richard A. Patterson
Administrative Law Judge

Joint 1. Reduced portion of preliminary site plan of Dandy Creek.
Petitioner 1. Letter of Sarah Thomas to Thomas Kolhoff dated September 9, 1992.
Petitioner 2. Letter of Paul Rentschler to Thomas Kolhoff dated September 25, 1990.
Petitioner 3. Memorandum of Ayres, Lewis, Norris & May to Green Oak Township board.
Petitioner 4. Preliminary site plan of Sandy Creek dated September 1, 1992.
Petitioner 5. Preliminary site plan of Sandy Creek dated January 26, 1990.
Petitioner 6. Interoffice communication Bondeson to Marx dated July 30, 1990.
Petitioner 7. Letter of McNamee, Porter & Selley, Inc. to planning commission dated February 23, 1990.
Petitioner 8. ZBA agenda meeting of November 5, 1990.
Petitioner 9. Natural rivers program project review.
Petitioner 10. Memorandum of Bondeson re: floodplain
Petitioner 11. Flood insurance rate map.
Petitioner 12. Letter of DNR to Duncan dated July 27, 1992.

Respondent 1. Public notice.
Respondent 2. Project review report.
Respondent 3. Interoffice communication of August 22, 1990.
Respondent 4. Notice of public hearing.
Respondent 5. Certified letter denying original application.
Respondent 6. Letter JJR, Inc. to T. Kolhoff.
Respondent 7. Letter Bondeson to planning commission.
Respondent 8. Permit.