SUBJECT: Natural Resources and Environmental Protection Act, 1994 PA 451, as amended; Part 303, Wetland Protection

Petition of Relleum, Incorporated.

File No. 88-11-0352W

___________________________________________________________________

At a session of the Final Decision Maker for the Department of Environmental Quality held in Lansing, Michigan, on June 18, 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 April 10, 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 Parties filed exceptions to the Proposal For Decision and were provided an opportunity for oral argument on May 31, 1996. Motions to strike were due to be filed on June 7, 1996, because allegations were made that the post hearing filings contained factual allegations which were not supported by the record.

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.

It is DETERMINED the Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS and incorporates by reference the attached Proposal For Decision and those findings of facts and conclusions of law supporting the decision that the Department of Environmental Quality has no jurisdiction to regulate the subject property and a permit is not necessary for the proposed activity.

NOW, THEREFORE, IT IS ORDERED the Department of Environmental Quality has no jurisdiction over the subject property 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: June 18, 1996 ____________________________________

Richard G. Lacasse
Acting Chief Administrative Law Judge
DEQ-Office of Administrative Hearings

Petition of Relleum, Inc.

File No. 88-11-0352

Richard A. Patterson
Administrative Law Judge
Dated: April 10, 1996

This case involves the denial of a request by Relleum, Inc., to fill a wetland pursuant to the provisions of the former Goemaere-Anderson Wetland Protection Act, now Part 303 of NREPA. The hearing was held on March 29, 30 and 31; May 22, 23 24, 25 and 26; June 6, 7, 28, 29, 30; July 24, 25; and August 1, 2 and 3, 1995. Subsequently, both parties have filed written closing arguments, proposed findings of fact and conclusions of law. All of the proposals have been carefully considered in preparing this Proposal for Decision. Those proposed findings of fact inconsistent with this Opinion are rejected as being contrary to the evidence, or -unnecessary for the disposition of this matter.

The hearing was requested under the provisions of the then Goemaere-Anderson Wetland Protection Act (Act), MCL 281.701 et seq.; MSA 18.595 (51) et seq., and was conducted pursuant to the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560 (101) et seq., and is governed by what is now Part 303 of the Michigan Natural Resources Environmental Protection Act and the administrative rules.

There are two issues addressed in this Proposal for Decision. First, whether the Department has jurisdiction over the Petitioner's parcel. The Parties agreed to bifurcate the proceeding and, at this stage, present evidence limited to the issue of the Department's jurisdiction pursuant to the Act. If it is found the Department has jurisdiction over the parcel, then another proceeding may be necessary to determine the impacts oft the Petitioner's proposal on the wetland. Second, the Petitioner argues the Department failed to respond to the application for permit within the requisite 90 day period and, therefore, the permit should be deemed granted.

Relleum, Inc. is the Applicant for a permit pursuant to the Act, and the Petitioner in this contested case, Relleum is represented by Messrs. David J.. Haywood and Mark A. Cooley, Attorneys at Law. The professional staff of the Michigan Department of Environmental Quality is charged with the day-to-day implementation of the Act. The Department is represented by Mr. Stephen M. Rideout and Ms. Elaine Dierwa Fischoff, Assistants Attorney General.

The Petitioner presented ten witnesses: 1) John Scott Mueller, President of Relleum, Inc.; 2) Gregory Wardeberg, employee of Relleum, Inc.; 3) Scott Wilbrett, employee of Relleum, Inc.; 4) Steven P. Voice (Expert); 5) Donald L. Tilton (Expert); 6) John Niederhauser; 7) Marilyn Tate, Gratiot Township Clerk; 8) State Senator Dan DeGrow; 9) Robert McDowell (Expert); and 10) Brooks Williamson (Expert).

The Department. presented five witnesses: 1) Thomas Kolhoff; 2) David Hamilton; 3) Rick Rusz; 4) Dr. Gary Marx; and 5) William Larsen.

The Petitioner introduced 44 exhibits and the Department introduced 52. A list and description of these exhibits is included at the end of this Proposal for Decision.

The issue of the burden of proof was raised by the parties in preliminary motions and during the hearing.

It is the position of the Department where Rellium initially sought a permit (which implicitly assumes the existence of regulated wetlands) and later disclaimed the necessity for a permit based on there being no jurisdictional wetlands, that Rellium is the "proponent" and bears the burden of proof on the issue of jurisdiction. Conversely, Petitioner argues the existence of regulated wetlands is the Department's burden. This argument is based on the fact that the Department is the one seeking to exercise agency authority and it has superior access to the relevant facts, and to do so would be consistent with the legislative scheme being administered. Superior Public Rights v DNR, 80 Mich App 72; 263 NW 2nd 290 (1977).

By letter dated March 10, 1995, the undersigned considered the issue as then framed and stated I was inclined to agree with the Department's position, but would be receptive to further argument. Post hearing briefs are filed and have been reviewed regarding this issue. Petitioner has reaffirmed its position and submitted additional citations. It now admits to having the burden of proof as to any procedural issue as to Department compliance with the 90 day requirement of section 8(2) of Part 303 of NREPA, and whether it is entitled to a permit pursuant to the criterion of the act under section 9. It continues to maintain the issue of showing jurisdiction is the Department's.

In addition to its previous argument, the Department asserts it would be unfair for the undersigned to shift the burden from the position taken in the March 10, 1995 letter after the fact. While the letter was not meant to be a definitive ruling, I am of the opinion that the burden of proof as to jurisdiction should be the Petitioner's.

This case is somewhat atypical in that, through the protracted evolution of the matter, there have been significant changes in the site, both from external forces and on site disturbances. Initially the application for permit was based on a delineation showing extensive wetlands, but at the time of the hearing, at least according to the Petitioner's case, there remained less than one (1) acre of wetland which is not contiguous, and, therefore, not regulated. Additionally, much of the proofs in that regard were based on ongoing Piezometer monitoring and other activities by the Petitioner on its land to which the Department had limited access. Therefore, the Petitioner has superior access to the facts supporting its position.

Petitioner's land is located in the Township of Fort Gratiot, St. Clair County, Michigan. St. Clair County has a population of over one hundred thousand (100,000) people. The property is located on M-25 (24th Avenue) between Kraft Road and Keewahdin Road and consists of 28.87 acres. The site is bordered on the north by the Birchwood Mall and on the south by the Birchill Antique Auto Mart, and is located in an area zoned for commercial development.. The immediate area of the M-25 corridor is fully developed with a variety of commercial enterprises.

Petitioner submitted its original application for a permit June 6, 1988 seeking to place 180,00 cubic yards of fill on the site in order to level the site to facilitate the development of a shopping mall. The Department requested further information by letter dated June 23, 1988 and Petitioner responded on July 7, 1988. A subsequent request for information was sent to Relleum's consultant on July 29, 1988, and was responded to by telephone and letter dated August 15, 1988. Again, on September 9, 1988, Department staff contacted the consultant by telephone requesting further information. On September 13, 1988, the Department issued a Public Notice for the application. A public hearing was not held. Two Department staff persons conducted a project review site visit on November 18, 1988 and prepared a Project Review Report. (Exhibit R-3). By letter dated November 23, 1988, the Department denied the application based on a perceived adverse impact on the natural resources associated with the forested and scrub/shrub wetland. It was specifically stated:

The subject wetland filters runoff, removing nutrients and other contaminants prior to their introduction into Howe Drain. This filtration is accomplished by a combination of natural processes such as physical entrapment, microbial transformation, and biological utilization. The Department finds the proposed wetland fill would harmfully alter the filtration benefits of the wetland.

The wetland area provides breeding, loafing, cover, feeding, and nesting habitat for a variety of marsh birds and waterfowl, escape cover and breeding habitat for fur bearers, and cover and feeding habitat for upland wildlife species. This area also provides valuable production habitat for reptiles, amphibians, and macro invertebrates which are a vital part of the food web. These values would be adversely impacted by placing fill material in the wetland. (Exhibit R-4)

This case has an inordinately protracted history. As indicated, the application for permit was denied November 23, 1988. The petitioner for a Contested Case Hearing was filed January 20, 1989 and immediately placed on the docket of pending cases. At the request of the Office of Administrative Hearings, Pre-Hearing statements were filed in January of 1990 and a Pre-Hearing held March 29, 1990 by Administrative Law Judge William C. Fulkerson. Deadlines were set and a hearing was scheduled to commence on July 24, 1990. That date was adjourned by the parties to October 17, 1990. Again, at the request of the parties, the matter was adjourned without date by this ALJ to facilitate settlement discussions. I requested a status report July 1, 1991 and was advised of ongoing alternative site analysis. Subsequently, an additional pre-hearing was set for January 20, 1992. Because it was necessary to await the growing season to finalize expert's reports, a deadline of August 1, 1993 was set for exchange of those reports. A hearing was set for September 15, 1993. The parties were again unable to proceed at that time, and the hearing was adjourned, and another pre-hearing conference was held on September 14, 1993. Expert review of the site had not been completed at that time and the matter was adjourned to April 14, 1994. The hearing was again adjourned due to a conflict in Petitioner's counsel's schedule. Another pre-hearing conference was held on June 8, 1994. At that conference a hearing was set commencing October 3, 1994. Due to Mr. Mueller (Petitioner's President) being unavailable, the matter was again adjourned to November 15, 1994. Again, due to a conflict in the Attorney General's office the matter was adjourned to March 29, 1995.

In the fall of 1989, construction of the Birchwood Mall commenced to the immediate north of the subject site under a permit from the Department. At approximately the same time, construction of a smaller strip mall to the south commenced. Construction of both facilities was completed in 1990. The smaller mall to the south included the installation of a drain. The Birchwood Mall to the immediate north involved extensive excavation resulting in a substantial lowering of the general elevation of the site, and the installation of an extensive underground drainage system. The Birchwood construction resulted in a lowering of the water table in the area. The smaller mall to the south drains the subject property after the runoff traverses the Birchill Antique Auto Mart to the immediate south. On December 3, 1990, Petitioner submitted an extensive Alternative Site Analysis which considered eight (8) other sites for construction. On October 28, 1991 an addendum was submitted in response to questions raised by the Department staff which included site selection and the extent of wetlands on the alternative sites. It was also proposed the project on the subject site be reconfigured and mitigation explored. By letter dated January 1992, Petitioner offered to reduce the fill to 7,100 cubic yards. That proposal was denied by the Department on May 14, 1992. In March of 1993, Petitioner installed nine (9) groundwater monitoring wells and the same were monitored from that point to the time of hearing. In 1992 and 1993 Petitioner removed the timber and debris from the site. In addition, the site was seeded with a pasture mix (grasses and clover) in April of 1993 and again in 1994. The site was mowed in 1994 (Wardeberg, May 23, 1995, P.40)

A decision from the Department on an application is required within 90 days after a "completed permit application" is filed if no public hearing is held [NREPA, Part 303, section 7(2)]. If the Department fails to act on the permit application within the prescribed period, the application is considered approved and the Department is considered to have made the required determinations. Applicants are -required to submit an application on a form provided by the Department together with the requisite fee. The information required to be included with the application is outlined in NREPA, part 303, section 6(l). Petitioner's application was submitted June 6, 1988 and provided all of the information requested thereon. However, Rule 2 of the Administrative Rules of Part 303 states an application is not deemed to have been received or filed until the Department has received all information requested on the application form, the application fee and any other information authorized by the act and necessary to reach a decision [1988 AACS, R 281.922(2)]. The Petitioner states the Department's application form does not request an acreage figure for the wetland impacted. William Larsen testified the instructions attached to the permit application form request the acreage under paragraphs 4 and 7. (Transcript July 24, 1995, page 99, 101, Exhibit R-56). Mr. Larsen further testified (Transcript, July 24, 1995, page 97) the reason for requesting the wetland acreage from the applicant is for inclusion in the public notice to indicate the magnitude of the impact on the wetland and on the site in general. The Department requested such information by letter dated July 29, 1988 (Exhibit P-4). Mr. Gregory Wardeberg telephoned the Department September 9, 1988, spoke with Mr. Larsen and provided him with an acreage figure for the wetlands on site (Transcript July 24, page 20).

I find the denial of the permit was 170 days from the filing of the permit application, but within the 90 day period of the Department being advised of the wetland acreage. Although Petitioner argues the application included a scaled drawing from which the wetland acreage could be determined, I find, as a matter of fact, the request to Petitioner to provide the acreage was a reasonable request. and necessary to make a proper determination of the permit application. This is especially true in light of testimony as to some confusion as to whether the shaded area depicted in the initial drawing indicated wetland or the extent of the proposed fill.

2. I further find, as a matter of fact, the denial was made within 90 days (74 days) of the date the Department was advised of the acreage at which point the application was administratively complete pursuant to 1988 AACS, R 281-922(2).

3. I further find, as a matter of fact, that a public hearing was not held.

1. Based on the above findings of fact, I conclude, as a matter of law, the Department disapproved the application for permit within 90 days of the filing of a completed permit application and is, therefore, in compliance with the provisions of NREPA sec. 30307 (1) and (2).

The initial application for Permit attached a drawing prepared by Abonmarche, Inc., depicting existing conditions and the extent the proposed fill (Exhibit R-1). These depictions followed a wetland delineation prepared by Dr. Eugene Jaworski in 1988 (Exhibit R-59), which indicated the presence of approximately 19 acres of wetland. This consideration was essentially confirmed by Messrs. Williamson and Leighton in 1991.

On November 18, 1988, two Department staff persons visited the site (Exhibit R-3; Rusz, 6/7/95, P. 129). One of those, Mr. Rusz, testified at the hearing. The other Mr. Spencer, did not. By letter dated November 23, 1988, the Department denied the application for Permit (Exhibit R-4). Mr. Rusz testified regarding the permitting criteria under Part 303 which were embodied in his Project Review Report. (Exhibit R-3) It was his opinion the Department had jurisdiction based on the size of the wetlands. Mr. Pusz further testified the wetlands on the parcel were not contiguous. (Rusz, 6/7/95, p. 171).

On January 20, 1989, Relleum petitioned for a contested case hearing alleging the Department lacked jurisdiction due to errors in the evaluation of the property. As previously stated, other events took place which had a significant impact on the site, namely the construction of the Birchwood Mall under a permit to the north and the strip mall to the south. Drainage installed on both of these sites had a significant impact on the hydrology of the Relleum site. (Wardeberg, 5/22/95, p. 124-126; Exhibit P-20; Voice 3/30/95, p. 64,125; Tilton, 3/31/95, p. 23, 42, 44-45; McDowell, 5/23/95, p. 135-138).

On December 3, 1990, Relleum submitted an extensive Alternative Site Analysis to the Department. (Exhibit R-10). On October 28, 1991, an addendum was submitted. (Exhibit R-11). Following that, Relleum continued to study the site and submitted a modification to the application, reducing the amount of fill from 180,000 cubic yards to 7,100. (Exhibit R-5). The modified application was denied May 14, 1992. (Exhibit R-6).

Subsequently, Relleum continued to study the site to determine the hydrology. (Wardeberg, 5/22/95, p.119). Mr. Wardeberg also researched the history of the site and surrounding area and reviewed the topographical maps prior to development. (Exhibit P-22; Wardeberg, 5/23/95, p. 54). His research revealed the elevation of the Birchwood Mall site was lowered so that land which used to be at or higher than the Relleum site's elevation was now significantly lower, especially in the parking areas. (Wardeberg, 5/22/95, P. 122). This was verified through the rim elevations of the catch basins in the parking lot which ranged from 595.4 to 59'7.9 feet above sea level. The elevation of the Relleum site was 600 feet or higher. (McDowell, 5/23/95, p.138).

Mr. Niederhauser testified his company worked on the Birchwood Mall during its construction and the site was lowered approximately two feet below natural grade. (Niederhauser, 5/23/95, P-92). The elevations on the mall site were some seven feet lower after construction. (Niederhauser, 5/23/95, p. 95). That made the catch basin elevations approximately six feet lower than the Relleum site. (Niederhauser, 5/23/95, p. 96).

The commercial development to the south of the Relleum site included the installation of a storm sewer. (Wardeberg, 5/22/95, p. 122-123). That drain has an invert elevation of 593.86 feet and serves to drain water away from the Relleum site. (Wardeberg, 5/22/95, p. 123). Mr. Niederhauser testified to the existence of a natural depression, or swale, which runs from the Relleum site, across the property to the south and into the drainage pipe. (Niederhauser, 5/23/95, p. 100). It was the conclusion of both Messrs. Wardeberg and Niederhauser that the Relleum site is now effectively drained due to the change in elevation and topography of the mall site and installation of the drains. (Wardeberg, 5/22/95, p. 124; Exhibit P-20). Groundwater on the Relleum parcel flows from the northeast to the southwest (Hamilton, 6/6/9S, pp. 140-141)

The effects of the above activities on were confirmed by Mr. McDowell who reviewed much of the same data. (McDowell, 5/23/95, p. 135-136). He testified the amount of watershed coming on to the Relleum site has been reduced by virtue of the mall construction to the north and drainage to the south, resulting in a lowering of the water table on the Relleum parcel. (McDowell, 5/23/95. p-138).

In March of 1993, Relleum installed nine Piezometers on the parcel in rows along various elevations. (Wardeberg, 5/22/95, p. 132-133). Readings were taken and -recorded from that time until the time of hearing. (Exhibit P-10 and P-10A). Mr. McDowell and Dr. Tilton testified the placement of the Piezometer provided a representative cross section of the parcel and would reflect the hydrology (McDowell, 5/23/95, p. 153-154; Tilton, 5/22/95, p.85). Despite this opinion, Dr. Tilton would have placed the Piezometers closer together and in the center of the property (Tilton, 3/31/95, p. 105). Furthermore, Mr. McDowell testified he originally requested the installation of 25 Piezometers in August of 1991. (McDowell, 5/25/95, p. 11). In find the placement of the Piezometers were sufficient to obtain a representative sample of the site's hydrology.

Relleum removed the timber from the site in April of 1993. (Wardeberg, 3/30/95, p. 141). Later in 1993, it removed debris remaining from the timbering operation. This was accomplished by excavating the entire site. The work was completed in September of 1993 (Wilbrett, 6/7/95, p.33). On September 16, 1993, the Department issued a Cease and Desist Order which alleged Relleum was dredging in a wetland.

Relleum's witnesses characterized this activity as "raking". In reality, it involved mechanized land clearing, utilizing large excavators with drag lines which involved not only the removal of debris, but approximately 7/8 of an inch of soil and, consequently, any remaining vegetation. The layer of soil and debris raked was trucked to the rear (easterly) border of the site where a large berm was created (Pictured in Exhibits R-25 and R42 a through d). That activity further resulted in an alteration of the topography from its original uneven or rugged terrain to a virtual level surface.

Relleum engaged two additional experts to again study the site and prepare a wetland delineation. Dr. Donald Tilton visited the site on four occasions beginning in June of 1993. (Tilton, 3/31/95, p 13, 18, 25, 31). He was not satisfied with his observations from the first visit and concluded further study was necessary. (Tilton, 3/31/95, p.16). He visited the site twice more in 1993, and on his fourth visit in July of 1994, determined the location and extent of the wetlands and prepared a delineation. (Tilton, 3/31/95, p. 31; Exhibit P-13)

Mr. Steven Voice visited the site on August 10, 1993. (Voice, 3/30/95, P.17). He, too, was not satisfied he could perform an accurate delineation at that time and requested the opportunity to visit the site on additional occasions. (Voice, 3/30/95, p.18). After his visit in September of 1993, he determined it would be appropriate to evaluate the site during the growing season when the plant cover was mostly developed. (Voice, 3/30/95, p.29). He visited the site a third time on July 20, 1994, together with Dr. Tilton, and completed his delineation. (Voice, 3/30/95, p.30). Both Dr. Tilton and Voice determined there was less than one acre of wetland existing, at the southwest corner of the site. (Exhibits P-7 and P-13). Respondent contends this delineation should be critically reviewed in that Dr. Tilton's site visits were during the dry part of the growing season in June, July and September of 1993 and July of 1994. As borne out by the testimony, the wettest part of the growing season is in the spring. The same would be true of Mr. Voice who visited the site in August and September of 1993 as well as July of 1994.

Despite numerous visits to the site by Department staff from the time the application was submitted, up to and including the site visits during the hearing, staff did not perform a true delineation. Thomas Kolhoff testified he had been on the site nine times beginning in February, 1992 and ending in June, 1995. He did not perform a delineation on any of those occasions and stated he only made "general observations". (Kolhoff, 6/29/95, p. 36).

David Hamilton, a staff hydrologist, was of the opinion that if the water table was within 18 inches of the surface for seven consecutive days, it would be sufficient to constitute wetland hydrology. This opinion was based on what he characterized as part of the working knowledge of professionals in the field. (Hamilton, 6/6/95, p. 136, 170). He admitted this criteria was based on assumption that Topico soils were on the site, but he did not confirm their presence. (Hamilton, 6/9/95, p. 41-42, 153-154).

Mr. Hamilton was also of the opinion there would be sufficient capillary rise so that a water table at 18 inches below the surface would affect the vegetation. He testified the water would rise "most of the 18 inches". (Hamilton, 6/6/95, p.183, 193). He further stated the hydrology of the site would not be affected by the removal of the timber. (Hamilton. 6/6/95, p.203, 204).

Mr. Hamilton reviewed the Relleum Piezometer data (Exhibits R-32 and R-34) and asserted this data supported his conclusion that there was sufficient wetland hydrology over more than half the site, in that a number of readings came within 18 inches of the surface. (Hamilton, 6/9/95, p.103). Mr. Hamilton agreed there were changes on the site, but asserted they were insignificant and the watershed was still intact. (Hamilton, 6/6/95, p. 143, 150).

Mr. Hamilton's testimony was directly contradicted by both Dr. Tilton and Mr. McDowell. Dr. Tilton testified the test for determining whether wetlands exist is whether there was saturation at the surface as opposed to 18 inches below the surface. (Tilton, 7/25/95, p. 27). Mr. McDowell performed laboratory tests on soils actually taken from the site and was not able to create a capillary rise of more than a range of 3.8 to 13.3 inches with an 8.5 inch average. (McDowell, 7/25/9S, P-128; 8/l/95, P.-L28).

The seven day duration testified to by Mr. Hamilton was attributed to information from the U.S. Fish and Wildlife Service and was refuted by Dr. Tilton. He testified the most recent federal guidelines indicate the necessary hydrology would be conservatively based on a saturation at the surface for 5% of the growing season, which in St. Clair County would be a least nine to ten days. (Tilton, 7/2S/95, p.21-220.

Section 30301 (d) of Part 303 defines wetland to mean:

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 of Lake St. Clair, an inland lake or pond, or 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 is size; except this subparagraph shall not be of effect , except for the purpose of inventorying, in counties of less than 100,000 population until the Department certifies to the commission it has substantially completed its inventory to wetland in that county.

(iii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and five acres or less in size if the Department determines that protection of the area is essential to the preservation of the natural resources of the state from pollution, impairment, or destruction and the Department has so notified the owner; except this subparagraph may be utilized regardless of wetland size in a county in which subparagraph (ii) is of no effect; except for the purpose of inventorying, at the time.

The Administrative Rules promulgated pursuant to Part 303 have amplified the above by defining certain terms utilized.

1988 AACS, R 281.921 defines, among other things, "wetland vegetation" as "plants that exhibit adaptations to allow, under normal circumstances, germination or propagation, and to allow growth with at least their root systems in water or saturated soil".

1988 AACS, R 281.924 covers wetland determinations and requires the Department to utilize criteria consistent with the definition of wetland provided above. It states:

When performing wetland determinations, 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 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.

Department staff conducted two site visits during the course of the hearing. During the first visit, on May 24, 1995, it was raining and had been for some period of time previous. (Wilbrett, 6/7/95, p.4-7) Water was observed coming from the surface and flowing into the soil borings installed by staff. (Wilbrett, 6.7.95, p. 50; Tilton, 7/25/95, p. 53-54).

All experts testifying agreed there was wetland vegetation scattered about the site. They differed, however, as to its significance. Relleum's witnesses indicated the wetland vegetation is "going out", and what is present is remnant vegetation from the seed bank which will continue to diminish as the upland vegetation becomes more dominant. (Voice, 3/30/95, p. 20: Tilton, 3/31/95, p. 19; Tilton 7/25/95, p. 30). Department staff, on the other hand, claimed the wetland vegetation was reemerging and re-establishing itself as the dominant vegetation on the site. (Kolhoff, 6/6/95, p. 33; Marx, 6/30/95, p. 104). Relleum's witnesses described pockets of wetland vegetation unconnected to one another throughout the site. (Voice, 3/30/95, P. 20, 36; Tilton, 5/22/95, p. 113). Department staff concluded from those observations that wetlands comprise a significant portion of the site. (Hamilton, 6/9/95, p. 121; Kolhoff, 6/29/95, p. 86).

Mr. Kolhoff viewed the site in June of 1995 and found the clover on the site was stressed and less in quantity than in 1994. Clover is an upland plant and cannot tolerate excessive water. Further, some of the wetland species were reappearing. (Kolhoff, 6/6/95, pp. 32-33, 35).

According to the testimony, the site would be considered "atypical" or "severely disturbed", which would require a different analysis, including a review of. the history. (Tilton, 3/31/95, p. 85). Vegetation would become irrelevant under these circumstances according to Dr. Tilton. (Tilton, 5/22/95, p.82).

In response, the Department submitted copies of the recorded Piezometer readings with the readings within 18 inches of the surface highlighted. These were introduced to support its contention that seven days of saturation are sufficient, given the capillary rise (Exhibit R-32 and R-34) and the saturation levels obtained through borings performed on May 24 and June 1, 1995 (Exhibit R-37).

The testimony has indicated substantial construction to the north and south of the subject parcel as well as extensive activities on that site. The latter commenced with the removal of the timber. Subsequently, the site was excavated to remove debris which resulted in a disruption of the topsoil and vegetation. In addition, the site has been seeded with upland vegetation twice and mowed at least once. Based on these facts, I find that the site has been recently and severely disturbed. Therefore, the testimony as to whether the vegetation present indicates a predominance or a mere occurrence of wetland vegetation become irrelevant. Under 1988 AACS, R 281.921 (2), when a site is disturbed, the Department must look to the criteria of subsections (a) and (b) relative to soil characteristics to formulate its determination. Consequently, the undersigned's analysis will be governed by those criteria.

As indicated it is Relleum's burden to prove the site does not contain jurisdictional wetlands and Relleum has met this burden. Relleum's witnesses described and presented evidence of a detailed study of the site's hydrology over three growing seasons. (Wardeberg, 3/30/95, p. 140-144, 5/22/9S, p. 119-135; Wilbrett, 6/7/95, p. 17-19). They further presented evidence of a historical study of the topography of the entire area, and explained why the hydrology had changed. (Wardeberg, 5/22/95, p. 119-121; McDowell, 5/23/95, p. 139-144, Niederhauser, 5/23/95, p. 90-93). The hydrology data depicted on Exhibits P-10 and P-10A demonstrates, in the opinion of two experts, the site will no longer support wetlands. (Voice, 3/10/95. p.53-54; Tilton, 7/25/95, p.60).

The Department's conclusions are based on the testimony that saturation of the soil as low as 18 inches below the surface is sufficient to support wetland vegetation due to the phenomena of capillary rise. That opinion could not be supported by Mr. McDowell who utilized the actual soil from the site to test capillary rise. Dr. Tilton opined Part 303 requires saturation at or near the surface sufficient to develop anaerobic conditions in the upper most part of the soil. (Tilton, 7/25/95, p. 27). He further pointed out that, at the top of the capillary fringe, there would be as much or more air in the soil as water, and, therefore, the soils would not be anaerobic. (Tilton, 7/25/95, p.27). This opinion was confirmed by Mr. McDowell. (McDowell, 7/25/95, p.131).

The Piezometer readings become crucial to this case. These are recorded on exhibit P-10 and P-10A.

For Piezometer #1, the data during the growing season, which was established during the hearing as commencing approximately the middle of April (Tilton, 7/25/95, p. 120), showed the closest reading to the surface of 23 inches on April 11, 1994. In 1995, the readings were between 36 and 46 inches below the surface.

For Piezometer #2, the closest to the surface the water table is found at 15 inches from the surface on June 26, 1993. Testimony revealed June of 1993 experienced twice as much precipitation as normal. (Tilton, 5/22/95, p.74; Wilbrett, 6/7/95, p. 30). In 1995, readings ranged from 24 to 32 inches below the surface.

For Piezometer #3, there is a period in early 1993 where the water level was between 6 and 12 inches of the surface. In June of 1993, during the period of above normal precipitation, the water level came within 4 inches of the surface, but dropped off again thereafter. During 1994, the water level readings were never higher than 14 inches below the surface. In 1995, the depth of the water table ranged from 18.5 inches to 29.5 inches.

Piezometer #4 likewise begins with readings close to the surface early in 1993, with another spike during June of 1993. Thereafter, the water level is closest to the surface in early May. The measurements taken on either side of that measurement are significantly lower. During 1995, the water table was within 3.5 inches of the surface for two days, dropping to 14.5 inches by the third day.

For Piezometer #, the readings are closest to the surface during June of 1993 and drop thereafter. The same is true for 1994. The water table was within 7 inches of the surface for two days in 1995 and then receded to 15 inches.

For Piezometer #6, the readings again start out high early in 1993, being within 10 inches of the surface, although by early May 1993, they were 20 inches below the surface. There is a spike, as with all the wells in June of 1993 which quickly drops away for the remaining readings in 1993. For 1994, this well shows a reading within 7 inches of the surface on May 11, 1994. However the readings taken on either side of that are 20 and 24 inches below the surface. In 1995, the water table was within 7.5 inches of the surface on May 1, but by the next measurement the water table had dropped to 21 inches.

The water table in Piezometer #7 is closest to the surface during the high rainfall month of June 1993 and was within 8 inches of the surface in May 1994. However, on either side of the measurement taken on May 11, 1994, the water table was 26 and 28.5 inches below the surface. On April 24, 1995, the water table was found to be within 6 inches of the surface but by May 9, 1995, it had dropped to 21 inches.

Piezometer #8 shows a reading of water at the surface in April 1993, but not again during the time measurements were taken. Even during the heavy rainfall of June 1993, the water came no closer than 12.5 inches to the surface. Likewise, during May 1994, when other wells were showing elevated water levels, the water level in this well remained 11 inches from the surface. During 1995, the water table was elevated at the end of April, but was 29 inches below the surface by May 9, 1995.

Piezometer #9, the monitoring well located in the wetland delineated by Mr. Voice and Dr. Tilton, demonstrates enough ground water at or near the surface for sufficient periods of time to support the finding of wetland hydrology.

The above readings, Relleum contends, support its assertion there is a lack of sufficient wetland hydrology to classify the site as a regulated wetland.

As indicated previously, the Department feels if the water table is at the surface for seven consecutive days the site will sustain wetlands. However, the evidence in this case does not support such a factual finding even if the "seven consecutive day" standard was appropriate.

It appears the original delineation performed by Dr. Jaworski set the pace for the course of this proceeding in the minds of the Department staff. Both Mr. Voice and Dr. Tilton testified, after a period of time of a year or two, it would be prudent to re-evaluate a site to determine whether a delineation is still valid. (Voice, 3/30/95, p. 74; Tilton, 3/31/95, p.80). Both Messrs. Williamson and Leighton opined their delineation could no longer be relied upon due to the changes in the site. (Williamson, 8/l/95, p. 6; Leighton, 8/l/95, p. 25).

FINDINGS OF FACT

1. Based on the above testimony and exhibits, I find, as a Matter of Fact, the area of less than one acre delineated by Dr. Tilton and Mr. Voice in the southwest corner of the property is wetlands but it is not contiguous to a lake or stream.

2. I further find, as a Matter of Fact, the remaining parcel does not exhibit the presence of soil or substrate that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil that favors the growth and regeneration of wetland vegetation.

3. I further find, as a Matter of Fact, as to the remaining parcel, there is; insufficient evidence on the record of physical or chemical characteristics of the soil column, such as gleying or low chroma mottling, demonstrating a recent or current degree of saturation or inundation to support anaerobic conditions.

Based on the above Findings of Fact, the criteria to invoke jurisdiction under Part 303 of the NREPA are not present and the Department has no jurisdiction to regulate this site under the statute.

It is proposed, based on the foregoing, an order be entered declaring there are no regulated wetlands on the site and that, therefore, the Department of Environmental Quality has no jurisdiction.

_____________________________

Richard A. Patterson
Administrative Law Judge

AMENDED LIST OF EXHIBITS

P-1 Deed
P-2 Enlarged topo with piezometers depicted
P-3 Correspondence re: application
P-4 Revised drawings and correspondence
P-5 Aerial photo of area
P-6 Large aerial photo of area
P-7 Wetland determination report - Voice
P-8 DNR wetland manual
P-9 Soil survey - St. Clair County
P--10 Piezometer readings 1993-1994
P-10a Piezometer readings 1994-1995
P-11 Vita-Gregory A. Wardeberg
P-12 Vita-Donald L. Tilton
P-13 Wetland determination report-Tilton
P-14 Topo survey of flagged wetlands
P-15 Letter Haywood to Rideout 8/17/94
P-16 Letter Rideout to Haywood 9/7/94
P-17 Phone slip Haywood 9/12/94
P-18 Piezometer readings 1994
P-19 Precipitation readings 1970-1993
P-20 Watershed analysis
P-21 Soils investigation
P-22 Topo map
P-23 Letter Relleum to DNR 7/20/92
P-24 Elevations of site
P-25 Letter Niederhauser to Mueller 11/3/94
P-26 Vita-Robert McDowell
P-27 Letter McDowell to Relleum 8/22/91
P-28 Letter McDowell to Relleum 9/11/91
P-29 Letter McDowell to Relleum 7/16/92
P-30 Affidavit T. Kolhoff
P-31 Interoffice communication Hamilton to Witte
P-32 Piezometer readings and chart
P-33 Piezometer readings 1994
P-34 Topo survey
P-35 Vita-Scott R. Wilbrett
P-36 Precipitation records Port Huron wastewater treatment plant
P-37 Photo, berm at rear of property
P-38 Photo, berm at rear of property
P-39 Chart of soil borings
P-40 Chart of soil borings.
P-41 Interoffice communication Rusz to Larsen 2/20/91
P-42 Notes-Kolhoff
P-43 Drawing of water flow
P-44 (a through g) Photos of soil borings
R-1 Application for Permit
R-la Adapted Application for Permit
R-2 Public Notice
R-3 Project Review Report
R-4 Letter denying report 11/23/88
R-5 Letter Wardeberg to Massey amending Permit application dated 11/15/92.
R-6 Response to above 5/14/92
R-7 Violation letter 9/16/93
R-8 Site photos
R-9 Site photos
R-10 Alternative site analysis
R-11 Alternative site analysis addendum
R-13 Letter Moore to Mueller 7/8/92
R-18 Not admitted
R-20 Letter Haywood to Rideout enclosing expert reports 8/17/94
R-21 Letter Rideout to Haywood 10/15/94
R-22 Letter Haywood to Rideout 10/24/94
R-23 Adapted Topo survey
R-24 (a through J) Not offered*
R-25 Site photos
R-26 Photo of berm
R-27 Photo of excavation activity
R-28 Vita-Rick D. Rusz
R-29 Vita-David A. Hamilton
R-30 Chart depicting distribution of subsurface water
R-31 Depiction of soil, water and plant relationships
R-32 Highlighted Piezometer readings
R-33 Weekly data spring groundwater level observations
R-34 Highlighted Piezometer readings
R-35 (a through m) Pictures of forested site
R-36 Chart of Monitoring wells
R-37 Depiction of soil borings
R-38 Daily precipitation chart for June 1992
R-39 Drawing of watershed and soil column
R-40 Permit-Birchwood Mall
R-41 Vita-Thomas W. Kolhoff
R-42 (a through k) Site photos
R-43 (a through kk) Site photos
R-44 (a through aa) Site photos
R-45 Vita-Gary F. Marx
R-46 Affidavit Dr. Eugene Jaworski
R-47 Vita-William C. Larsen
R-48 Notes of W. Larsen re; conversation with Wardeberg 9/9/88
R-49 Interoffice communication Gruhn to Spencer 10/07/88
R-50 Letter U.S. Fish and Wildlife 10/27/88
R-51 Interoffice communication re: alternative site analysis 1/14/91
R-52 Letter Massey to Walrad 5/7/91
R-53 Letter Relleum to Stevenson 10/28/91
R-,54 Letter Relleum to Massey 1/15/92
R-55 Letter EPA to Bostwick 3/27/92
R-56 Application for Permit
R-57 USDA pamphlet "Hydric soils of the U.S."
R-58 Wetland Survey
R-59 Wetland Map Jaworski

*the original exhibit list has been amended to delete R-18 and R-24 (A through J) which, due to a clerical error, were included in the original exhibit list. These exhibits were not utilized as part of the record and are not referenced in the Proposal for Decision.