IN RE: GOEMAERE-ANDERSON WETLAND
PROTECTION ACT [203] APPEALOF SAIL NORTH, INC/MICHAEL W. WILLS

File No. 89-6-127

At a session of the Natural Resources Commission held at the Holiday Inn, City of Monroe, County of Monroe, on the 7th day of July, 1994.

Chairman Larry DeVuyst, Presiding

WHEREAS the above-entitled matter has been the subject of a contested case hearing resulting in a Proposal for Decision and is now before the Commission for review, and

WHEREAS the Commission has duly considered the Proposal for Decision as well as appropriate exhibits, submissions and arguments of the parties, and

WHEREAS the Commission has, by a majority of the Commissioners eligible and voting, decided to ACCEPT the Proposal for Decision with the following exception.

THE COMMISSION, ON THE ADVICE OF COUNSEL, specifically finds, as a matter of law, that it does not have the authority to impose a conservation easement on the property in question and

IN RE: Goemaere-Anderson Wetland Protection Act [203] Appeal of Sail North, Inc./Michael W. Wills
File No. 89-6-127

April 29, 1994
William C. Fulkerson
Administrative Law Judge

IN RE: Goemaere-Anderson Wetland Protection Act 203
Appeal of Sail North, Inc.

File No. 89-6-127

This contested case involves the denial of a request for a permit to place fill in an area classified by the Department as a wetland. The application of May 1, 1989, was denied under the provisions of the Goemaere-Anderson Wetland Protection Act. Sail North, Inc. requested a hearing pursuant to the Act. A hearing was held on June 16 and 17, 1993.

This matter was brought under the Goemaere-Anderson Wetland Protection Act, 1979 PA 203, as amended; MCL 281.701, et seq., MSA 11.401 et seq., and the administrative rules. The hearing was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq., MSA 3.560.101 et seq.

Sail North, Inc. (Sail North) is the applicant for a permit pursuant to Act 203 and is the Petitioner in this case. The professional staff of the Michigan Department of Natural Resources is charged with the day-to-day implementation of Act 203 and is the Respondent in this case. The Petitioner was represented by Mr. H. Wendell Johnson, attorney. The Department was represented by Mr. Richard Sikkenga, Region II, Land and Water Management Division Supervisor.

Sail North offered the testimony of four witnesses and the Department offered the testimony of two witnesses. A list of the exhibits received in evidence is attached to this Proposal For Decision.

Sail North is in the business of selling and repairing boats and operates a marina at separate locations on M-22 in Elmwood Township, Leelanau County. The property, which is the subject of the application, is adjacent to the boat repair facility. The business has grown and evolved since Mr. Wills, its President, started it in 1979. Exhibit P-1 is a chronology of the business activity and related land use decisions concerning the property. The history is fairly involved. As the business grew and properties were acquired, there were also changes in the local zoning and changes to M-22--the state highway where the business is located. Sail North applied for and was denied a wetlands permit to construct a short term storage area and a service road from its repair facility to a winter storage area. The details of the applicable facts are discussed within the context of this Proposal.

The parties stipulated to several matters involved in this case. The stipulations were made on the record the first day of the hearing. The stipulations are as follows:

1. The Petitioner is the owner of the subject property and is the proper applicant for a permit.

2. The processing of the application was procedurally correct.

3. The area sought to be filled is a wetland as defined in the Act.

4. The activity proposed for the wetland is a regulated activity and a permit is required to perform that activity.

I find these stipulations are complete and legally correct, and I adopt them as my findings. Stipulations entered into by the Parties shall be used as evidence at the hearing and are binding. MCL 241.278; Dana Corporation v Employment Security Commission, 371 Mich 107, 110 (1963).

Section 5, of Act 203, prohibits the deposit or placing of fill in a regulated wetland without the benefit of a permit from the Department. MCL 281.705. To issue a permit for the fill requested by the Petitioner, the criteria of Section 9 of Act 203, must be considered. MCL 281.709.

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 the Act 203. These criteria are found in Section 9(2) of Act 203, MCL 281.709(2), as follows:

In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity. The decision shall reflect the national and state concern for the protection of natural resources from pollution, impairment and destruction. The following general criteria shall be considered:

(a) The relative extent of the public and private need for the proposed activity.

Sail North applied for a permit to fill wetlands on its property as part of its business operation of boat sales and service. The proposed wetland fill is to accomplish two purposes: 1) to provide a convenient, readily accessible place to store boats that are being serviced; 2) to provide an access road to reach the winter storage area, enabling Sail North to avoid traveling on M-22.

The boat sales and display area facility on M-22 is separated from the repair facility by the Traverse City Board of Power and Light coal storage facility. Sail North has made continual efforts to consolidate operations and has largely succeeded. The exception to this effort is the coal storage property which divides its business; this parcel is unlikely to become available for purchase. If this land was available, and purchased, Sail North's properties would become contiguous. This, however, is an unrealistic alternative. Sail North also owns a third parcel of land, located behind the other two parcels; this is the area where the fill is proposed. This third parcel lies across the rear of the other two parcels; the three parcels as a whole form a "U," surrounding the coal storage facility. In terms of the relative location of the lands, the repair facility is on the south, followed by the coal storage area and then the sales facility, as one moves to the north. The northerly portion of the west (rear) parcel is a large parking lot, accessible from M-22 by a drive near the sales area.

The parking area serves two purposes; as an automobile parking lot and as a winter boat storage area. In the summer, this parking area is used by the Leelanau Scenic Railway. In the winter months Sail North uses this parking area for boat storage. Boats must be hauled along M-22 a distance of about 800 feet to reach and enter the drive serving the winter storage area. Similarly, there is insufficient room at the repair facility to store the boats being held for customers. During routine service, boats are hauled to the sales area for storage until they can be either serviced or their owners pick them up, following service. Mr. Wills explained many of his customers are not from the Traverse City area. These customers often leave their boats for a week or more, until they return to the area. This factor leads to greater boat storage congestion at the boat storage facility.

The primary reason for the request to build a road and short term storage is to avoid transporting boats back and forth on M-22, which is the current method of operation. Access to and from the winter storage area is more of a seasonal problem, occurring when boats are taken to and brought out of storage. Transportation to and from the service area is a continual activity and presents the more compelling need. The private need of the Petitioner is an obvious one. Sail North is seeking to utilize its land in an effective manner to further its business purpose; it would like to become more efficient and avoid continually hauling boats from one location to another. It is obvious there is a serious logistics problem. The problem results from the fragmented nature of Sail North's property ownership and the difficulty of access from one site to another. The record supports the conclusion there is a need for alternative operational methods that do not involve transporting boats back and forth along a busy highway. There have been no traffic accidents as a result of Sail North's activity on M-22. This fact is surprising in light of the high traffic volumes and the slow moving boats, being towed from one location to another. I find there is a private need for the project.

The public need is less easily quantified; those who would be better served as customers would benefit from the improved operations. To the extent operational changes can reduce or eliminate the potential traffic hazard, occasioned by moving boats on M-22, a public benefit would accrue.

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

In an effort to satisfy the Department and obtain a permit, Sail North has made revisions to the original application. Each of the revisions have reduced the amount of proposed fill from that of the original application. The original proposal was to fill approximately two acres of wetland with approximately 7,000 cubic yards of material. This proposal would have created a large storage lot behind the service area. Subsequent proposals have scaled down the application, reducing both the surface area and the quantity of the fill. Sail North's witnesses testified the alternative plans reflect the least amount of fill necessary to accomplish the business objectives.

Sail North has thoroughly studied alternatives to its proposal; the current proposal is the one most consistent with its business purpose. There was no argument Sail North' s business purpose is not a legitimate one, nor that the expanded storage capacity is unnecessary. To some extent, the predicament is not of the Company's making. If anything, Sail North has repeatedly sought solutions for its business problems in an effort to consolidate operations for efficiency and to meet customers, needs. Additionally, there is an increased operational expense to move boats back and forth from the storage to the service area. Sail North's President testified, two technicians work eight hours a day moving boats during the busy season. He testified that in the spring of the year pressure is intense to move boats out of storage and get them ready for summer use. A similar flurry of activity occurs in the fall with boat service and storage activity. It was Mr. Wills' unrefuted testimony it is not economically viable to separate and move portions of the business. In fact, inside storage of boats has been arranged elsewhere, because this portion of the business could be separated. The remaining sales and service components of the business are too inter-related to be separated. There are no alternative methods or locations to accomplish the expected benefits of the proposed activity; the only alternative is to continue to operate in the same fashion.

Sail North has shown it is not feasible to locate the business elsewhere, nor are there other operational changes that can accomplish its business purpose. The alternative of moving the business elsewhere is not practical, since a part of the business is the marina, located near Sail North's facility. The boats from the marina are serviced at the M-22 facility.

In part, this need for additional storage was created because the Township passed an ordinance requiring an increased setback from the road for businesses on M-22. This increased setback distance forced the Petitioner to move operations rearward, which eliminated the use of previously available upland property. According to Mr. Wills, the proposed fill would not replace all of the storage area lost to the zoning restriction. Sail North did not accept the zoning change and filed a lawsuit against the Township. Sail North did obtain some relief from the setback requirements but is unable to operate as it had in the past. The alternative of obtaining a variance from local zoning has been diligently pursued and is no longer available. I find, as a Matter of Fact, the Petitioner has pursued all feasible and prudent alternatives, both as to business operational changes and changes to the plans for wetland fill. The current proposal is the minimum amount of fill that will meet its business purpose.

(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 proposed fill will change portions of a wetland into a parking area and drive. The project does not propose extensive soil removal and fill. The base for the drive and parking area is to be constructed on a geotextile fabric. Thus, the native soils and their functions will be altered to a lesser extent than they would if the soils were removed and fill placed. That is, groundwater flow will not be as interrupted. It is, however, the Department's position there will be some degree of soil compaction and perhaps some interference with the surface flow of water. It is doubtful activity in this small of an area could make much difference in groundwater or surface water flow. This is because there are various physical barriers present in the watershed that serve to restrict and interfere with the natural flow of waters. If there is any impact on groundwater or runoff from the proposed parking area and road, it would be highly localized.

The public use of the area is minimal; this is private property located behind commercial businesses with no public access. The private use is minimal; Sail North seeks to use the land as part of its business operations. The proposal is consistent with other land uses in the area, as is reflected in the local zoning and by the existing development.

This proposal entails filling a .89 acre area of a parcel containing around 8 acres of wetland; thus, this proposal will affect 10% of the wetland on the Petitioner's property. Sail North has proposed off-site mitigation, although those plans remain indefinite since there was no agreement between the parties that a permit could be issued. The Department would normally not propose mitigation for a project that was denied. There can be no on-site mitigation, since the remaining unused land appears to be wetlands and neither of the parties made such a proposal. It appears onsite mitigation could be more destructive than productive.

The Department witnesses testified the property is a diverse functioning wetland with considerable wildlife value. They believe the wetland benefits will be permanently disturbed by the construction of the road and parking area. There was no testimony as to whether the characteristics of this land are unique or scarce for this geographic area. It is logical to assume clearing and filling would permanently change the character of the .89 acres of land. It is also likely 90% of the wetlands on the property would be unaffected by the changes. Mitigation could replace the wetlands changed by the project, by converting other lands from upland to wetland.

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

The area surrounding the project is somewhat unusual in its configuration. The watershed is divided by two artificial barriers that are parallel to one another and act to intercept waters flowing toward Grand Traverse Bay; one is M-22, the other is a railroad grade. Thus, the flow of water into and out of the land between the barriers is restricted to the culverts that allow for the passage of water. Further, as part of a recent drain project, the waters of a 100 year flood are diverted at the railroad grade towards the Rennie Oil Stream and away from the Coal Dock Stream.

This immediate area is best described as a commercial strip development along the west side of M-22. The eastern side of M-22 is, generally, very near the shore of the west arm of Grand Traverse Bay. It is probably a fair statement that the land behind the businesses on the west side of M-22 is mostly wetland. It is probable much of the strip development has been constructed on historic wetlands. The Township Planner testified the Township's goal is to keep the commercial buildings close to M-22, where the soils are more stable, and to use the more unstable wetland soils behind the businesses for parking lots and service drives.

This watershed appears to be fairly small in size, limited to a few hundred acres of land, bisected by M-22 and the railroad grade. Mr. Brown, a wetlands expert hired by Sail North to assist in its application, described the immediate land vicinity to the project as a "sub-watershed." This general area, which will continue to experience development pressure as a result of increased population and increased traffic on M-22, is the subject of various development concerns. This Office has had two other wetland cases concerning lands in the immediate vicinity, one for a development proposal and another concerning a proposal by the Drain Commissioner and Township to reroute stormwater. The Department witnesses also testified as to other permit applications in the area. A reason for some of the recent permit application activity is the lifting of a moratorium on building and wetland fill, imposed by the Township because of flooding concerns. This project was delayed because of that moratorium. The approval of the drainage project addressed the drainage and flooding concerns of the County and Township and, therefore, the building permit moratorium was lifted. There will continue to be development pressure in the area and the cumulative impacts are very difficult to assess. Each proposal must be examined in view of its merits, and mitigation may serve to reduce or eliminate any potential cumulative adverse effects.

As part of the analysis of the cumulative effects of a proposal, the Department examines the existing uses to determine if a reasonable use of the property has been made. This is not a specific requirement of the statute; although, it might be read into it as a part of the alternatives analysis. In this matter, Mr. Kogge, Water Quality Specialist, Cadillac District Office, Land and Water Management Division, who reviewed the site, testified and Mr. Sikkenga agreed, a reasonable use of the property has been made. They reasoned Sail North has a business that appears fully functional, and a further expansion is not necessary to make a "reasonable" use of the property. In this case, the analysis of the reasonableness of the Sail North properties is not that straightforward. There are several individual parcels of land involved, all of which were acquired for a business purpose. It would be unreasonable to assert Sail North lost the right of use for newly acquired parcels, because it had fully utilized the existing parcels in its business. This project affects two separate parcels; the Bohn parcel on the north side of the main service and repair operation and the rearward parcel, where the railroad parking lot and winter boat storage is located. The Bohn parcel is adjacent to the original service buildings and was acquired as part of the efforts to consolidate operations. There is no evidence of a permitted fill on either of these properties. Although there was a permit issued for some fill as part of the access road to the railroad parking area; they are separately described parcels of land and were purchased from different owners. It would be improper to assert a reasonable use of these two parcels has been made because of activity on other lands in the same ownership. Proposals for these properties must be evaluated on their own merits. The common ownership of separate parcels does not foreclose consideration of other permit applications.

A staff person from the Michigan Department of Transportation (MDOT) testified about M-22, its current condition, and long range plans for the highway. One of the long range plans, as mirrored by the Township Planning Director, is to eliminate multiple entrances to businesses from M-22. The way to eliminate multiple business entrances is to build a rear service drive for vehicular access to, and parking for, the businesses. A limited number of entrance points onto M-22 from the rear service drive would be permitted. If the Township condemned lands to create a public road, or required a service drive behind the existing strip development, extensive wetland filling would be necessary. The Township would like fewer entrance drives and a greenbelt buffer created along M-22. This goal is probably not entirely achievable, because the coal pile is in the middle of the area where a service drive paralleling M-22 would be located. Such a project would probably require an extensive wetland filling, which may or may not be permissible under the Act. Further, since there is some degree of development pressure in the area, a way to lessen the potential future impact of proposals is to require a conservation easement on the remaining wetlands on these properties. This will eliminate the potential for further activity on this land and will mitigate for the loss caused by this project. I find, as a Matter of Fact, the cumulative impact of this proposal, when mitigation measures are considered, is minimal.

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

There are no identifiable impacts on historic, cultural or recreational values at the site. The concerns expressed in the project denial relate to the ecological and wildlife values associated with the site. The scenic value is highly subjective and not one argued in this case. There was no testimony presented regarding impacts on fish.

Department staff is of the opinion the area has considerable value as wildlife habitat and are concerned potential erosion and sheet flow of stormwater could cause sedimentation of the creeks in the vicinity if the project were permitted. The Petitioner's expert, Mr. Brown, felt opening up of the land and clearing it for the road would improve wildlife habitat. He agreed with the list of plant species the Department staff had prepared for the property, his disagreement was regarding the value of the habitat on the site. He felt the property was disturbed and isolated by all of the adjacent activity, such as the highway, other businesses and the railroad grade. He testified clearing some of the dense shrub scrub plants for the road and storage area would improve the habitat for waterfowl. The Department witnesses, Mr. Kogge and Mr. Sikkenga, felt the habitat was diverse and of considerable value. They testified, based on their inspections, portions of the property are used as a winter deer yard, presumably the stand of cedars. Mr. Brown had contacted the wildlife biologist at the MDNR Cadillac office and inquired as to whether this property was a deer yard. He was told the property was not shown on the wildlife division maps as a deer yarding area. Mr. Sikkenga explained the scale of the Wildlife Division maps was too small to depict small areas where there may be deeryards. The maps are not intended to identify every place deer might use for yarding in the winter, but are a tool used primarily for tracking deer on public lands. It is always more appropriate to use on-site data as opposed to general sources of information. Based on the observations of Mr. Sikkenga and Mr. Kogge, I find, as a Matter of Fact, the area is used by deer in the winter as a yarding area. Since the area is small, its value is unknown. Further, the testimony was not specific as to whether the deer yarding area was to be disturbed by the proposal. The yarding area is in a stand of cedar trees. The testimony is the clearing is to occur in a shrub scrub area. Also, there would be no human intrusion into the area in the winter, because there would not be the movement of boats in and out of the storage area at the repair facility.

All witnesses agreed the area is frequented by deer, grouse and there are beaver on the property. Mr. Wills has a nuisance removal permit to trap beaver because of the flooding they cause. Mr. Sikkenga testified he also saw bobcat tracks on the property. Mr. Kogge and Mr. Sikkenga were of the opinion the habitat would not be improved by opening up areas for a road and subsequent boat storage. They described the property as having a variety of wetland habitat, ranging from emergent plants, on the fringes of the Coal Dock Stream, to cedar trees and shrub scrub. The area proposed for the project is shrub scrub wetland and has thick vegetation. They are of the opinion this area provides excellent cover and would not be enhanced by clearing. There was no evidence presented as to the relative abundance or scarcity of similar habitat in the area. I find, the proposed project would have little impact on wildlife in the area.

There was considerable testimony concerning the potential impact on the two small creeks and the Coal Dock Stream. These concerns are discussed in detail at other places within this Proposal. I find the potential impact on the ecology of the waters flowing into and out of the area is minimal.

There is a plan to expand the width of M-22 from 3 to 5 lanes in 1995. The MDOT predicts increased traffic on the highway and characterizes the road as "very busy and hazardous." The traffic counts reveal the road usage is becoming less seasonal, and high traffic volumes are experienced throughout the year. The MDOT witness testified anything that removes traffic from the highway is in the public interest. He testified a study of accident statistics showed most of the accidents on M-22 involved rear-end collisions. These statistics indicate traffic congestion and problems vehicles have safely making turns onto and off of the road. Slow moving vehicles, such as towing boats on the highway, are an additional hazard. It is obvious the removal of boat traffic from M-22 would be a public safety benefit.

(f) The size of the wetland being considered.

The testimony was not precise on this issue. It appears this wetland is part of a wetland around 80 acres in size, and something over 100 acres of wetland are located on the west side of the railroad grade. The portion of the wetland on the subject property is over eight acres in size. All of the wetlands were probably historically connected, since they are divided by man-made features.

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

According to the testimony, the Township has 230 acres of wetland within its boundaries, most of which is in the immediate area of the project. There was no evidence presented as to the historical amount of wetland.

(h) Proximity to any waterway.

The Coal Dock Stream and two small tributaries either traverse or originate on the property. These waters flow from the subject property, under M-22, and into the west arm of Grand Traverse Bay. The property is about 880 feet west of the Bay. There is concern for the two small tributaries and the Coal Dock Stream being potentially degraded by the project. This proposal is a relatively small project to be constructed in the least intrusive manner. The project is for a 12 foot wide road, with a 16 foot wide base, 780 feet long. The boat storage area is created by widening the road an additional 64 feet in width along 410 feet of road. The boat storage area is created by a widening of the road. The plans are for building with a geotextile fabric, presumably covered by gravel. This type of construction is of much lesser impact than soil removal, sand fill and pavement. Sheet flow is unlikely on this type of surface. It is my finding, the construction can be accomplished with minimal impact, and the long-term effects of the project would be minimal.

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

The proposal has a significant economic value to Sail North for two reasons. First, it allows Sail North to use a portion of its land that is not useable for business in its current condition. Second, it would permit more efficient business operations. To the extent a greater use can be made of the property, its value for taxation purposes will increase, which is a public benefit.

The Petitioner offered testimony as to the value of the property as unbuildable wetland and as useable commercial property. Commercial use of the land is of greater economic value, as would be expected. Greater land value will yield higher local property taxes which is a benefit to the community. To the extent this project accommodates further expansion of the business, it has economic value in the potential jobs to be created and the indirect benefits of an expanded payroll to the community. Mr. Wills testified as to the growth of the service portion of Sail North's business and to the large base of potential customers available. He testified the proposed improvements are an integral part of plans to continue to expand the business and meet the customers' needs. I find, as a Matter of Fact, the project will have a positive economic impact.

After considering each of the above criteria, the statute requires a balancing of the benefits against the detriments to determine if the activity is in the public interest. In balancing these criteria, I find, as a Matter of Fact, the proposed project is in the public interest.

Section 9(1) also requires a determination as to whether a permit is necessary to realize the benefits derived from the activity. A permit is necessary to attain the benefits of the proposed activity. I find, as a Matter of Fact, the permit, as modified, is necessary to realize the benefits derived from the proposed activity.

Section 9(1) requires a third determination; whether the proposed activity is otherwise lawful. I find, as a Matter of Fact, the proposed project is otherwise lawful. The proposal is consistent with local zoning.

Sec. 9 (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 finding of necessity made by other state agencies. While it appears MDOT is supportive of the proposal for safety reasons, there have been no formal findings of necessity. It is clear MDOT is in favor of any activity that reduces highway hazards. It probably is an unrealistic leap of logic to assume MDOT is in favor of the specific project. MDOT'S favorable position flows from the result, less traffic hazard, not from the activity.

Sec. 9(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.

The Department denied the project primarily because it believes there will be an unacceptable disruption of the aquatic resources. This concept is a difficult one to apply. It embraces a term that does not appear elsewhere in the statute and is undefined. It has created some of the more difficult permit review analyses. Unless the evidence was absolutely one-sided and clear, this section has created difficulties in its application to the facts. This is because the statute has, in the same section, required a balancing of all of the potential factors, to determine if the project is in the public interest. A component of the public interest analysis is the consideration of the environmental consequences of the activity. In order for the concept of aquatic resources to have meaning, it must be read in context. It clearly is not intended as a reiteration of the prior listed standards. This interpretation would render the concept as surplusage and having no meaning, even though consideration of these standards is required. The logical meaning of the terminology is it applies to the aquatic resources proximate to the property, since the other sections of the Act are more specific in the scope of their applicability. The other standards consider matters unrelated to aquatic resources; such as, economics, public health, historic and scenic factors. The aquatic resources associated with this project are the emergent wetlands associated with the Coal Dock Stream and the small creeks. There is no proposal for any fill activity in the emergent wetlands next to the Coal Dock Stream. That area is to be largely undisturbed.

There is some concern about a potential backup of excess water into the emergent area next to the Coal Dock Stream. There is, however, no indication the addition of water to this wetland would cause any adverse impact. Further, the addition of water to a wetland is not a prohibited or regulated activity under the Act. If anything, the periodic flooding of wetlands is a benefit and not a detriment. Sail North disputed the possibility of flooding, and pointed to the newly enlarged culverts downstream in the Coal Dock Stream, which were designed to accommodate a large volume of water flows. The Drain Commission has also diverted 100 year floods out of the Coal Dock Stream and into the Rennie Oil Stream. Even if there were flooding, there would be no impact of any consequence. This is because the water would back up on Sail North's property where no activity is planned; in effect, it would flood the wetland. The Coal Dock Stream is, generally, unaffected by this proposal; the culverts, adjacent fill and the Stream crossing are in existence. There was no evidence of any affect on the west arm of the Grand Traverse Bay.

The testimony was less clear with regard to the unnamed small creeks, apparently originating on the property. It seems, because of the heavy vegetation, finding the precise location for the project in relation to these small creeks is difficult. The witnesses testified one of the creeks was on the edge of the property and may be on the adjoining Traverse City Power and Light Company property. Thus, a determination of the consequences to the small creeks is difficult. The Department was concerned culvert installation could cause sedimentation of the creeks. Mr. Brown offered that the permit could be conditioned upon doing the work in the driest time of the year, which would minimize disruption and allow for stabilization. Because the Department concluded the project created an unacceptable disruption, there was no evaluation whether the project could be reconfigured to lessen the potential for an impact on the small creeks. It appears only one of the small creeks would be crossed by the road. These creeks are very small in size and careful construction can probably avoid or significantly reduce any impacts. For example, it might be a desirable alternative to move the storage area further back onto the property and away from the creeks.

It must be made clear it is not the Department's obligation to design projects for applicants. There were on-site meetings to review and discuss the various proposals. Plans were revised by the Applicant in an effort to meet the Department's objections. The plans probably could have had greater construction detail. But when the circumstances are examined, it is unrealistic to expect more detailed information. The plans were developed in an effort to resolve outstanding issues. However, those efforts were not successful. That failure is imbedded in the issue of whether this project poses an unacceptable disruption of the aquatic resources. After careful consideration of all of the factors, I find, as a Matter of Fact, the project will not cause an unacceptable disruption of the aquatic resources.

I find, as a Matter of Fact, the proposed activity is primarily dependent upon being located in the wetland. Sail North has no other place to go with the expansion of its business. The expansion will either be at this location or it will not occur.

I find, as a Matter of Fact, the Petitioner does not have a feasible and prudent alternative. It may be some minor revisions could be made to lessen the overall impact of the project, such as moving the storage area or assuring a minimal impact to the small creeks. Those types of minor changes would not alter the essential character of the project. Sail North will fine-tune the project to minimize the potential impacts.

I find, as a Matter of Fact, jurisdiction should be retained to finalize mitigation. Because of the requirement for a conservation easement, off-site mitigation should be no more than one-for-one replacement of lost wetlands.

1. The subject property is a wetland which is contiguous to an inland lake or stream. Thus, it is a regulated wetland and a permit is required, pursuant to Section 5(a) and (b).

2. Based on the Findings of Fact, I conclude as a Matter of Law, the proposed activity is in the public interest.

3. Based on the Findings of Fact, I conclude as a Matter of Law, the proposed activity will not cause an unacceptable disruption to the aquatic resources.

4. I conclude, as a Matter of Law, the project is dependant upon being located in the wetland.

5. Based on the Findings of Fact, I conclude as a Matter of Law, there is no feasible and prudent alternative to the proposed project; however, minor changes may make the project better, and mitigation is necessary to compensate for the loss. I would propose, as a portion of the mitigation, a conservation easement be placed on the remaining portions of the wetland, located on Sail North' s property. This restriction will assure the long-term preservation of the area and compensate for the wetland loss.

Based on the Findings of Fact and Conclusions of Law, it is proposed the Petitioner's application for a wetland permit be approved, as conditioned by this Proposal for Decision. It is further proposed, jurisdiction of this matter be retained for the purpose of addressing any issues which might arise as to the proper mitigation for the fill.

Dated: April 29, 1994 

William C. Fulkerson
Administrative Law Judge

RE: Goemaere-Anderson Wetland Protection Act [203] Appeal of Sail North, Inc./Michael W. Wills
File No. 89-6-127
PETITIONERS' EXHIBITS

P-1 Two page History of Harbor Boat Shop Wetlands
P-2 Harbor Boat Shop Revenues History. Chart shows storage, parts and service from 1984 - 1992.
P-3 Highlighted, pages 20 and 21 of Section 7.2.0 Intent and Section 7.2.1 Permitted Uses under Commercial C-2.
P-4 Michigan Department of State, Watercraft Registration Statistics, County Distribution for Antrim and Grand Traverse Counties.
P-5 Access Requirements and Yard Requirements for Commercial Districts along M-22, Amendment 91 - P4A.
P-6 Four page Leelanau Scenic Lease dated September 1, 1989.
P-7 Harbor Boat Shop, service versus storage seasonal trends, figures represent 5 year average percentage of annual revenues.
P-8 Stipulation to Entry of Consent Judgement and Consent Judgement signed by the Honorable Charles M. Forster, Leelanau Circuit Judge dated April 30, 1992.
P-9 Map of proposed alternate solution of Leelanau County, Elmwood Township, part of Government Lot 1 revised 07/13/91.
P-10 Letter dated March 3, 1993 to Michael W. Wills, Petitioner, from Richard J. Sikkenga, Regional Supervisor, LWMD, MDNR.
P-12 Map of "compromise " plan of Leelanau County, Elmwood Township, part of Government Lot 1 submitted 12/9/91.
P-13 Core-board overlay of site dated January 27, 1993.
P-14 Listing of Marinas updated June 8, 1993.
P-15 Chart of service holding area lost to zoning versus proposed fill.
P-16 Chart of service holding capacity demonstrating impact of fill on service capacity.
P-17 Chart of Harbor Boat Shop impact of proposed fill.
P-18 Chart of impact of "wetlands" on land value using township assessor's valuation formula.
P-19 Letter of Charter Township of Elmwood dated June 4, 1993 addressed to Mike Wills.
P-20 Video tape labeled, "01/25/93 demo of boat transport to storage".
P-21 Video tape labeled, "Boat Haul & Store".
P-22 MDOT Transportation Planning Services Division, Traffic Record Program Q/413/09, page 8, year 1992.
P-23 MDOT Transportation Planning Services Division, Traffic Record Program Q/413/09, page 3, year 1991.
P-24 Map of site.
P-25 Accident Tabulations, Report 1, dated June 15, 1993 for M-22, Leelanau.
P-26 Letter dated October 7, 1988 to Stuart Kogge/Chuck Wolverton, MDNR, Land Resource Programs, Cadillac from Judith M. Egeler, Administrator, Leelanau Soil Conservation District.

RESPONDENTS' EXHIBITS

R-1 Public Notice dated May 1, 1989 for Michael W. Wills.
R-2 Letter dated June 26, 1989 from Stuart Kogge, Water Quality Specialist, LWMD, Cadillac District Office to Michael Wills.
R-3 Project Review Report dated October 18, 1989.
R-3A Site plan received September 18, 1989.
R-4 Letter dated December 6, 1989 from Stuart Kogge, Water Quality Specialist, LWMD, Cadillac District office to Michael Wills.
R-6 Letter dated December 26, 1991 from Stuart Kogge, Water Quality Specialist, LWMD, Cadillac District Office to Michael Wills.
R-7 Listing of Chronology of Events from 1979 to September 1991.
R-8 Letter dated June 1, 1993 from Richard J. Sikkenga, Regional Supervisor, LWMD, MDNR, Region II Headquarters to Michael Wills.
R-9 Site plan dated February, 1989.
R-10-A, B, D, E, F, G, H. Photos dated May 16, 1989.
R-11-A, B, C, D, E. Photos dated October 18, 1989, Stuart Kogge, MDNR.