Petition of Donald C. Schnetzler

File No. 94-05-0118W
________________________________________________________________

This contested case involves the denial of an application for a permit to place fill in a wetland for the purpose of constructing a garage/storage building on property adjacent to Douglas Lake, Munro Township, Cheboygan County, Michigan. The Application For Permit, filed May 26, 1994, was denied under the provisions of the former Goemaere-Anderson Wetland Protection Act, MCL 281.701 et seq.; MSA 18.595(51) et seq., currently Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended. The Petitioner, Mr. Donald Schnetzler, requested a hearing pursuant to Part 303 of the Act. A contested case hearing was held in this matter on March 22, 1996. This is the Final Determination and Order of the Michigan Department of Environmental Quality (Department). MCL 24.285; MSA 3.560(185).

This case was heard under 1994 PA 451, as amended, Natural Resources and Environmental Protection Act (NREPA); Part 303, Wetland Protection, MCL 324.30301 et seq.; MSA 13A.30301 et seq. and the administrative rules. On October 1, 1995, the Department was created by Executive Order 1995-18. Through this Executive Order, the authority to administer the NREPA was transferred from the Michigan Department of Natural Resources to the Department. The hearing on this matter was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560(101) et seq.

Donald Schnetzler is the Applicant for a permit and the Petitioner in this case. The professional staff of the Department is responsible for administering Part 303 of the Act and is the Respondent. Mr. Schnetzler represented himself in these proceedings. The Department was represented by Richard J. Sikkenga of the Land and Water Management Division.

The Petitioner testified on his own behalf and submitted exhibits to the record. The Respondent called one witness, Mr. Brad Wilkins, District Supervisor, and entered exhibits into the record. A list and description exhibits received is attached to this Final Determination and Order. The Petitioner's exhibits are labelled "P" and the Department's exhibits are labelled "R".

Mr. Schnetzler purchased the subject parcel in 1978. The parcel is adjacent to a privately maintained, gravel road, called Van Road, which is an extension of Silver Strand Road. On the lake side of the road bordering Douglas Lake, Mr. Schnetzler owns a parcel of property 50' wide x 310' deep. He also owns a parcel of land directly across Van Road, which is 50' wide x 135' deep. The Public Notice states the Petitioner requests a permit to "place approximately 440 cubic yards of fill material in a 50 by 80 foot wetland area contiguous to Douglas Lake for the construction of a garage/storage building . . .." Exhibit R-1. The Application was denied on July 15, 1994 and a Petition for a contested case hearing was filed on August 29, 1994. Exhibits R-4 and R-6. The denial was based on: 1) the proposed project not being in the public interest because the benefits that may accrue from the project do not balance against the foreseeable detriments of the activity; 2) the proposed project will cause an unacceptable disruption to the aquatic resources; 3) a storage building is not considered a wetland dependent activity; 4) feasible and prudent alternatives exist to the project.

FINDINGS OF FACT

The first issue presented is whether or not the subject property is a wetland as defined by the Act. Wetland is defined in Section 30301(d) as:

`Wetland' means land characterized by the presence of water at a frequency and duration sufficient to support and that under normal circumstances does support wetland vegetation or aquatic life and is commonly referred to as a bog, swamp, or marsh . . ..

A determination that a parcel is or is not a wetland is

indicated by three criteria: See, 1988 AACS, R 281.924 (2)(a) and (b).

1) The type of vegetation
2) Hydrological indicators for water, and
3) The soil characteristics.

Mr. Schnetzler does not contend the landward parcel is without wetlands. Following a site inspection of the property, Department staff classified it as a scrub-shrub type wetland characterized by Black Ash, Sedge Sp., Equisetum Sp., Tag Alder, and Sensitive Fern. Exhibit R-2. Standing water was also reported as being present on the site. The soils are composed of 12" of wet, black organic soils over wet sand. Exhibit R-2. I find, as a Matter of Fact, the subject parcel is a wetland as defined in Part 303 of the Act.

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

(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond or a river or stream.
(ii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and more than 5 acres in size; except this subdivision shall not be of effect, except for the purpose of inventory, in counties of less than 100,000 population until the department certifies to the commission of natural resources it has substantially completed its inventory of wetlands in that county.

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

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

The proposed project site is within 500' of Douglas Lake. Exhibit R-1. I find, as a Matter of Fact, the proposed project site is in a regulated wetland.

The proposed activity involves placing fill material in a regulated wetland. Under Section 30304 of Part 303 of the NREPA, all such activities are prohibited without a permit, as follows:

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

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

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

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

(d) Drain surface water from a wetland.

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

(1) A permit for an activity listed in section 30304 shall not be approved unless the department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.

A determination of whether the project is in the public interest is made by applying criteria enumerated in Part 303. These criteria are found in Section 30311(2) as follows:

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

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

Mr. Schnetzler asserts his private need for a storage building is substantial. He does not have a storage building on the lake side of the road and contends he has no room on that parcel for a building of the size he requires. Mr. Schnetzler testified his need for adequate storage of vehicles, recreational and maintenance equipment, tools and wood to heat his home, which is his permanent residence, are uses that facilitate his daily living on Douglas Lake. The building would provide a place for him to protect his personal property from the elements and from possible theft or vandalism. Further, having access to his vehicles that is a reasonable distance from his home is necessary.

There does not appear to be any public need for the proposed project. This proposal is to provide adequate storage for the Petitioner's personal property, adjacent to his home site.

I find, as a Matter of Fact, the public need for the proposed project is small, while the private need for the proposed project is relatively large.

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

Mr. Brad Wilkins, Supervisor, Land and Water Management Division, testified the Petitioner has feasible and prudent alternative locations for the storage building. First, Mr. Schnetzler owns approximately 40 acres down Van Road which contains suitable upland for the proposed activity. Second, Mr. Wilkins testified a building could be located on the lakefront side of the road if the existing utility lines and septic system were moved. A letter to the Department from the "Tip of the Mitt Watershed Council," Robyn Schmidt, Wetland Project Staff states alternatives do exist, such as reducing the amount of fill in the wetland. Exhibit R-5. Mr. Schnetzler maintains that moving the proposed project to another location on the lakefront property, or to the property he owns further down Van Road, would not accomplish his purpose and there are, therefore, no alternatives.

Mr. Schnetzler testified there is limited room on the lakefront parcel because of the location of utilities and a neighbor's easement. Exhibits P-1 through P-6. He testified a mounded septic system was constructed there four years ago, at which time, he asked the county health department if the system could be installed across the road where the current project is proposed. He was instructed he had no suitable location on that parcel and the only site available is where the system is currently located. He testified the septic system would be difficult, and expensive, to relocate. Mr. Wilkins admitted this alternative upland location would require relocating the utilities and eliminate a walkway and drive. He testified, however, these changes would be worth the expense in order to preserve the natural aesthetics and wetlands benefits of the parcel across the road. Mr. Schnetzler believes the aesthetic value of having his belongings housed in a storage structure outweighs the aesthetic value of leaving the parcel in its natural state. I find, the lakeside parcel is not a prudent alternative to the proposed fill. Mr. Wilkins testified, and Mr. Schnetzler concurred, that Mr. Schnetzler owns approximately 40 acres further down Silver Strand Road. He testified this alternate location could be used for a garage/storage facility. Mr. Schnetzler testified this land is currently for sale and regardless of this fact, the site is too far from his primary residence on Douglas Lake. I find, Mr. Schnetzler's 40 acre parcel is not a feasible or prudent alternative to the proposed fill.

Mr. Wilkins suggests that using a lesser amount of fill is a feasible and prudent alternative to the proposed fill. Mr. Schnetzler offered to reduce the footprint of the fill area by one-half, or to 25' x 80'. The Department did not accept this offer. I find, the amount of fill material could be reduced further than offered by Mr. Schnetzler and still serve his purpose. Placing fill on the parcel for 80' back from the road is excessive for this proposed project. I find a fill footprint of 25' x 50' will adequately serve the Petitioner's needs.

I find, as a Matter of Fact, feasible and prudent alternative locations for the fill and building of a garage/storage building are not available. I find a feasible and prudent alternative method is to reduce the amount of proposed fill.

(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 Project Review Report, under the "Permit Application Review Criteria" states the project poses potential adverse impact upon the water circulation, wildlife and water quality of the area. Exhibit R-2. Mr. Wilkins opined that placing fill on the proposed site would pose an adverse impact to the substrate, water circulation and filtration and wildlife habitat, though he did not provide data or estimates of the extent of the impact. He further testified the parcel provides flood and storm water storage and the surface vegetation filters nutrients, like a kidney, which makes for purer surface and/or groundwater. Mr. Wilkins also testified of the presence of waterfowl on the site. The current use of the property by the general public is non-existent and, currently, there is little private use of the property. Mr. Schnetzler testified this parcel has already been impacted by the fill used to extend Silver Strand Road. In his opinion, placing minimal fill in this area will have little cumulative effect on the associated wetlands. Filling for the road has probably caused the greatest impact on the wetlands in this vicinity. Based on the foregoing, I find, as a Matter of Fact, the wetland values would be minimally impacted if the feasible and prudent alternative method discussed under Subsection (b) was approved.

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

The statute mandates cumulative effect of the proposed project be considered in relation to wetlands in the affected watershed. In this case, the watershed is that of Douglas Lake. Mr. Wilkins testified there are 200 acres of wetlands associated with the proposed site. Furthermore, there appears to be interest by adjacent property owners to construct structures similar to the one applied for by Mr. Schnetzler. The Department has expressed concern about issuing fill permits for storage buildings in the area. The Department believes the cumulative effect of like proposed projects could potentially be threatening to the natural wetlands ecology of the area. The area, however, is relatively isolated and sparsely populated and no evidence was presented that the area around Douglas Lake is being pressured by on-going development.

Several file application numbers are referenced on the Department's Exhibit R-6, an interoffice communication regarding the subject Application. It appears to indicate there is a policy to reference other applications for proposed projects of this type in the area and to note they are consistently denied. The Department's concerns about the cumulative impact from filling appear to be over-emphasized and used as a primary basis to deny applications filed for similar projects in this area. However, blanket denial of permits as a policy to prevent the cumulative impact of filling within the area is a misapplication of the statutory criteria for considering permit applications. Other measures, such as obtaining conservation easements, could help to assure the impact on wetlands resource remain minimal.

I find, as a Matter of Fact, considering the proximity to the road of the proposed project, the relatively small amount of fill involved, the size of the wetland involved and the size of the wetlands remaining in the area, little cumulative impact will occur to the Douglas Lake watershed as a result of the proposed project.

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

There is testimony as to the project's impact on ecological values. The ecological impact of the project is considered by the Department to potentially be extensive, when viewed in consideration with that of other like, proposed projects. Mr. Wilkins testified placing fill on the parcel would pose an adverse impact to the substrate, water circulation and filtration. Mr. Wilkins also testified the project would impact the public health because water quality would be effected by the loss of wetland filtering of water. He testified the filtration benefits provided by the site for surface and groundwater protects the quality of the water that runs into the Maple River, located some 1/2 mile from the parcel, as well as for waters that eventually percolate into Douglas Lake. No data or estimates of how substantial these impacts might be, in lieu of this parcel or the larger wetlands in the area, was provided for the record.

There was testimony the attraction of this area is the natural state in which it remains, but there was no specific testimony as to how recognized historic, cultural, or scenic values have been or would be impacted as a result of the project.

Testimony on the potential impact to fish values in the watershed is that it would be minimal; Exhibit R-2 does not note fish values being effected at all. Mr. Wilkins did testify the impact on wildlife would be adverse, however, he indicated there are no known endangered species on this parcel.

I find, as a Matter of Fact, the activity poses no measurable adverse impact on the values referenced in subsection (e).

(f) The size of the wetland being considered.

The subject parcel is part of the 200 acre wetland complex.

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

Mr. Wilkins testified a large amount of wetland remains in the area. Furthermore, Mr. Wilkins testified the University of Michigan owns a large amount of wetlands adjoining the subject parcel. While Mr. Wilkins could not testify to the potential for future development of the University of Michigan property, it would appear to be unlikely that development will occur on these lands. (h) Proximity to any waterway.

The wetland is within 500' of Douglas Lake. Mr. Wilkins testified the parcel is within 1/2 mile of the Maple River.

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

There would be an economic benefit to the Mr. Schnetzler if he were able to construct a storage building on the proposed site. In its present state, the landward parcel has little economic value. With the garage/storage facility, Mr. Schnetzler's possessions could be protected from the elements and/or possible theft or destruction. Furthermore, the proposed construction would provide work for tradesmen, and add to the local tax base. Also, the economic value of the subject parcel would be increased if the activity is approved.

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

Section 30311(1) requires a determination as to whether a permit is necessary to realize the benefits derived from the activity. The benefit to be derived from the proposed activity is building a garage/storage building for the Petitioner, which cannot be done without placing fill in the wetland. I find, as a Matter of Fact, a permit is necessary to realize the benefit that would be derived from the proposed activity.

Section 30311(1) also requires a determination of whether the proposed activity is otherwise lawful. There was no testimony specifically regarding this factor. However, considering the purpose of the proposed project, in addition to other evidence on the record, it is inconceivable that the project would be anything other than lawful. Therefore, I find, as a Matter of Fact, the proposed project is otherwise lawful.

Sec. 30311(3) In considering a permit application, the department shall give serious consideration to findings of necessity for the proposed activity which have been made by other state agencies.

There have been no findings of necessity made by other state agencies.

Sec. 30311(4) A permit shall not be issued unless it is shown that an unacceptable disruption will not result to the aquatic resources. In determining whether a disruption to the aquatic resources is unacceptable, the criteria set forth in section 3 and subsection (2) shall be considered. A permit shall not be issued unless the applicant also shows either of the following.

(a) The proposed activity is primarily dependent upon being located in the wetland.

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

While the Department opined this project will have more than a minimal impact on the associated wetlands, the position is not supported by the evidence presented at the hearing. Considering the minimal fill required, other existing and proposed fills in this area and the remaining wetlands in the watershed, I find no unacceptable disruption to the aquatic resources will result.

I find, as a Matter of Fact, the proposed activity is primarily dependent upon being located in a wetland because there is no other feasible and prudent location available. I find, as a Matter of Fact, the Petitioner has a feasible and prudent alternative method to the proposed activity. The alternative is to use less fill than that proposed by the Petitioner.

Mr. Schnetzler testified to, and has shown, a need for the garage/storage building. An alternative method is to reduce the amount of fill. The extent of the wetland fill is to be modified to an area of 25' x 50'. The fill and the building are to be located as close to the road as possible.

As part of avoiding projected long-term cumulative effects to the watershed of Douglas Lake and to prevent future encroachment in the wetland, a conservation easement on the remainder of the lot should be granted to the Department.

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

2. I conclude, as a Matter of Law, the Applicant, Donald Schnetzler, is the proper Petitioner in this matter. I also conclude the Application For Permit was properly processed.

3. I conclude, as a Matter of Law, the proposed activity is in the public interest, pursuant to Section 30311(1).

4. I conclude, as a Matter of Law, the proposed activity will not cause an unacceptable disruption to the aquatic resources.

5. I conclude, as a Matter of Law, the proposed project is wetland dependent.

6. I conclude, as a Matter of Law, there is not a feasible and prudent alternative location or method for the proposed project, other than the determination made for the reduction of fill noted in the Findings.

7. I conclude the proposed activity is otherwise lawful.

8. I conclude mitigation in the form of a conservation easement is appropriate pursuant to the facts in this case. MCL 324.30312(2)

Based on the Findings of Fact and Conclusions of Law, it is DETERMINED permitting the Application for a Permit, as modified herein, pursuant to Part 303, Wetland Protection, of 1994 PA 451, as amended, is approved.

Therefore, IT IS ORDERED: the Petitioner's Application for a Permit, as modified for an area of fill measuring 25 x 50' wide x 2-3' deep, and granting a conservation easement on the remainder of the parcel is PERMITTED.

Dated: October 25, 1996

________________________________

Richard G. Lacasse
Chief Administrative Law Judge

IN RE: Natural Resources and Environmental Protection Act, 1994 PA 451, as amended; Part 303, Wetland Protection. Petition of Donald C. Schnetzler

File No. 94-05-0118W

PETITIONER'S EXHIBITS:

P-1 Detailed sketch drawing, with referenced dimensions, of proposed storage building, pursuant to Schnetzler Application request.
P-2 Detailed sketch drawing of lakefront property layout, with referenced dimensions, of Donald C. Schnetzler's homesite and septic mound.
P-3-6 Photographs of Petitioner Schnetzler's home, lot, drive and septic mound.

RESPONDENT'S EXHIBITS:

R-1 "Public Notice" filed by the State of Michigan, Department of Natural Resources, regarding a proposed project for Donald C. Schnetzler to, "place approximately 440 cubic yards of fill material in a 50 by 80 foot wetland area contiguous to Douglas Lake for the construction of a garage/storage building . . .." Submitted with attached copy of Application For Permit (May 26, 1994). Dated June 15, 1994.
R-2 "Project Review Report" for Application for Permit, File #94-5-118W, completed by MDNR June 6, 1994, regarding wetland fill Application filed by Donald C. Schnetzler. Dated June 6, 1994.
R-3 Detailed sketch drawing of lakefront property layout, with referenced dimensions, of Donald C. Schnetzler's homesite and septic mound. Undated.
R-4 Correspondence, certified mail, denial letter for proposed project, re: DNR File #94-5-118, Donald C. Schnetzler. Dated July 15, 1994.
R-5 Correspondence, Re: for DNR File #94-05-0118W; from Robyn Schmidt, Wetland Project Staff, Tip Of The Mitt Watershed Council, to Gloria Torello, Land and Water Management Division, Gaylord, Michigan. Dated July 1, 1994.
R-6 Correspondence, Re: for DNR File #95-5-118W, "Interoffice Communication" regarding referenced and surrounding, like proposed projects. Attachments. Dated July 14, 1994.
R-7-11 Photographs; Silver Strand Road; Subject, Donald C. Schnetzler property and proposed project site; taken by Gloria Torello and staff, MDNR. Dated July 22, 1994 and November 7, 1995.