SUBJECT: Part 301, Inland Lakes and Streams, and Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Mr. and Mrs. Laurence R. Sidebottom

File No. 96-07-0503
___________________________________________________________________

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated May 28, 1998. In a letter dated May 28, 1998, the Office of Administrative Hearings gave the Parties to June 19, 1998, to file written Exceptions to the Proposal for Decision. Counsel for the Petitioner filed their Exceptions on June 18, 1998. The Department of Environmental Quality did not file Exceptions. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a final agency decision pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.

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

The Petitioner argues the reliance on the testimony of two witnesses employed by the Department of Environmental Quality and Department of Natural Resources, Mr. Jeff Silagy and Mr. Steven Sendek respectively, regarding the effects of the proposed activity on Sage Lake and the amount of wetland in the area was improper. The argument is based on the assertion that the their testimony was not supported by identifiable facts and/or data. The Petitioner notes that it did not retain any experts to rebut this testimony and they lacked the financial wherewithal to do so. However, this Tribunal must base its decision on the evidence, including sworn testimony, adduced during the hearing.

The Petitioner's argument on this point pertains to factual findings made by the Administrative Law Judge who heard the testimony, and the findings will not be disturbed unless they are not supported by the record or result in a clearly unjust decision. In considering the record in this case, specifically pages 8, 9 and 10 of the Proposal for Decision, this assertion, if true, does not reach either level. Specifically, the argument does not affect the finding that the Petitioners are not entitled to the permit for which they applied because the activity would cause an unacceptable disruption to aquatic resources and a feasible and prudent alternative method, such as constructing the building on pilings so as to minimize impact on the wetland, may exist.

The Petitioner indicates the potential alternative method was not advanced by the Department. However, it is not the Department's duty to plan or design a project. Rather, the Department must review a plan, submitted in the form of an application for a permit, under the criteria of the appropriate statute and determine whether it is permissible.

The Petitioner also contends the denial of the proposed use constitutes a taking of the property and, therefore, he is entitled to compensation. It is well established that an administrative tribunal is a quasi-judicial body which lacks subject matter jurisdiction over constitutional claims. Dation v. Ford Motor Co., 314 Mich 152, 22 N.W.2d 514 (1946), and its progeny. However, the legislature has mandated that the Department be cognizant of takings issues while it carries out its permitting functions. MCL 24.421 et seq. In this case, it is noted that the Petitioners have an economic use of the property, a portion of their existing home and its septic system is on the parcel, and they have not applied for or explored other alternative methods which may be economically feasible.

The Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision of May 28, 1998, including the Findings of Fact and Conclusions of Law.

THEREFORE, IT IS ORDERED:

1. The Proposal For Decision dated June 18, 1997, is adopted by reference and incorporated into this Final Order.

2. The application for a permit for File No. 96-07-0503 is DENIED.

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

Dated: August 3, 1997

________________________________

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

SUBJECT: Part 301, Inland Lakes and Streams, and Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended;

Petition of Mr. and Mrs. Laurence R. Sidebottom

File No. 96-07-0503

May 28, 1998
Richard A. Patterson
Administrative Law Judge

This contested case concerns the petition of Mr. and Mrs. Laurence Sidebottom regarding the denial of their application for a permit to fill in a wetland and install a seawall at or near the ordinary high water mark of Sage Lake in Ogemaw County.

The proposal involves the utilization of land both above and below the ordinary high watermark of Sage Lake and, therefore, the criteria of both Parts 301 and 303 of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended; MCL 324.30101 et seq.; MSA 13A.30101 et seq., and MCL 324.30301 et seq.; MSA 13A.30301 et seq., must be considered.

The application for a permit, filed September 26, 1996, was denied under the provisions of Part 301 and Part 303 of NREPA and the administrative rules promulgated thereunder. Mr. and Mrs. Sidebottom requested a hearing pursuant to Part 301 and Part 303. The hearing in 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. The hearing was held on January 8, 1998. At the close of the hearing, the Parties request to file written final arguments was granted. Factual recitations contained in those filings were utilized as far as they accurately reflect the testimony, and those that did not were not considered in composition of this Proposal for Decision.

Mr. and Mrs. Sidebottom are the applicants for a permit under Part 301 and Part 303 and are the Petitioners in this case. The professional staff of the Department of Environmental Quality (Department) is charged with the day-to-day implementation of Part 301 and Part 303 and is the Respondent in this case.

Petitioners are represented by Darris B. Richards, Esq. At the hearing they presented testimony of Mr. Laurence Sidebottom, their son, Mr. Gary B. Sidebottom, as well as brief testimony from Mrs. Marie Sidebottom.

The Department is represented in this matter by Mr. Daniel Morgan, MDEQ, District Supervisor, Land and Water Management Division, Saginaw Bay District Office. The Department presented the testimony of Mr. Jeffrey J. Silagy, Department of Environmental Quality, Land and Water Management Analyst, and Mr. Steven P. Sendek, Fisheries Biologist, Department of Natural Resources.

There were 25 exhibits entered into the record. A list and description of those exhibits is attached to this Proposal for Decision.

The Parties entered the following factual stipulations at the commencement of the hearing:

1) Petitioners are the proper applicants for a permit.

2) The application for a permit was processed correctly.

I find these stipulations are legally correct, and I adopt them as findings. Stipulations entered into by the Parties shall be used as evidence at the hearing and are binding. MCL 24.278; MSA 3.560(178); Dana Corporation v. Employment Security Commission, 371 Mich 107, 110 (1963).

Petitioners own Lot 35 of the Sage Lake Camp Subdivision of Hill Township, Ogemaw County, upon which they reside. In addition, they own a large parcel known as Outlot No. 1, which is approximately 100 feet deep and 425 feet in length and is located to the south of Lot 35. Both parcels front on Sage Lake and were purchased simultaneously in 1976.

On September 26, 1996, Mr. Sidebottom applied for a permit to construct a seawall on the southerly portion of the outlot and place fill behind the seawall. The stated purpose of the application was to utilize existing upland and to fill a portion of the wetland to facilitate building a house with a well and septic system. The application anticipated a 130 foot wooden sea wall and 1,200 cubic yards of fill. The Petitioners are desirous of building a house on the outlot for resale to help finance their retirement, which is one of the reasons they purchased the property. The proposed fill is necessary to accommodate the footprint of the house and septic system.

The Petitioners' son, Gary Sidebottom, initially contacted the Department in the person of Mr. Fred Gottschalk, who is an acquaintance. Gary Sidebottom testified he met with Mr. Gottschalk on site and based on that meeting the permit application was submitted. Exhibit 1. After it was processed through the Permit Consolidation Unit, the application was forwarded to the Mio office and assigned to Mr. Jeff Silagy. Pursuant to Mr. Silagy's request, further information, specifically the deeds to the property and a copy of the plat, were provided to the Department. Exhibit 4. The application was noticed for public comment and a public hearing was conducted on December 19, 1996.

Subsequent to the public hearing, a revised site plan was submitted which proposed a decreased amount of fill and lessening the length of the seawall to 75 feet. Exhibit 10. In the revised plan a red line indicates the original plan and a solid line indicates the border of the revised fill location. While the fill under the revision is significantly less, the total amount was not quantified. However, Mr. Sidebottom testified the fill would involve 10% to 15% of the outlot. The area of proposed fill is also depicted in red cross hatches on Exhibit 9. The Petitioners' feel they have scaled down the project to the minimum to accommodate local zoning. The revised plan also has resulted in the issuance of a permit from the Ogemaw County Road Commission to fill in a road right-of-way and a set-back variance from Hill Township. Exhibit 8 and Exhibit 7. The revised application was denied by letter dated January 8, 1997. Exhibit 5.

Mr. Silagy disagrees with the depiction of the area of proposed fill on Petitioner's Exhibit 10. He characterized that document as indicating approximately 1/4 of the fill is proposed to be placed in the wetland. Based on his measurements, he contends the opposite would be true, with approximately 3/4 of the fill proposed to be placed in what he terms wetland. A notation on the application for permit indicates the original proposed fill to be some 1,200 cubic yards. Although the revised fill amount was not so quantified, it would still appear to be substantial.

The first issue presented is whether or not the subject property is a wetland as defined by the Act. Wetland is currently 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 property 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. Jeff Silagy testified he was on site and prepared a Project Review Report on January 8, 1997. Exhibit 11. Although he did not draw a wetland map at that time, Mr. Silagy measured the parcel. In so doing, Mr. Silagy determined only a small portion of the outlot was upland. That portion consisted of a more or less triangular piece of the property consisting of 35 foot width at the rear of the outlot which gradually decreased in width as it progressed lakeward. By exclusion, therefore, the remainder of the outlot is wetland according to his examination. Mr. Silagy observed Tag Alder, Red Osier Dogwood and cattails which confirmed to him the existence of wetland. In that the parcel is contiguous to Sage Lake, Mr. Silagy considered the parcel a regulated wetland. The Petitioners presented no evidence to dispute Mr. Silagy's analysis.

The next issue is to be addressed is whether this parcel is subject to regulation under Part 303. Subsection (d) of Section 30301, MCL 324.30301(d)(i), provides criteria which must be found before the Department may regulate a wetland. It must be either:

(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond or a river or stream.

As previously discussed, Mr. Silagy determined during his site visit that wetlands were present on a majority of the parcel. The record also indicates the parcel is directly contiguous of Sage Lake.

Based on the foregoing, I find, as a Matter of Fact, that the outlot consists of wetlands, excepting the upland portion described by Mr. Silagy, and is contiguous to Sage Lake. Therefore, I find, as a Matter of Fact, the subject parcel is a regulated wetland.

Part 303 contains criteria for the review of permit applications and mandates findings be made with regard to each criterion.

(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.

I find, as a Matter of Fact, that pursuant to the previous finding that the activity is proposed for a regulated wetland, a permit is necessary to engage in the activity requested, and the proposed activity is otherwise lawful.

A determination of whether the project is in the public interest is made by applying criteria enumerated in Part 303, Wetland Protection, of the NREPA.

The 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.

The private need is to facilitate Petitioners' desire to build on the outlot for resale to help finance their retirement. There would not appear to be any public need for the proposed activity.

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

There is a dispute as to the efficacy of building on the upland on the northern portion of the outlot as proposed by the Department. The Department considers building on the northerly portion of the outlot as a feasible and prudent alternative as there is upland available. Petitioners dispute this, indicating the existing home encroaches on the outlot and its septic tank and field are installed in the upland. Thus, there is insufficient space on the upland to accommodate another building. However, the fact that a portion of the existing home and septic tank is located upon the outlot means the Petitioners do have use of the parcel. Therefore, a denial of this permit application would not constitute a denial of all use of the subject parcel.

The drawing prepared by Mr. Silagy, attached to the Project Review Report, indicates an irregular upland area adjacent to the existing residence. The rough dimensions of the upland appear to be 70 feet on the west, 100 feet on the north and south and located approximately 50 to 60 feet from the lake. While this area would allow a building with a foot print of 720 square feet, which is the minimum required by zoning, set backs and the existence of the septic tank and field create practical difficulties. In addition, building a house virtually on top of the existing one is undesirable and would have limited market value.

Mr. Gary Sidebottom testified that in addition to the encroachment and septic system, in order to accommodate the required zoning set back of 50 feet from the shore and ten feet from the road, as well as the required minimum foot print of 720 square feet, fill is necessary. Therefore, while building there could be possible with modifications, it would not appear to be prudent. I find, as a Matter of Fact, that building on the northerly upland portion of the outlot is not a feasible and prudent alternative location to the proposed activity.

There is no evidence of any examination by the Petitioners of feasible and prudent alternative methods of constructing the residence. For instance, building the residence on pilings would reduce the impact on the wetland and may be a feasible alternative to placing fill on the subject parcel. However, due to a lack of evidence, no finding can be made on this point.

(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.

It was Mr. Silagy's opinion that the proposed fill would effect water circulation by blocking flow to the lake. He described the wetland as functioning like a kidney for Sage Lake, in that it reduces run off of particles and nutrients. Aesthetics would be effected as Sage Lake is used for recreation and people, in Mr. Silagy's opinion, want it to remain in its natural condition. Furthermore, Mr. Silagy testified the proposed activity would effect habitat for deer, rabbits and song birds, all of which he observed on the property.

The fill and seawall would further adversely effect spawning areas for fish and reduce propagation of aquatic invertebrates and insects. The latter considerations were also testified to by Mr. Steven Sendek, Acting District Fisheries Biologist, Fisheries Division, Michigan Department of Natural Resources. Mr. Sendek opined that wetlands provide unique fisheries habitat for breeding, feeding and nursery. They also buffer and stabilize flash flooding and act as nutrient sumps. He described Sage Lake as being popular for sport fishing, with the Pike and Bullfin in the lake being totally dependant on wetlands for spawning and nursery.

Petitioners did not directly counter these considerations, and did not present any scientific evidence to support these contentions. However, they do argue the extent of the impacts and assert they have no intention of impairing the ecology and do not believe the project would do that.

Private use would be enhanced in that a home could be built which would provide for a residence and income to the Petitioners. Because this parcel is privately owned, there is no public use other than the previously described benefits the wetland itself provides.

I find, as a Matter of Fact, that the effects of the proposal on public use is non-existent except for the benefits provided by this wetland. I find, as a Matter of Fact, the private use of the wetland is small.

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

There was no evidence introduced as to any other anticipated activities in the watershed. However, Mr. Silagy testified there is little remaining undeveloped property or wetlands adjacent to Sage Lake. Mr. Sendek testified that generally, any filling of a wetland is detrimental. However, he could not ascertain when a particular project would pass the "breaking point". It is probable, therefore, that fill of the extent anticipated by Petitioners will have a cumulative impact, and I so find, as a Matter of Fact.

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

There was no testimony as to any historic or cultural impacts and there would appear to be none. Scenic impacts are subjective, as borne out by the Petitioners' preference for a house on the site while the Department prefers an undisturbed wetland. Recreational values would not appear to be impacted in the sense that lake usage would not be effected. According to the testimony of Mr. Sendek the ecology, especially fish and wildlife, would be negatively effected by the proposed activity. Petitioners offered no scientific evidence to the contrary. Based on the testimony of Mr. Silagy and Mr. Sendek, I find, as a Matter of Fact, the ecological benefits of the wetland, fisheries and wildlife would be adversely effected by the proposed activity.

(f) The size of the wetland being considered.

The precise size of the wetland was not quantified on the record. As previously discussed, Outlot No. 1, which is approximately 100 feet deep and 425 feet in length, is almost entirely wetland.

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

The testimony as to the extent of remaining wetlands in the area was inconclusive. However, Exhibits E and C indicate the wetlands on the parcel are part of a large complex wetlands surrounding Sage Lake. Therefore, there are extensive wetlands in the immediate area west of the subject parcel, and limited hydric soils on the shore of Sage Lake. Exhibit 11 and Exhibit 14.

(h) Proximity to any waterway.

The subject wetland is adjacent to Sage Lake.

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

Assumedly, there would be an economic value to the Petitioners if they were to build, and sell, a residence on the parcel. There would also be some incidental economic benefit to those contractors and trades people involved in the project and ultimately to the township in the form of an increased the tax base.

After considering each of the above criteria, Part 303 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 not in the public interest.

Section 30311(1) also requires a determination as to whether a permit is necessary to realize the benefits derived from the activity. The benefits that would be derived from the activity, using the parcel to construct a residence, can be accomplished by other means. Specifically, the Petitioners have already used the parcel for a portion of their current residence and septic tank. If there is to be any additional use of this parcel, which is almost entirely wetland, a permit is necessary.

Section 30311(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.

(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 such findings 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 alterative does not exist.

Based on the previous findings, I find, as a Matter of Fact, that the proposed activity will result in an unacceptable disruption to the aquatic resources under the criteria set forth in section 3 and subsection (2).

I have previously found that a feasible and prudent alternative does not exist. However, a feasible and prudent alternative method of use which would minimize the impact to the wetland was not explored by the Petitioner. The project proposed by Petitioners is not the type of activity that can only be performed in a wetland. However, the proposed activity necessarily involves utilization of wetlands and is, therefore, dependant upon being located, at least partially, in the wetland.

There is a lack of testimony as to the exact location of the ordinary high water mark of Sage Lake. Therefore, it cannot be ascertained whether there is anticipated activity below the high water mark, which is necessary to invoke Part 301 jurisdiction. However, because this Proposal for Decision proposes the permit be denied under Part 303, Part 301 considerations are moot.

1. I conclude, as a Matter of Law, 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 30304(a) and (b) of Part 303.

2. I conclude, as a Matter of Law, Laurence Sidebottom is the proper applicant in this matter and processing of the application was procedurally correct.

3. I conclude, as a Matter of Law, the proposed activity is not in the public interest, pursuant to Section 30311(2).

4. I conclude, as a Matter of Law, the proposed activity will cause an unacceptable disruption to 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 are no feasible and prudent alternative location to the proposed project.

7. I conclude, as a Matter of Law, there may be a feasible and prudent alternative method to the proposed project.

8. I conclude, as a Matter of Law, the proposed activity is otherwise lawful.

9. I conclude, as a Matter of Law, that there is insufficient evidence to invoke Part 301 jurisdiction, and that the issue is moot.

Based on the above Findings of Fact and Conclusions of Law, it is proposed a Final Order be entered denying Petitioners application for a permit.

Date: May 28, 1998

Richard A. Patterson
Administrative Law Judge

Petition of Mr. and Mrs. Laurence R. Sidebottom

File No. 96-07-0503

Petitioner

1. Application for Permit.
2. Drawing of proposed residence.
3. Letter requesting additional information.
4. Deeds to property and copy of plat.
5. Denial letter.
6. Side elevation of proposed residence.
7. Grant of variance.
8. Permit from Ogemaw County Road Commission.
9. Computer generated plan.
10. Location sketch-proposed wetland fill (revised).
11. Project Review Report January 8, 1997 - Jeff Silagy.
12. Excerpt from Ogemaw County soil survey.
13. Video of subject area.
14. Copy of soil survey with hydric soils highlighted.
15. Photograph.
16. Photograph.
17. Project Review Report February 20, 1997 - Barry Peterman.

Department

A. Resume - Jeffrey J. Silagy.
B. Drawing of proposed fill and seawall.
C. Public Notice.
D. Photograph.
E. Highlighted soil survey.
F. Cards from Public Hearing.
G. Not admitted.
H. Resume - Steven P. Sendek.
I. Letter from Mr. Sendek to Mr. Silagy.