IN RE: WETLANDS PROTECTION ACT APPEAL
OF WILLIAM SMEREKA

Cause No.: 87-14-1032

The Natural Resources Commission, having considered the Proposal for Decision dated 6, 1988, of the Administrative Law Judge, and the files, pleadings, briefs, and oral argument in this matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its totality and is further incorporated into this final decision by reference and is adopted by the Department of Natural Resources as its findings of fact and conclusions of law. (See Proposal for Decision, Cause No. 37-14-1032, dated May 6, 1988, attached hereto.)

Date
David D. Olson, Chairman
Natural Resources Commission

IN RE: WETLAND PROTECTION ACT
APPEAL OF WILLIAM J. SMEREKA Cause No. 87-14-1032

Frederick J. Griffith
Administrative Law Judge

This decision arises from a contested case concerning the application of William Smereka to fill a wetland area located on the Trenton Channel of the Detroit River for purposes of constructing his own personal residence at that location.

The hearing was conducted pursuant to the Gomaere-Anderson Wetland Protection Act, 1979 PA 203, MCL 281.701, et sec.

The professional staff of the Department of Natural Resources (hereafter "Department") is charged with the day-to-day implementation of the Gomaere-Anderson Wetland Protection Act.

Petitioner William Smereka (hereafter "Petitioner") requested the hearing in this cause pursuant to Section 17 of the Wetlands Act.

Petitioner Purchased a riverfront 100 feet by 300 feet lot in June of 1986 for the purpose of building a residential home on it. Petitioner is an experienced general contractor, although not in the business of building residential homes. He intended to Place fill from another project he was doing in the vicinity at the home location to raise the elevation to an appropriate level for residential construction.

Pursuant to this intent, Petitioner filed an application with the Township of Grosse Ile in accordance with a survey and site drawing. A public hearing was held in late October 1986. Petitioner's application to fill was subsequently approved by both the Wayne County Health Department and the Township. This approval was contingent on Petitioner's receiving approval, also, from the Department and the U.S. Corps of Engineers. See Petitioner's Exhibits 3 and 4.

Subsequently, Petitioner filed an application with the Department on December 1, 1986. The history of Petitioner's application, which is the history of this dispute, is recounted in the discussion of Issue 1, below, and is therefore not reiterated at this point.

In administrative proceedings, such as this hearing, constitutional issues are not resolved because such resolution must occur, unless by consent of the parties, in the courts of law. Dation v Ford Motor Company, 314 Mich 152 (19A6).

In these proceedings Petitioner, as the proponent seeking relief from a decision of the Department, bears the burden of proof. Lafayette Market and Sales Company v City of Detroit, 43 Mich App 129, 133 (1972).

Subsequent to the time Petitioner applied for a permit under the Wetland Protection Act, the Parties, in negotiation, exchanged various alternative site construction plans. The first of these was formulated by Petitioner. Subsequently, shortly before this hearing occurred, the Department submitted two such alternatives. The parties have been unable to agree or settle upon any of these alternative plans as a means of resolving the present controversy. Petitioner's application was submitted pursuant to his initial construction plan on the site. It is this application and construction plan which will be considered in this Proposal for Decision.

Petitioner argues that the Department denial of his application on July 20, 1987, is beyond the 90-day limit expressed in MCL 280.708(2). Thus, Petitioner's application must be approved.

In answer to Petitioner's argument, the Department states that the evidence demonstrates that Petitioner did not file a proper wetland permit application. He did not understand he was applying for a wetland permit and did not provide the Department with accurate information as to the volume of fill he intended to place in the wetland. The result was that the Department was not placed on notice and the statutory 90-day period did not commence running. Delay in responding was caused by Petitioner request in asking the Department to reconsider its intention to deny and to consider various alternatives.

While Petitioner raises the above argument in his preheating statement, at P. 7 of his brief, he states that he waives this procedural argument "at this procedural level to allow this Administrative Court to address the substantive issues pertaining to the Wetland" which will also require address before the U.S. Corps of Engineers. The Department would now hold Petitioner to this waiver and thereby avoid his argument. Petitioner's understandable concern is that another substantive proceeding before the Corps of Engineers will be needed if the merits treated in this Wetland Act contested case are not reached by virtue of a resolution on the Procedural Issue. In any event, however, my resolution of a proposal for decision will require address of the full merits of this case because I am not the ultimate decision maker. A "provisional" waiver is a questionable entity. I conclude that the Interests of Justice are served by address of the procedural argument which Petitioner has raised.

The critical facts pertaining to this issue may be divided into two sequential parts and are stated as findings as follows:

The first part commenced with the filing of Petitioner's "application for permit' with the Department on December 1, 1986. The permit form does not on its face clearly require an applicant to identify whether wetlands are affected by the contemplated project. But, the "Drawing Requirements" Included as instructions for the application do require the applicant to designate "fills" and the location of "wetlands." In a letter dated December 9, 1986, a Department employee, Ms. Sally Basler, requested of Petitioner the "total volume of fill" and the "length of riprap." Petitioner responded, by letter of December 15, 1986, identifying the amount of fill needed for the shoreline riprap project, but not the much more substantial amount needed to fill the interior wetlands Thereafter, Petitioner contacted the Department's Lansing office several times by telephone to ascertain the status of the Department's consideration.

The second part of the factual sequence is as follows:

The DNR did not identify the involvement of a wetland until Mr. Zbfciak made an on-site inspection on March 17, 1987. In his "Project review report" he made findings identifying the nature of the wetland and the effect of the Petitioner's project under the criteria of the Wetland Act. The findings of Mr. Zbfciak were generally unfavorable to Petitioner. From this point on the parties understood that the probable intent of the Department would be a denial of Petitioner's application as originally submitted.

On March 23 and May 22, 1987, Petitioner initiated meetings with Department representatives to attempt to resolve their differences. At the second of these meetings, Petitioner submitted an alternative proposal for tentative consideration. See DNR Exhibit 19. This alternative was unacceptable to Mr. Brooks Williamson, the Department's representative. T, 347.

By letter dated July 20, 1987, signed by District Supervisor Barry J. Horney, the Department denied Petitioner's application citing the pertinence of the Michigan Environmental Protection Act, the Inland Lakes and Streams Act, and the Wetland Protection Act.

Section 8 (MCL 281.708) of Gromaere-Anderson Wetland Protection Act states in pertinent part:

"If a hearing is not held, the Department shall approve or disapprove the permit application within 90 days after the completed permit application is filed with the Department. If the Department denies, or requests some modification of the permit application, the Department shall send notice of the dental or modification request, and the reasons for the denial or modifications requested to the applicant. Department approval may include the issuance of a permit containing conditions necessary for compliance with this Act. If the Department does not approve or disapprove the permit application within the time provided by this subsection, the Permit application shall be considered approved, and the Department shall be considered to have made the determinations required by Section 9 . . ." (Emphasis added)

I find that the Department's "application for permit" is ambiguous because it falls to give an applicant sufficient notice of the requirement and significance of wetland" designation. However, the application in this case was sufficiently clear in its requirement that "fill" quantity and locus be designated, to place upon Petitioner the duty to fully and accurately describe the extent and quantity of placement of fill on the property. Petitioner's application was, in this respect, "incomplete' because it identified only the fill incident to the shoreline placement of riprap (129 cubic yards as opposed to the 1,579 cubic yards intended to be used on the entire property - see Defendant's Exhibit 6). Thus, the statutory 90 days did not commence running until the affected "wetland" status of the property was ascertained by Mr. Zbicfak on March 17, 1987. At that point the Department had full notice of the extent of Petitioner's application.

The Department did not formally approve Petitioner's application or request modifications in Petitioner's applications. Petitioner did not expressly waive the statutory requirement of timeliness. After a period of informal discussion following Mr. Zbiclak's visit to the site on March 17, 1987, the Department eventually denied the application on July 20, 1987. A period of 125 days intervened between these events. Under the above-quoted statutory language, the application of Petitioner must be approved for failure of the Department to take timely action. The Department has disclaimed any reliance on the Inland Lakes and Streams Act in these proceedings, which have been centrally concerned with the application of the Gromeere-Anderson Wetland Protection Act; the application of the Environmental Protection Act is disputed in Issue IV below. The submission of the parties here has only addressed the provisions of the Wetland Protection Act. I conclude that by reason of this focus and principles of statutory construction which indicate that the specific provisions of the Wetland Protection Act would govern other more general provisions, approval of Petitioner's application is required under all provisions of law at issue in these Proceedings.

Petitioner argues that the evidence showing the contour of wetland vegetation indicated that there was two types of wetland: emergent wetland along the river; and interior wetland described as a forested wetland. Section 2(g) of the Wetland Act, MCL 281.702(g) describes wetland as that which is characterized by "the presence of water at a frequency and duration sufficient to support and that under normal circumstances does support wetland vegetation . . ." The Act requires the finding that vegetation exists under "normal circumstances." In this case the level of wetland vegetation was caused by higher than normal rainfall and water levels in 1985 and 1986. Furthermore, the drainage condition which arose on this lot was abnormal because it arose from man-made development of the adjoining section of the Island which included the placement of drainage culverts at the location. Furthermore, relocation of the storm drain has been approved by the Wayne County Drain Commission.

The Department answers: it is uncontested that a large portion of the Parcel is wetland. Although Petitioner attempts to isolate the interior of the tract from any impact from the Trenton Channel, the Petitioner's expert was unable to isolate the interior. The evidence demonstrates that much of the interior wetland is forested wetland including large dogwoods and green ash. These plants, at the sizes they exist on the parcel, show that the area has been wetland for an extended period of time. The wetland is not the result of short term changes in rainfall or river elevations. Essentially, the parcel appears to be a natural drain which drains the surrounding areas and, not surprisingly, is therefore the last parcel to be developed. The wetland has been such for many years and even Petitioner's own expert cannot testify that it is due to abnormal conditions.

While the argument on this issue is diverse, I do not find the essential element of the extent of the wetland to be a significantly disputed item on this record. Both parties acknowledge that there was an interior wetland and a shoreline wetlands Mr. Brzinski, Petitioner's expert witness, acknowledged that the wetland occupied, in its totality, about 57 percent of the subject property. T, 179. The precise extent of the wetland was never the critical issue in these proceedings. This is so because construction alternatives as proposed by Petitioner that were considered during the course of Petitioner's application and subsequent negotiation entailed the permanent elimination of a significant portion of the existing wetlands See, e.g., Petitioner's proposed alternative, Petitioner's Exhibit 23; T, 179. While the involvement of drainage from adjacent developed properties was significant to the site, the wetland character of the property was based in substantial part upon its function as a natural low and drain with respect to surrounding properties.

In any event definition of a "wetland" under the Wetland Act is not dependent upon or related to the source of drainage. It is, rather, concerned with the 'presence of water" and its effects. While the drainage ditch adjacent to the property might be moved, and while rainfall might lessen in other years, there was sufficient established wetland vegetation and aquatic life (T, 97, 98, 168, 172) to indicate that a very significant portion of this property constituted shoreline and interior wetland under normal circumstances.'

Section 9 of the Wetlands Act contains criteria for the review of permit applications and mandates that findings be made regarding each criteria.

Section 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 lawfully.

A determination of whether the project is in the public interest is made by applying the criteria discussed in the Wetlands Act. A permit is necessary to engage in the activity requested, and it is otherwise lawful activity.

(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.

Petitioner contends: The failure of the Department representatives to take into account the private need and the diminishment in economic value to both the land owner and the tax base of the Township of Grosse Ile is grossly contrary to the Act. Petitioner's personal economic loss if the property is not buildable is significant. There are further interests in preventing erosion, increasing housing in the area, reducing the amount of insects, cost sharing of sewer and water lines and road construction, and in the aesthetic value of community cohesion, with other lots having been built on surrounding properties.

The Department responds: 'The primary benefit in this situation would be solely that of the owner or the individual that would be inhabiting the home on the site." T, 220.

The public would recognize tax monies as a result of the construction contemplated by Petitioner. Furthermore, there would be some aesthetic value in the construction of a residence at the location in a manner, as contemplated, to fit in with surrounding developed properties. In the broad sense, however, there is not a significant public need for this single family residential construction.; The unique aesthetic setting of the property, and Petitioner's reliance interest in purchasing the property in reliance upon its potential for single family residential development, do outline a private need for the proposed activity. The private need is significantly greater in relative extent than the public need.

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

Petitioner argues: The ownership of property is an inherent and important right. The location of Petitioner's residence along the river at the north end of Grosse Ile is unique. Economically, obtaining other locations to build a residence would be devastating to Petitioner, who would lose the investment he has made in the property, and the additional benefits from this development could not be derived from location at another site.

The Department responds: Sites similar to Petitioner's site have, in other cases, been used simply for waterfront access and/or boat dockage. T, 221.

While the Department cites the fact that the property could be used as a docking site for watercraft, Petitioner presented convincing evidence indicating that Township zoning ordinances would not permit such a docking use on the site. T, 11, 392. The negotiation of the parties with respect to other on-site alternatives for residential construction did not prove fruitful in these proceedings. There are, of course, other available sites for construction of a single family residential home. But there is no conclusive evidence on the record submitted by any party that there is or is not a similar available home site in the Grosse lie vicinity for the construction of Petitioner's home. Petitioner's home might. however, have been constructed on property which did not require the filling of a wetland. See the analysis at pp. 23, 24, infra.

(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.

Petitioner argues: While each of the witnesses agreed that the wetland benefits peculiar to the site will be lost if a single family residential home is constructed, the witnesses did not place a significant value on the impact of completely filling Petitioner's lot. See testimony of Mr. Williamson and Mr. Brzinski, T, 11, 301-308; T, 1, 178-9.

The Department responds: The extent and permanence of the proposed development would be very detrimental on the wetland resource on the site. The activity would be of benefit to the individual property owner in that it would provide a residence. However, the detrimental effects would more than likely outweigh the beneficial effects accrued by the individual. T, 11, 221.

The construction of Petitioner's residence would obviously terminate the existing wetland on the property, thus a significant detrimental effect would be realized. The size of the lot involved is not great (.69 of an acre) and the relative value of the interior wetland on the property is not the equivalent of the emergent wetland which is adjacent to the Trenton Channel. The construction will have some aesthetic value in relation to surrounding properties, but this value is countered by the loss of the aesthetic value of wetland resource.

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

Petitioner argues: The character of the surrounding area, as indicated by plot documents of record and testimony show that the area is platted and zoned for residential use. On this property, the shoreline area, at most 45 feet from the shoreline, f s an emergent wetland, which ends at the point of. a large berm shown on the drawings of the site. At the narrowest point of the berm, the interior wetland is not contiguous to the Detroit River under normal circumstances. This bottleneck is about 15 feet wide. Clearing activities are permitted to be undertaken by a land owner on the premises and are not restricted by the Wetland Act or the EPA. Thus, Petitioner's exercise of his property rights under the respective Acts would legally significantly reduce the respective values and benefits of the emergent and interior wetlands

In response the Department states that when Petitioner's proposal and other proposals in the area are considered, it is evident that permitting such proposals would occasion the total loss of all wetlands along the west shoreline of Grosse Ile. Similar proposals in adjacent areas have been denied by the Department unless modified to leave the wetland area intact. T, 11, 221-223.

The cumulative impact of permitting the wetland in this instance, and others similarly situated, to be eliminated would be significant when viewed within the context of the Wetland Act and, in particular, the statutory purposes stated in Section 3 of the Act.

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

Petitioner argues: While there is no historic or cultural value at issue, the scenic and recreational values of the property will increase with single family residential construction. Insect public population will decline, affording a public health benefit. Neither fish nor wildlife would be marginally impacted. With the restoration of normal) water levels, the interior portion of the lot would be voided of standing water and cease to be of any spawning benefit to fisheries. No person testified to witnessing any animal or aquatic life signs.

The Department responds: Scenic values of the property are subjective, depending on the viewer's prospective. From a natural resource standpoint, the proposal would eliminate the wetland. It would eliminate wetland vegetation, fish and wildlife use, and use of the bottom sediments within the wetland by invertebrate populations. Recreational value is not a main concern because there isn't a direct public use of the property in the recreational sense. The recreational value of the site to the individual might be something along the lines of using the site solely for recreational boat dockage or something of that nature. Public health considerations are not a major concern on this site.

I find that there are fish, wildlife, and invertebrate population and ecological concerns which will attend the elimination of a wetland on this site. The emphasis in this criterion is on the impact of the project on public purposes. I do not find a significant public health value that will be enhanced on the site, although some mosquito population should be eliminated by the proposal offered by Petitioner. Historic and cultural factors do not appear to be significant. Scenic values can be affected positively or negatively depending on one's perspective.

(f) The size of the wetland being considered.

Petitioner argues: The site is only .69 acres. The property has two areas of wetlands, an emergent wetland along the river and an interior wetlands The interior wetland is essentially centered where Petitioner seeks to place his proposed residence. Filling this wetland amounts to just .25 of an acre. Mr. Williamson has indicated that the value of the interior wetland is lower than that of the emergent wetland adjacent to the Detroit River. T, 11, 291. Mr. Brzinski's testimony was substantially similar to that of Mr. Williamson. T, 1, 177-8. If the water level diminished, the area of the interior wetland would diminish and the reduction would occasion a lessening of potential breeding areas for insects, particularly mosquitos.

The Department responds: The wetland occupies approximately 55 to 65 percent of the site. The original proposal of the Petitioner calls for an elimination of nearly all of the wetland on the site. With the higher water levels on the Great Lakes off shore of the site, there is not a lot of wetland that is available for fish and wildlife use, i.e., there is not a lot of property of this type available for such use. T, 11, 227-228.

The property at issue occupies .69 of an acre and the existing wetland occupies approximately 57 percent of the property. The wetland at issue is of a small nature which is not especially significant absent consideration of the cumulative impact which elimination of such wetlands would occasion.

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

Petitioner argues: The Department witnesses did not demonstrate familiarity with the extent of wetlands on Grosse Ile and did not provide an adequate inventory. Testimony did indicate that there is a great extent of wetlands both to the north and south of Petitioner's property. See the marked inventory map, Petitioner's Exhibit 16. These wetlands were described by both Mr. Brzinski and Mr. Zbiciak, T, 1, 169; T, 1, 143-5, 155. A large amount of Palustrine-emergent wetland is also shown on the area map.

The Department responds: There is a considerable amount of wetland in general in the area. Its presence depends to a great degree on the water elevations in the area, which are subject to long term changes. At the present time there is actually very little true emergent wetland in the area and there is not a tremendous amount of this type of wetland left.

Petitioner's Exhibit 16 identifies areas of palustrine-emergent wetland both to the north and south of the property at issue. The wetland area at issue in these proceedings is small in proportion when related to the general surrounding wetland areas.

(h) Proximity to any waterway.

Petitioner contends that all the benefits enumerated by the Legislature can be absorbed by the wetland areas around the property and the surrounding Detroit River area. The surrounding wetlands are not at their capacity or "at their limit" for purposes of performing the benefits indicated by the Department that would be lost by virtue of residential home construction on a site. Mr. Williamson testified that erosion control and watershed-flood control are not a problem; he has not made any type of assessment as to the capacity of the surrounding wetlands T, 11, 304.

The Department responds: The fish and wildlife using the Detroit River, Trenton Channel, require a certain time the type of spawning or breeding habitat. Some species would use this site. The fact that the wetland is closer to a waterway increases the value of the wetlands T, 11, 229.

The subject property lies on the Trenton Channel of the Detroit River. The proximity of the wetlands involved to the river enhances the value of the wetland by providing a breeding locus for animal and plant species which flourish in a riverine environment. These comments particularly pertain to the emergent wetland which is adjacent to the river shoreline. The proposed elevation of the land and elimination of the wetland by filling will have the effect of substantially reducing the riverine wetland environment. The proximity of the river is an attraction for Petitioner's development for aesthetic reasons and would permit the Petitioner to utilize the waterway for recreational purposes.

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

Many comments with respect to this factor are discussed in the analysis of criterion (a), above. That analysis will not be repeated here.

Petitioner argues that there is a great benefit to Petitioner from development of the property in terms of economic value. Furthermore, the tax base of the Township will be enhanced by such development.

The Department agreed that an economic value would be realized to Petitioner and that the Township would obtain the benefit of an increase in tax value from development of the property. It asserts, however, that the development of the property would be at the expense of the wetland resource and whatever economic value was returned to the public. It believed that the overall effect would be a loss to the public and specifically a gain to the individual. T, 11, 230.

In conventional terms, there is no way to assess the economic value of a wetland. No effort was made on the record in these proceedings to assess such a value in dollars. Therefore, the economic valuations which can be recognized are acknowledged by the parties --the proposal will economically benefit Petitioner through the enhanced valuation of the property of which he would be possessor. The Township, also, would benefit from additional tax revenues which would be realized from an enhanced valuation of the property.

Section 9(4) of the Wetland Act requires that Petitioner show "that an unacceptable disruption will not result to the aquatic resources" as a result of Petitioner's undertaking. The statutory language then continues:

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 shows either of the following:

(1) The proposed activity is primarily dependent upon being located in the wetlands

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

Petitioner points out that water recreation is a water-dependent activity. In order for Petitioner to avail himself of this activity on the premises, it is necessary that he be able to fill the wetlands and construct a single family residence.

Turning to the issue of a feasible and prudent alternative, Petitioner urges that a variance in the zoning ordinance to permit the home to be situated "out-of-line" with other houses is unattainable, as testified to by Supervisor Cowan, who indicated the unlikelihood of such a variance being granted. The alternative proposals proposed by the Department fall in several respects. (I will not go into this portion of Petitioner's argument, because I have concluded that this Administrative Law Judge's review will consider only the initial proposal of Petitioner.) The Department evidently is of the opinion that a home is only four walls and a roof for one or more to live in. It is necessary that the area around the house structure be given a safety area of fill so as to render the lot safe and useful. Thus, any alternative which does not substantially fill the interior wetland Is not feasible or prude nt. At the very least Petitioner's Preferred alternative, Exhibit 34, which allows Petitioner to have the size and the location of the home he desires without any mitigation, should be granted.

The Department responds: Residential housing is not wetland dependent. Were it wetland dependent, Petitioner wouldn't have to eliminate the wetland and create upland similar to all the other residential lots in this area. There are feasible and prudent alternatives available, including construction on other parcels or construction Pursuant to Defendant's Exhibits 15 and 16 or variations thereon. Thus, Petitioner fails to comply with Section 9(4)(a) and (b) of the Act.

The residential construction proposal of Petitioner is not wetland dependent for the reason noted by the Department. The project in fact is dependent on eliminating wetlands from the property.

The issue of a feasible and Prudent alternative is more complex. While Petitioner's initial proposal is the subject focus of the contested case hearing and this proposal for decision, the alternatives suggested by Petitioner and the Department are relevant in evaluating this criterion. Local zoning ordinances are an ingredient to be considered in determining whether there are any feasible and prudent alternatives to a proposal. Supervisor Cowan of the Township of Grosse lie testified that it would be unlikely, based on past experience, that a variance which would permit placement of a house "out-of-line could be obtained. He acknowledged the strong interest of a property owner in the set back requirements which were established by the Township and indicated that he was aware of perhaps a few instances in which houses were advanced from the line of their surrounding houses. But he stated that these instances occurred only with respect to older housing which preceded the operation of the Township zoning ordinances. T, 403; 395. Both of the Department's alternatives, Defendant's Exhibits 15 and 16 in these proceedings, set back the locus of the house, requiring out-of-line placement from surrounding properties. I find that Petitioner has established an unlikelihood that a zoning ordinance to permit such a set back could be obtained. Thus, these alternatives are not "feasible' within the statutory language.

The Department next asserts that it is "feasible" and "prudent" for Petitioner to construct his residential home on another tract of property. From Petitioner's standpoint this idea is understandably unacceptable. Petitioner has committed his resources to the purchase of the property at issue, purchasing that property for fair market value. He looked at other property, prior to purchasing the subject tract, and such property was priced considerably higher than the present lot, although it did not require fill as does the subject property. T, 11, 383. Unfortunately for Petitioner, however, the Wetland Act establishes, by law, with the force and effect of public notice given by a law, the public's interest in wetland properties. Petitioner's "right' to place fill on the property has been seriously qualified by the provisions of the Wetland Act and other enactments at issue in these proceedings. The "feasible and prudent alternative language in the Act must be construed to posit an objective standard which takes cognizance both of the statutory purpose and a Petitioner's realistic circumstance. Petitioner's home could have been constructed on a lot which did not require the filling of a wetland. For this reason I conclude that a 'feasible and prudent alternative' does exist in this case.

Petitioner argues: The Wetland Act, MCL 281.701 et seq. supplants the Michigan Environmental Protection Act, MCL 691.1201 et seq. concerning the specific issues of the case at bar. The Department contends that MEPA must be read in pari materia with the Wetland Act, but does not address the effect of doing so.

Assuming the statutes are to be read together, such a reading is only appropriate where it can be done without repugnancy, absurdity or unreasonableness. Where in conflict, the latter statute is controlling. MEPA is a very broad and ambiguous statute. Conversely, the Wetland Act is very detailed and addresses the specific concerns of the Legislature. A precisely drawn, detailed statute Preempts a more general one. Day v Wing County Board of Auditors, 749 F 2d 1205 (1984).

The position of the Department is that MEPA must be read in pari materia with all statutes having possible environmental consequences. State Highway Commission v Vanderkloot, 393 Mich 159 (1974).

In a sense, this issue presents a tempest in a teapot. No specific provision of MEPA has been urged by the Department to be controlling or applicable in this case. The contested case hearing was conducted with some realization that MEPA might be approved. The parties have not urged a specific application of the provisions of MEPA in their briefs, which thoroughly address the very specific provisions of the Wetlands Act. In this case, the primary statute is the Wetlands Act which sets forth the standards for activity within regulated lands. For reasons further detailed in the conclusions of law which follows, I find that the Michigan Environmental Protection Act is a statute in pari materia which may in this instance be read in conjunction with the Wetlands Act, although the specific remedies and procedures set forth in the Wetlands Act are the governing provisions here.

1. Petitioner has applied for a permit to engage in activity that requires a permit under the Goemaere-Anderson Wetland Management and Protection Act.

2. I find that the Department has not timely acted to approve or disapprove the permit application within the 90-day period provided for action under Section 8(2) of the Wetland Act.

Accordingly, the Department is considered to have made the determinations required by Section 9 of the Act.

3. In the event the Commission may disagree with the conclusion reached in paragraph 2, I find as follows:

(a) The question of whether the proposed fill project of Petitioner will cause an "unacceptable disruption of aquatic resources' under Section 9(4) of the Wetland Act is a close issue because, on one hand, the size of the wetland is small and there are abundant wetland resources in the area. On the other hand, the cumulative impact of permitting the filling of riverine lowland properties, such as Petitioner's, is potentially devastating to protected wetland resources as described In Section 3 of the Act.

(b) I find that there were "feasible and prudent alternative locations" for Petitioner's residential home construction other than placement of fill on the subject property and the concomitant elimination of wetland resource. This determination is made pursuant to Sections 9(2)(b) and 9(4) of the Wetland Act.

(c) On the basis of (a) and (b) above, I conclude that the proposed fill project of Petitioner will cause an 'unacceptable disruption of aquatic resources" under Section 9(4) of the Wetland Act.

(d) I find, for reasons stated above at P. 23, that Petitioner's proposal is not "wetland dependent" within the meaning of Section 9(4) of the Wetland Act.

(e) I conclude that the proposed activity will cause destruction of a natural resource, wetlands, which is prohibited by the Environmental Protection Act (1970 PA 127). Recognizing that a statute that deals specifically with the subject is to be given precedence over one of general applicability, this opinion has given primary weight to the Wetlands Act which deals specifically with the subject matter. The legislative determination that the proposed conduct under standards of the Wetlands Act is unacceptable can only lead to the conclusion that the conduct is also unacceptable under the standards of the Michigan Environmental Protection Act.

For reasons set forth in paragraph 2 above, I recommend that the application of Petitioner, as amended , and eventually denied by the Department, be approved.

Dated:
Frederick J. Griffith
Administrative Law Judge

IN RE: WETLAND PROTECTION ACT Cause No. 87-14-1032
APPEAL OF WILLIAM J. SMEREKA

STATE OF MICHIGAN )
:ss

COUNTY OF INGHAM )

Kathy Jo Land, being duly sworn, deposes and says that on the 6th day of May, 1988, she served a copy of Proposal for Decision upon Anthony R. Smereka, 37530 E. Meadowhill, Northville, MI 48167 and Kevin T. Smith, Assistant Attorney General, 401 S. Washington Avenue, Plaza One, Third Floor, Lansing, MI 48913, by depositing the same in a governmental mail receptacle at Lansing, Michigan, enclosed in a sealed envelope, plainly addressed to their respective addresses, with postage thereon fully prepaid.

Subscribed and sworn to before me
this 6th day of, May, 1988
____________________________________
Jody Hisler, Notary Public
Eaton "Acting in Ingham" County, MI
My Commission Expires: 11/4/89