IN RE: Inland Lakes & Streams Act 346
Appeal of James W. Williams
File No. 89-07-70

The Natural Resources Commission, having considered the Proposal for Decision dated November 25, 1991, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the 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. 87-07-70 dated November 25, 1991, attached hereto.)

Date
Larry DeVuyst, Chairman
Natural Resources Commission

IN RE Inland Lakes and Streams Act 346 Appeal
of James W. Williams
Cause No. 89-07-70

Richard A. Patterson
Administrative Law Judge

Petitioner James Williams is the owner of acreage located contiguous to Arrowhead Lake, Logan Township, Ogemaw County, Michigan. The address of the property is 3490 E. Peters Road, Rose City, Michigan. The property contains a home and approximately forty (40) acres of land. Over a period of approximately ten (10) years, Petitioner has substantially cleaned up the site and dredged two (2) ponds on the property within fifty (50) feet of each other and consisting of an area 40 by 200 and 20 by 200 respectively. The general area of the property is indicated on Petitioners Exhibit 4 and the ponds are indicated on a schematic drawing submitted with the application for permit and attached to the public notice issued, which has been entered and marked as Respondents Exhibit A.

On or about April 4, 1989, the Department of Natural Resources received an application for a permit from Petitioner to dredge and create a third pond consisting of a irregular shaped configuration with dimensions of approximately 20 by 400 feet. The avowed purpose of the activity was

"to reclaim a portion of a tag alter marsh for planting of red maples & to establish a more suitable wet land area for water fowl and animals."

In response to the application, the Department issued a Public Notice on April 24, 1989, and Department field staff initially inspected the proposed site on May 16, 1989. Field staff reported that the site is a wetland contiguous to Arrowhead Lake and that there have been other ponds dredged in the general area of the proposed project. Staff further indicated that with the other ponds on site, the remaining shallow water area and wetland should be preserved to maintain habitat diversity. The Department denied the application for permit on June 26, 1989, stating that the proposed project would have an "adverse impact on the natural resources associated with the wetlands" and Arrowhead Lake. In addition, the Department found that the project in not in the public interest, is not wetland dependent, and that "feasible and prudent" alternatives are available.

Field staff reinspected the project site on July 3, 1989, in order to determine if a modified permit could be issued for a pond one third the size of the original project. A modified permit was issued for a pond 20 by 120 feet to a depth of 5 feet. The modified permit further included revised project plans that indicated that no dredging was to extend eastward of the toe of the hill adjacent and immediately north of the permitted pond. Petitioner contested denial of his original application for a 20 by 400 foot pond and has applied for a contested hearing in that regard.

The parties appear to be in agreement of the issues which have been articulated by both parties in their pre-hearing statements which are as follows.

1. Whether the proposed project to dredge a pond and place fill in a wetland contiguous to Arrowhead Lake requires a permit under the Goemaere-Anderson Protection Act, Act 203 of 1979.

2. Whether the proposed project would result in an unacceptable disruption of the aquatic resources.

3. Whether the proposed project is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein in violation of the Michigan Environmental Protection Act, MCL 691.1202, MSA 14.528.

4. Whether it has been shown that there are no feasible and prudent alternatives to the project.

As additional issues, Petitioner has stated the following propositions:

A. Will the creation of "open water" habitat alter the surrounding "tag alter" habitat.

B Does the cleanup of the existing dump sites and the planting of trees benefit the natural resources.

I consider these two assertions as part and parcel of issue two regarding whether or not the project would result in an unacceptable disruption of aquatic resources as well as being part of the issue as to whether it will impair or destroy natural resources and they will be addressed as part of those issues.

A wetland is defined by the Goemaere-Anderson Wetland Protection Act under Section 281.702 (g) as

". . .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 and which is any of the following:" and ". . .contiguous to. . . and inland lake. . ."

There appears to be no argument on the record as to the proposed project being contiguous to Arrowhead Lake but Petitioner denies that the area constitutes a wetland under the statutory definition. He first argues that the wetland was created by a causeway built across the backwater, and is, therefore, artificial. The fact that the wetland may have been artificially created does not take that wetland out of the regulatory process, Citizens Disposal, inc. v Department of Natural Resources, 172 MA 541 (1988).

A second argument is that because the area dries up in the Fall, it should not be considered a wetland. However, by definition, the area does not have to be wet 100% of the time but at a "frequency and duration sufficient to support . . . wetland vegetation or aquatic life."

Petitioner testified that he had seen wildlife consistent with a wetland in the area although he feels that the dredging would increase that consideration, making it an adequate place for loons, blue heron and rainbow trout. Additionally, Petitioner used the terminology "tag alter marsh" in his application for a permit.

By the testimony of Frederick Gotschalk, who testified on behalf of the Department, a proper wetland determination was made pursuant to R 281.924. Mr. Gotschalk by training, education and experience is an expert in wetland determination and has reviewed approximately 500 to 600 sites over his career. He has a Master's Degree in Aquatic Biology from Michigan State University. He looked at this particular site three, possibly four times. He found evidence of water being present, although, it may not have been there at the specific times he visited the property, and testified that the plant life is consistent with a wetland. In addition, he testified that it does have wildlife value in its present state for insects, rabbits, frogs, salamanders, deer, mice, woodcock and possibly grouse.

Although the Petitioner is of the opinion that this is not a wetland based on the previous assertions, he admitted on cross-examination that he does not have any training or experience in that area. Therefore, based upon the findings of Mr. Gotschalk and the Statutory and Regulatory definitions above, I specifically find that this is a regulated wetland and therefore, that a permit for this type of activity must be obtained.

WHETHER THE PROPOSED PROJECT WILL RESULT IN AN UNACCEPTABLE DISRUPTION OF EXISTING RESOURCES, WHETHER A REASONABLE AND PRUDENT ALTERNATIVE EXISTS AND WHETHER IT IS LIKELY TO IMPAIR OR DESTROY NATURAL RESOURCES

The specific criteria outlining this issue are contained in Section 281.709 which provides

Sec. 9. (1) A permit for an activity listed in section 5 shall not be approved unless the department determines that the issuance of a permit is in the public interest, that the permit is necessary to realize the benefits derived from the activity, and that the activity is otherwise lawful.

(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.

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

(c) The extent and permanence of the beneficial or detrimental effects which the proposed activity may have on the public and private used to which the area is suited, including the benefits the wetland provides.

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

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

(f) The size of the wetland being considered.

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

(h) Proximity to any waterway.

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

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

(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.

Petitioner testified that this permit was sought to facilitate his desire to create an open water habitat on his property. There were already two ponds which he has created over a period of years and it is his feeling that a third pond would enhance the area. He admitted that the basic motivation is aesthetics, although he feels that the proposed project would reduce or eliminate trespassing hunters or poachers. In addition, he has cleaned up a number of dump sites on the property and certainly should be commended for that. He further testified that he has seen families of geese and pairs of loons in the area and feels that the proposed project would create a place for them as well as blue heron. He also feels that if the pond was at a depth of five (5) feet that he could raise rainbow trout. Further, the proposed area would eliminate some scrub trees in the tag alter marsh and he intends to plant red maples and other trees in the immediate area, again to enhance the area. There was no open water habitat on his property at the time he purchased it and what exists at this point has been created by him previously.

The Department's position is basically that as the property presently exists, it is a good habitat for wildlife. There are approximately twelve (12) lakes in the immediate vicinity of the property and, therefore, there is a need to maintain the remaining wetlands in that area. As previously stated, Petitioner's property is "contiguous" to Arrowhead Lake and within one (1) to one and one half (1 1/2) miles to Sage Lake which comprises some six hundred (600) acres.

As to Petitioners proposal to plant more trees, the Department has pointed out that more trees could be planted in the area without the dredging as proposed. Additionally, the proposed project would not support rainbow trout or fish life.

Fred Gotschalk's testimony as previously alluded to, stated that the area, as it exists, is supportive of wildlife. Because of the considerable open water area in the immediate area and because there presently exist two (2) ponds on Petitioner's property, the wetlands should be maintained but, as a reasonable alternative, a modified permit was issued for a smaller pond which would give Petitioner some of what he desires as well as maintaining the bulk of the remaining wetland. He also testified that it was important to look at the cumulative impact.

The criteria which the Department must use in reviewing a project of this type has been previously cited above and is contained in Section 281.709. Taking those criteria in order, I will make specific findings as to each.

A. THE RELATIVE EXTENT OF THE PUBLIC AND PRIVATE NEED FOR THE PROPOSED ACTIVITY.

There does not appear to be any public need and, in fact, it would appear that any public interest would probably be compromised, albeit minimally, if the project proceeded as petitioned. As to the private need, while Petitioner has stated that he would desire this basically for aesthetic reasons, because of the existing ponds on the property, there does not appear to be any compelling private need.

B. THE AVAILABILITY OF FEASIBLE AND PRUDENT ALTERNATIVE LOCATIONS AND METHODS TO ACCOMPLISH THE EXPECTED BENEFITS FROM THE ACTIVITY.

The modified permit issued by the Department seems to accomplish a feasible and prudent alternative. It does give Petitioner some of what he desires and will increase the aesthetics of the area while maintaining the integrity of the wetland for the most part.

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.

Based on the testimony before me, it would appear that there would be very little benefit to the private use by dredging a substantial area of the existing wetland. The interest in maintaining the wetland as it presently exists, in light of the extensive open water area in the immediate vicinity outweighs any minimal aesthetic benefit of dredging to the extent proposed by Petitioner. Therefore, the cumulative effect militates against Petitioner's request.

D. THE PROBABLE IMPACT OF EACH PROPOSAL IN RELATION TO THE CUMULATIVE EFFECT CREATED BY OTHER EXISTING AND ANTICIPATED ACTIVITIES IN THE WATERSHED.

There has been no evidence as to any further anticipated activities in the watershed, other than that petitioned for by Mr. Williams. However, it appears, again due to the substantial open water in the area, that any further reduction in wetlands would potentially compromise the integrity of the watershed. Certainly, if Petitioner dredges a substantial amount of the wetland as he proposes, any further compromise would not be indicated.

E. THE PROBABLE IMPACT ON RECOGNIZED HISTORIC, CULTURAL, SCENIC, ECOLOGICAL, OR RECREATIONAL VALUES AND ON THE PUBLIC HEALTH OR FISH OR WILDLIFE.

There does not appear to be any impact one way or the other on historic, cultural, or recreational values. The pond would have very minimal recreational value, if any, and, again, as it is admitted by Petitioner, it is basically for aesthetic (scenic) reasons. It would, in all probability, increase the scenic value of Petitioner's property but, as previously stated, would adversely impact it ecologically. As testified to by Mr. Gotschalk, the proposal would not sustain fish and, in its present state, has wildlife value.

F. THE SIZE OF THE WETLAND BEING CONSIDERED.

G. THE AMOUNT OF REMAINING WETLAND IN THE GENERAL AREA.

H. PROXIMITY TO ANY WATERWAY.

These three considerations may he addressed together. As previously stated, due to the considerable open water in the immediate area, and the remaining wetland and, because the property is contiguous to Arrowhead Lake and in close proximity to Sage Lake compromising some six hundred (600) acres, for the reasons previously stated, any substantial invasion of the wetland would not seem to be beneficial.

I. ECONOMIC VALUE, BOTH PUBLIC AND PRIVATE, OF THE PROPOSED LAND CHANGE TO THE GENERAL AREA.

There was no testimony during the Contested Case Hearing as to the economic value and that would not appear to be applicable to this case except to state that perhaps if the pond were to exist, it might minimally increase the economic value of Petitioner's property. This is, however, pure speculation.

As to the final criteria in Sections 3 and 4, there needs to be no other consideration of other state agencies as there is nothing applicable to that, and as previously stated, a feasible and prudent alternative exists and the proposed activity is not primarily dependent upon being located in a wetland.

For the reasons stated above it is proposed that the Natural Resources Commission uphold the denial of the permit originally requested by Petitioner and impliment the modified permit issued as a feasable and prudent alternative.

Richard A. Patterson
Administrative Law Judge
Dated: November 25, 1991

Petitioners Exhibit 1 Folders of 6 pages of photographs 1, 1A, 1B, 2, 3, 4.
Petitioners Exhibit 2 Brochure describing Nongame Wildlife Fund
Petitioners Exhibit 3 Video tape
Petitioners Exhibit 4 Aerial photography showing land involved

Respondent Exhibit A Public Notice and Application for Permit
Respondent Exhibit B Letter of 6/26/89 denying application
Respondent Exhibit C Modified Permit

Proffered but not admitted:
9 brochures involving trees and forestry and 11 photographs of area