IN RE: Goemaere-Anderson Wetland Protection Act

Appeal of the Permit of Carroll Bos by

Petitioners of Chris Brown, Carol Zimmerman
and Interconnections - File No. 89-09-0393

FINAL DETERMINATION OF NATURAL RESOURCES COMMISSION

The Natural Resources Commission, having considered the Proposal for Decision dated June 24, 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 is 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. 89-09-0393, dated June 24, 1991, attached hereto.)

Date 9/12/91
Raymond Poupore, Acting Chairman
Natural Resources Commission

IN THE MATTERS OF THE PETITIONS
OF CAROL ZIMMERMAN, CHRIS BROWN
AND INTERCONNECTIONS File No. 89-09-0393

Kimberly C. Miles
Administrative Law Judge
Date:

This hearing was conducted pursuant to Goemaere Anderson Wetland Protection Act, 1979 PA 203, as amended, the Michigan Environmental Protection Act, 1970 PA 127, as amended and The Inland Lakes and Streams Act, 1972 PA 346, as amended. The proceeding was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended.

The professional staff of the Department of Natural Resources is charged with the day to day administration of the above entitled acts. Mr. Albert Massey appeared on behalf of the Department. Mr. Terry E. Heiss of Ball, Van Dam & Ross appeared on behalf of the Petitioners and Mr. Gary G. Love of McShane & Bowie and Mr. Peter W. Steketee appeared on behalf of the Respondents.

Subject property is located in Sections 8 and 9 of Spring Lake Township, Ottawa County, Michigan. The site contains 127.3 acres of upland and wetlands. The proposed development is depicted in Exhibit B-54.

On June 28, 1989, Carroll Bos applied to the Department of Natural Resources for a permit under the Goemaere-Anderson Wetlands Protection Act (PA 203 of 1970), and the Inland Lakes and Streams Act (PA 346 of 1972), as amended, for dredging, filling, draining or construction work in Inland Lakes or streams, Great Lakes Bottomlands or Wetland Areas. (Exhibit P-3):

The Department of Natural Resources issued Public Notice of the proposed project on July 17, 1989.

The file was initially assigned to Sue Klco and later to Mr. Peter Kailing. A site review was performed on August 1, 1989.

On August 17, 1989, the Department of Natural Resources issued and later published a notice of public hearing relating to the application. (Exhibit P-18) Said public hearing was conducted on Tuesday, September 19, 1989 in Spring Lake, Michigan. Prior to the Public Hearing, Mr. Bos invited the adjacent property owners to a meeting where the project was explained, and those attending were provided with the opportunity to ask questions. Chris Brown did not attend that meeting. As a result of that meeting, several modifications to the proposed project were made.

Petitioners and others objected to the permit application at the public hearing or by letters filed with the Department. (Exhibits P-19 through P-24)

On December 8, 1989, the Department issued a denial letter. (Exhibit P-5) After the issuance of the denial letter on December 8, 1989, Mr. Bos, via his consultants, negotiated with the Department regarding alternatives. On January 5, 1990 a permit was issued.

On May 3, 1990, Plaintiffs filed a complaint in the Ottawa County Circuit Court seeking equitable relief "until completion of the Administrative Review Process." They sought relief pursuant to the Michigan Environmental Protection Act, Act No. 127 of the Public Acts of 1970. On February 4, 1991, Judge Townsend issued a preliminary injunction. In pertinent part it stated:

We recognize that our function as a circuit court considering issues under the Environmental Protection Act is to decide issues denovo and not simply to review a DNR decision. Nevertheless, we believe remittal of Environmental Protection Act issues to the DNR at this time gives appropriate recognition to the DNR's position as the State agency charged with environmental protection." (February 4, 1991, Opinion, p 4.)

Therefore, the purpose of this Opinion is to issue a proposal for decision on the following items:

1. Was the permit granted Mr. Carroll Bos in compliance with the Wetland Protection Act?

2. Was the permit granted Mr. Carroll Bos in compliance with the Inland Lakes and Streams Act?

3. What is the DNR's position on compliance with the Michigan Environmental Protection Act?

Twenty witnesses appeared on behalf of the parties. The proceedings lasted six days, with four additional depositions. Please see Attachment One for a brief description of the witnesses and their contribution to this proposal for decision.

For clarification purposes I have bolded the pertinent statutory and regulatory provisions.

Subject property, commonly known as Wildwood Springs is depicted in Exhibit B-54. The wetlands are highlighted by dashed lines and dark green color. The light blue areas are within the wetlands for which a permit has been granted to excavate for the construction of ponds. There are two yellow areas for which a permit has been granted in the wetlands for road crossings. The greenish yellow areas depict uplands and the darker shading of blue are locations where mitigation will occur.

The original application requested permission to place 22.3 acres of ponds in the wetlands, .75 acres of fill in wetlands and 170,000 cubic yards of excavation. The approved project provided for 10.8 acres of ponds in wetlands, .43 acres of fill and 103,000 cubic yards of excavation.

It is important to keep in mind that much of the testimony related to the environmental effects of the development as a whole, but focus should be maintained on the fact that under the Inland Lakes and Streams Act and the Wetland Protection Act, the only regulated activities are those within a wetland or that affect an inland lake or stream. Further, analysis pursuant to the Michigan Environmental Protection Act requires that the objecting party establish that the defendant's activities on the environment are likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein. The balancing of these acts will be discussed at the end of this recommended decision.

Mr. Carroll Bos purchased subject property from Anna Kieft on May 11, 1990. (Exhibit P-48) Mr. Bos held an option to purchase for approximately three years. The sale was not closed until the DNR issued permits for the development.

In 1988 Mr. Bos employed Timothy Bureau, of Bureau & Associates (now doing business as Resource Management Group) to perform an environmental assessment of subject property. Mr. Bureau's resource experience began in 1978 when he was employed by the Department of Natural Resources. He administered and assisted in the enforcement of land use protection statutes by the Division of Land and Water Management in 23 counties in Southwest Michigan. Those acts included the Inland Lakes and Streams Act, the Wetland Act, The Submerged Land Act, Sedimentation and others. In 1985 he moved to the Grand Rapids District with basically the same duties. He then retired from the State and went to work for Shoreline Corporation to form an environmental consulting division. In 1987 he formed Bureau and Associates. Their firm currently has in excess of 50 permit issues in progress with the DNR. Most are under the Inland Lakes and Streams Act or the Wetland Protection Act.

Mr. Bureau's primary task was to define the wetland boundaries and advise Mr. Bos regarding any environmental permit requirements. Bureau & Associates worked closely with Exxel Engineering in the development of the site plan. Several plans were developed prior to submittal of the application to the Department. (Testimony of Timothy Bureau and Exhibits P-60 and P-63)

Mr. Bureau determined there were wetlands on subject property and there were inland streams, but no inland lakes. Mr. Bureau's invoices indicate that he was on subject property on September 15, 1988 with 2 staff members for a total of 8 hours. Other site inspections were performed from October 23, 1989 through January 12, 1990, but documentation was unavailable as to the number of visits. (Exhibit P-59) Mr. Bureau estimates he has been on subject property twelve or fifteen times during his employment by Mr. Bos. (Testimony of Timothy Bureau)

As a result of those visits an application for permit was prepared. Mr. Bureau determined that 35% of the property (44.2 acres) was regulated wetland which includes emergent, scrub-shrub, and seasonally-flooded forested wetlands. Development plans were modified several times to develop a site designed around the wetlands. Wetland encroachment in the original application was

0.75 acres. Wetlands proposed to be created encompassed 2.7 acres and the original mitigation ratio was 3.6:1. A series of 7 interconnected ponds covering 22.3 acres were proposed as depicted in Exhibit P-3.

The modified and approved project allowed for 10.8 acres of ponds, .43 acres of fill in wetlands for road crossings and a mitigation ratio of 6.3 to 1, and the elimination of any fill for lots. (Exhibit B-55)

The approved development is expected to contain 78 individual single family detached dwellings, 12 detached single family condominiums, 106 single family attached condominium dwellings and 56,000 square feet of commercial buildings. 59.6 acres of upland will be used for dwellings and 4.4 acres for office space units. Another 12.6 acres will be used for streets. Of the remaining 50.7 acres, 44.2 currently exist as regulated wetlands. (Exhibit P-28, Exhibit P-6 and testimony of David Bos)

A wetland is defined in Section 2 (g) of the Wetland Protection Act 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.

The Wetland Act rules provide for wetland determinations:

(2) When performing wetland determinations, the department shall rely an visible evidence that the normal seasonal frequency and Duration of water is above, at, or near the surface of the area to verify the existence of a wetland. Under normal circumstances, the frequency and duration of water that is necessary to determine an area to be a wetland will be reflected in the vegetation or aquatic life present within the area being considered. A wetland that has not been recently or severely disturbed will contain a predominance, not just an occurrence, of wetland vegetation or aquatic life. Where there is a predominance of wetland vegetation, and no direct visible evidence that water is, or has been, at or above the surface, the department shall use the following characteristics of the sails or substrate to verify the existence of a wetland:

(a) The presence of a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil that favor the growth and regeneration of wetland vegetation.

(b) Physical or chemical characteristics of a soil column which provide evidence of the current and recent degree of saturation or inundation. Characteristics, such as gleying, low chroma mottling, or chemically demonstrated anaerobic conditions, can be utilized to identify the current and recent depth and fluctuation of the water table or inundation.

It is important to distinguish those witnesses who offered testimony regarding the delineation of the wetlands from those who offered testimony on the effect of the proposed project on the wetlands. Four witnesses testified regarding the delineation, Mr. Peter Kailing, Ms. Susan Klco, Mr. Greg Thoen and to some extent Ms. Heidi Hollenbach.

Ms. Susan Klco holds the position of District Supervisor for Water Management, Department of Natural Resources. She was the lead worker responsible for review of the Bos application and she prepared the Project Review Report. (Exhibit P-4) Along with Mr. Peter Kailing she performed a site inspection on August 1, 1989.

During the site inspection Ms. Klco and Mr. Kailing walked in off the north edge of the property from Taft Road and walked through the upland portions of the property. They noted the western wetlands and attempted to locate the agricultural ditches. They viewed the proposed road crossings and then proceeded to the western portion of the property where fill was proposed for lot development. They then drove down Grand Haven Road south of the proposed roadway. Ms. Klco remained in the car, and Mr. Kailing entered the property. Neither Ms. Klco nor Mr. Kailing walked the eastern section of the property where the proposed entrance from Grand Haven Road was to be located. The site inspection did not reveal wetlands whose location was different than that depicted in the original application. It is not uncommon for the department to rely on a consultant's report when one has been prepared. The physical site inspection becomes more of a verification. (Testimony of Ms. Klco)

The environmental assessment performed by Bureau and Associates becomes most relevant, as compared with the testimony of Ms. Hollenbach and Mr. Thoen. An analysis of the soils, hydrology and vegetation were performed by Bureau & Associates in order to determine the location of the wetlands on subject property.

Ms. Klco's notes indicated that the proposed ponds were located in excellent quality wetlands, (Page 3, Handwritten Notes) but the file was forwarded to the Ottawa Soil and Water Conservation District for their opinion. Ms. Heidi Hollenbach was assigned the task of reviewing the application.

Ms. Hollenbach provided testimony regarding the effect of the project on the wetlands which will be referenced later in this opinion. But, as it relates to the delineation of the wetlands, Ms. Hollenbach reviewed the applicant's map, the county soil conservation map, and the national wetland inventory maps. She made an initial site review and then went back with two wetland mappers who were doing the inventory maps for Ottawa County. After comparing the maps, she did not conclude that the applicant's determination was in error. As a matter of fact at T-24, Exhibit P-40, when Ms. Hollenbach was asked, "I assume that you did not make any determination as to whether these areas in controversy were wetlands under the definition contained in the Wetland Protection Act," she responded, " No, I did not."

In May of 1990 Mr. Gregory Thoen visited subject property to determine whether or not the wetland determination made by his agency was accurate. It is important to distinguish what comparisons were being made by Mr. Thoen. Approximately one year prior to offering his deposition for the Ottawa County Circuit Court proceeding, Mr. Thoen was in charge of quality control for the preparation of a wetland inventory for Spring Lake for the purpose of carrying out the swamp buster provisions of the Food Security Act of 1985. As a result of that project, what has been marked as P-53 A and B were prepared. These maps show more wetlands than those delineated by Mr. Bos' application. But it is important to contrast the definition of a wetland utilized for the Federal swamp buster maps. Under that definition in order to "qualify as a wetland, the soils in question had to be what we call hydric which meant that had to be high water table soils. And they had to be either supporting or capable of supporting wetland vegetation, what we call hydrophytic vegetation." (T-11, Exhibit P-53) Mr. Thoen further testified at T-32 (Exhibit P-53) that he did not consider the definition of a wetland under the Wetland Protection Act when he prepared what has been marked as P-53A and B. Specifically, he was asked, "Is it possible that the definition in the Wetland Protection Act is narrower than the definition that you used?" He responded, "Yes, it is. It's possible."

For the foregoing reasons, the rendition of Ms. Hollenbach's and Mr. Thoen's testimony as summarized in Petitioners' Closing Statement is rejected. I find their testimony of limited value in disputing the wetland delineation included in Mr. Bos' application. That delineation was verified by site inspection of Ms. Klco and Mr. Kailing.

Since the original inspection, Ms Klco testified that about one quarter of an acre of wetlands have been discovered on the eastern edge of the property. (Testimony of Susan Klco)

Mr. Bureau did not offer an opinion as to whether this small area at the eastern edge of the property was a wetland prior to fill. He felt if there was a wetland, it was less than 1/10th of an acre. He stated that the south side of where a road cut had been made on the eastern portion was characterized by bright sand. The brighter the soil, the less likely it is that it is a wetland. Alternatively, grey water sand would be indicative of hydric soils. The soils that are now exposed are not grey, but that portion of the property has been disturbed. The north side of the road cut supports wetland vegetation.

It is the finding of the hearing officer that unauthorized fill was placed on approximately 1/4 of an acre on the east end of the property. (identified on B-54 as the entrance of Grand Haven Road) A verbal reprimand was issued regarding the fill at this location.

Other than the fill placed at the eastern edge of the property, it is the finding of the hearing officer that the wetlands were properly delineated in applicant's application.

The standards for denial or approval of a permit application under the Wetland Protection Act are found in Section 9. That section states:

"(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 in otherwise lawful.

The Project Review Report (Exhibit P-4, item 15(c)) revealed that Ms. Klco was uncertain whether the proposed project was in the public interest. In that report she opined that the project as originally proposed would have an adverse potential impact upon wildlife, water quality and aesthetics. She reported that the project was not consistent with similar structures in the area and would have an effect on recreation and navigation. She further checked uncertain as to historic or archeological sites. Further, she did not review the letters of objection received. According to the original project review statement, the applicant had not demonstrated that the proposed project is primarily dependent upon being located in the wetland or that a feasible and prudent alternative does not exist. Further, yes was checked to the question which reads "if a wetland is involved and if the project is permitted, is there likely to be unacceptable disruption to the aquatic resources."

The Project Review Report further stated:

Proposed ponds in excellent quality wetland area. Mixture of EM meadow and SS areas some FO areas. Evidence of standing water apparent most likely in winter through spring growing season, November - June. Ponds proposed to enhance wetlands appears to be disruption. Many wildlife trails into wetland. Heavy usage. Ponds would be a loss of wetland habitat into deep water habitat. The shallow water areas is created in existing wetland - should refer to wildlife to see if they consider project wetland and wildlife enhancement.

The application was referred out for another pond opinion. Ponds are not necessary for the development, but again wetland enhancement was referred out to wildlife.

Primary responsibility for the file was turned over to Mr. Kailing within one week of the site inspection because Ms. Klco left on maternity leave.

Mr. Kailing conducted the public hearing, reviewed the file, recommended issuance of the denial letter with an alternative, and negotiated for the modification of the permit.

The record should reflect that the comments contained in the Project Review Report prepared by Ms. Klco, were prior to the public hearing and were based on the original submittal. The conclusion cannot be drawn that the Report reflected the opinion of the Department after the modifications.

(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 relative extent of the public and private need for the proposed activity is two-fold. The first, which is addressed later in this opinion is whether there is a need for more open water habitat for water fowl.

The second relates to the need for additional housing. Conflicting testimony was offered on this second issue. Mr. Kuizema, a local realtor testified that the average house in the area would cost from $88,000 to $94,000. He said he did not know where the buyers would come from for 100 or more residential units in the above $100,000 price range. Mr. Kuizema has been a realtor for 8 years. He sells residential and commercial properties for a broker. He has never been employed to perform market studies, but provides that service in conjunction with his sales efforts.

Mr. Kuizema offered testimony on available housing in the Spring Lake and Grand Haven area. He testified that in April of 1991 there were 92 properties for sale in the $100,000 - $150,000 range. In 1990 there were 84. In 1991 there were 92 properties in the $150,000 to $225,000 range versus 48 properties in 1990. But upon further examination, Mr. Kuizema admitted that it was possible that in March of 1991 in the area of subject property, namely North of the bridge and west of Spring Lake there were only 15 properties available in the $100,000-$150,000 range. And that there were only 7 properties for sale in the $150,000 to $225,000 range.

Mr. Kuizema testified that the area north of Grand Haven is growing rapidly and that Ottawa County is one of the most rapidly growing counties in the State. The term affordable housing is not necessarily tied to the average priced home, but what a buyer can afford. Those seeking homes now, according to Mr. Kuizema, are looking in the above $100,000 range.

There is a development in the area known as Forest Park. It will add 232 homes, with a mean price of $130,000. This witness merely felt there was an excess supply of homes in that price range. Witness further testified that because the Bos' have their own sales company, that he cannot make a commission off the sale of a Bos home.

Mr. David Bos also testified regarding available housing north of the bridge. He indicated that the development would not have been planned if there was no need for affordable housing in the price range provided by the proposed development. He stated that they have lost sales regularly in the area of the proposed development for lack of product.

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

The conversion of existing wetlands to ponds is not necessary for the development of the property as a residential site. (Testimony of Ms. Klco and Mr. Bureau) The issue then becomes, has the wetland been enhanced by the conversion to ponds? This issue will be examined extensively through the progression of this opinion.

No testimony was offered by Petitioners regarding a feasible alternative for fill placement for road crossings.

(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 wetlands provide.

The creation of ponds will buffer the undisturbed wetlands from the upland residential development. (Testimony of Ms. Klco)

There are currently no fishery resources on subject property as it exists. The creation of ponds will enhance that resource and provide an habitat for ducks, geese or wading birds, (Testimony of Mr. Peter Kailing) and generally increase the habitat diversity on subject property. (Testimony of Mr. Bureau) Much of the existing wetland is monotypical scrub brush and semi-permanent marshes.

Mr. Lawrence Halfen's provided lengthy testimony regarding the environmental effect of the proposed project. His credentials are impressive. P-41 He holds a BS in Biology and Chemistry, a PhD in Biological Chemistry and has conducted a post doctoral fellowship in industrial organic chemistry and Process Biochemistry. He has held academic posts from 1968 through 1984. Additionally, Mr. Halfen has been actively engaged in environmental consulting since 1965. Although Mr. Halfen has been involved with over 100 DNR permitting issues in the last 12 years, only 6 have been wetland cases and approximately 20 to 25 Inland Lakes and Streams cases. Mr. Halfen has been involved with only one case where there was a denial with suggested alternatives, and only an average of two cases per year since 1982 involving the Inland Lakes and Streams Act and the Wetland Protection Act, whereas the Department processes in excess of 6,000 applications per year. It is fair to conclude that Mr. Halfen is not qualified to testify regarding the department's regular practices. For example, Mr. Halfen was unfamiliar with departmental procedures followed to investigate complaints regarding endangered species or potential archeological finds.

Mr. Halfen was asked to assess subject property. He viewed the site from the road, examined documents and other written materials including aerial surveys and pictures. Mr. Halfen reviewed the Public Notice, (Exhibit P-3); the permit (Exhibit P-6), the Project Review Report (Exhibit P-4), the Denial Letter (Exhibit P-5) and the Planned Unit Development (Exhibit P-28) Mr. Halfen could not identify or assess the site of the proposed ponds, because his entire viewing was performed from the road.

Mr. Halfen was hired 9 or 10 days prior to this proceeding. He feels that this development will have a significant adverse effect on subject property. He opined that the proposed roads will increase the run off, and the introduction of lawn fertilization will be toxic for immature vertebrates creating overall oxygen deprivation.

He felt construction of the ponds would change the surface topography from shallow to deep water yielding an overall negative impact on the overall water quality. Further, the existing scrub shrub is a superior filtering mechanism to ponds. He felt that the introduction of oxygen into the water masses via aerators would have a negative impact. Finally, since filtering will be reduced, the discharge of waters off subject property will have a negative impact upon neighboring parcels.

Mr. Halfen felt that tree removal would reduce shading and limit development of aquatic life. He further testified that in driving along the perimeter of the site, he could see approximately 100 yards into the property. He noted various areas of wet woods with leaf litter forested floors that would offer valuable habitat options.

He also felt that increased use of the site will have a profound negative impact with increased road kill of wildlife, especially turtles and increased sedimentation from the run off from the roads, including snow control. Further, introduction of over 200 people will bring domestic animals which will have a negative impact on existing wildlife. Deer, turtles, and certain types of reptiles will be displaced.

Mr. Halfen opined that the projects had been designed to significantly supplant existing shallow shrub scrub with storm water retention while maximizing surface area for residential construction.

I include a summary of Mr. Halfen's testimony regarding the adverse environmental impact to establish that it was considered. But in granting Mr. Halfen's testimony the appropriate probative value, it should be stressed that although Mr. Halfen carries substantial credentials, he was not physically present on the site. His opinion is general as it relates to common environmental effects of development. He has dealt with very few permit requests under the Wetland Protection Act and the Inland Lakes and Streams Act. Additionally, much of his testimony dealt with the adverse effects in upland development, which is only a minor consideration relating to the cumulative aspect of the project under the Inland Lakes and Streams Act and the Wetland Protection Act and needs to be assessed in relation to the Michigan Environmental Protection Act.

Heidi Hollenbach also objected to the proposed project. She felt that subject property is a diverse habitat, both upland and wetland, and is unique in Ottawa County (Exhibit 40, Page 7) She felt the ponds will serve as a sediment basin and being surrounded by homes, will receive a large amount of run off, including fertilizer, chemicals pesticides and oil. As a consequence, they will not serve as a good wildlife habitat. She did not feel the modification addressed any of these issues, but merely minimized them. She objects to the development because by covering all the upland with lots and homes, the balance between the uplands and the wetlands will be destroyed. Ms. Hollenbach was not familiar with the endangered species list and could not testify regarding which species might decrease, other than deer. Her testimony was vague regarding which wetland vegetation would be eliminated.

Except for the opinion regarding the adverse effect of the ponds, much of Ms. Hollenbach's testimony related to her objection to the upland development. This focus will be given the appropriate weight in reaching the recommended findings of fact.

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

A great deal of the testimony dealt with the alteration of a portion of the wetlands from scrub brush to open water habitat. It might be reiterated here that the original application requested conversion of 22.3 acres of existing wetlands into ponds, whereas the approved project allows for 10.8 acres.

Mr. Sadewasser testified that the Department is interested in creating diversity in habitat and there is a particular interest in increasing open water habitat.

An issue to be considered is whether construction of the ponds will alter the existing hydrology of subject parcel.

Mr. Gerald Feenstra is a licensed civil engineer and surveyor, but does not possess a college degree. He has been a licensed civil engineer for 20 years. He assessed the property on June 1, 1990 in order to render an opinion regarding surface water hydrology.

Mr. Feenstra entered the property on Grand Haven Road. He walked westerly along the proposed road. He observed that some excavation had been done at the entrance. (easterly section) He crossed two streams, and then proceeded to cross what is proposed Pond G. He viewed the location of the other proposed ponds. His opinion regarding the streams will be addressed in the portion of this opinion dealing with regulation under the Inland Lakes and Streams Act.

Mr. Feenstra did not feel Pond A would have an impact on subject property, as it will not be connected to Ponds B - G. Ponds B - G will be connected and provide flow for the water which is similar to its existing path When he was asked whether he thought the proposed ponds will increase the rate of run off, he could not opine. He did however feel that the release rate in the ponds would need to be set at an elevation and a quantity discharge similar to the current rate. He added that the discharge rates would be of less significance because the property was so flat.

Mr. Feenstra's conclusion as represented in Petitioners' Closing Statement does not accurately depict the testimony and is hereby rejected. Mr. Feenstra concluded that if the control structures were properly established on the ponds, that there would be no impact on the existing water table.

Testimony was provided regarding Mr. Bos' intention to develop deed restrictions to minimize the developmental effects on the remaining wetlands. Although such items as fertilizer control etc. were discussed, as of yet there are no deed restrictions drafted.

On January 31, 1990, subject property was assessed by Mr. Tom Stadt. Mr. Stadt holds an MS in Forest Physiological Genetics and a BS in Forestry. He has been actively involved in forestry consulting since 1982. Mr. Stadt's complete report can be found at Exhibit P-39. He concluded that subject property is unique because it is in a transition area. This is where the lake effect makes species occur on sites that are not necessarily a site for that type of species and is a line where you get a mixture of northern and southern habitat. He testified that you rarely see a site of this size and diversity contiguous to a populated area. The statement in Petitioners' Closing Statement where it was stated that Mr. Stadt observed Lycopodium is contrary to the testimony. What he actually said was that he noticed a club moss but was unable to identify same. Mr. Stadt did not find any tree species that are endangered or threatened on subject property.

Mark Sellers provided extensive testimony regarding subject property. Mr. Sellers has a degree in Biology, but is not a wetlands expert. His expertise lies in habitat identification, with special emphasis upon the Kirtland Snake and the Copper Belly Water Snake. He testified that in his search for endangered species he has visited over 1500 wetlands sites. Mr. Sellers was unable to identify duck species or vegetation types. His testimony regarding the physical characteristic must therefore be assigned their appropriate proabative weight. Further, he is not an expert on hydrology or geology.

Mr. Sellers did conclude that subject property would be a conducive habitat for a spotted turtle or a Kirtland Snake, but did not view either of these species on the property.

Petitioners' Closing Statement states:

In the opinion of Mr. Sellers, construction of the proposed project would have a negative overall impact on the diverse habitat now existing.

This summary is inconsistent with the testimony presented. When Mr. Sellers was asked what impact the development would have, he responded, that it will have an impact, but that is not to say positively or negatively.

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

A great deal of testimony was presented regarding the historic, cultural and the effect on the wildlife. This analysis can be broken down into three categories:

1.  Cultural. It was suggested that there was an Indian Burial Ground located on subject property;

2.  Effect on endangered species. A complaint was received that an endangered species, namely the Kirtland Snake, had been sighted on subject property and that the property was habituated by Eastern Box Turtle, (a species on the special concern list)

3.  General effect on the wildlife. It should be carefully delineated the effect on wildlife due to upland development, versus alterations within the wetlands.

The impact of the proposed project on the wildlife was left to the wildlife division for determination. The wildlife division opined that excavation and creation of ponds would create more habitat for water fowl.

Mr. Bureau testified that none of the animals currently found on the property will disappear as a result of this project. I do not attach much weight to his opinion regarding the wildlife because there is nothing in the record to indicate that he has expertise to offer such an opinion.

When the Department received notice of a possible archeological find and a complaint regarding endangered species, they investigated and requested that Mr. Bos submit additional information. In response, Bureau and Associates reviewed the letters of objection and contacted Mr. Robert Hess, Wildlife Division Non-Game Program Coordinator, to determine the probability of the existence of Kirtland Snakes on subject property and to determine whether there were any other endangered species. Mr. Hess, via a conversation with Mr. Bureau, reported that observation records of the snakes were confined to two counties in the extreme Southern portion of Michigan. He felt there was little likelihood that the snakes would be located in Ottawa County on subject property. (Exhibit B-56 and Testimony of Mr. Bureau) It was suggested that there had been a sighting of a "Spotted Turtle" on subject property. Neither the Department nor Bureau and Associates could verify same. (Exhibit B-56 and Testimony of Mr. Bureau)

Two witnesses provided testimony regarding the possible "Indian Mound", Dr. William Cremin and Mr. Larry Romanelli. Dr. Cremin has been a Professor of Anthropology at Western Michigan University since 1975. He holds a BS in History, Earth Sciences and an MA in history. He earned his Ph.D in Anthropology in 1978.

Dr. Cremin provided his testimony via deposition. (Exhibit B-73) His opinion is summarized in Exhibit B-58.

Dr. Cremin visited subject property around the 17th of April, 1991 in preparation for this hearing. B-64-68 are photographs of the mound. Dr. Cremin examined the mound and took soil probes around and across the mound. He was looking for evidence of an Indian burial site. He concluded that the mound did not appear to be a burial mound. He saw nothing to suggest basket loading of the earth, which would be likely if this were a mound. There were no human remains in the soil probes nor any evidence of chipped or broken artifacts. In his opinion the mound was created by sand dumping that had been there long enough so that some vegetation had taken hold on the mound. He estimated, although he is not an expert, that the tree on the mound was approximately 30 years old. Petitioners offered no evidence of the age of the tree which purportedly was marking the burial site.

Mr. Larry Romanelli also visited the site to examine the mound. Mr. Romanelli considers himself an expert on Indian Burial Grounds due to his own Indian heritage. He testified that his father was a Chief and that he had been trained by him and other elders on identification of Indian Burial Grounds. He has no formal archeological training, but has spent about 150 hours researching his heritage. Mr. Romanelli visited the site with Ms. Brown. He located the site in relation to the Grand River and Lake Michigan. He examined the foliage, the ground, the trees and the wind in relation to the lake and the sun. He noted there was a "marker tree". He had viewed another burial ground in Western Michigan which had a similar tree. According to Mr. Romanelli, a tree is marked by bending the twig to signify a burial ground. His testimony at this hearing regarding the marker tree was inconsistent with the testimony he presented on May 29, 1990 for the Ottawa County Circuit Court proceeding. There, when he was asked if he had seen a marker tree, he responded, no.

When Mr. Romanelli was asked how he reached his opinion that the mound was an Indian Burial Ground, he stated that in addition to the aforementioned observations, that the "Great Spirit" had told him that it was a burial ground. He stated that the "Great Spirit" was equivalent to our God. He further indicated that he gets a lot of guidance from the "Great Spirit" and that he goes to his parents and grandparents and the Spirit seeking guidance.

Based on the testimony presented, the Petitioners failed to establish that the mound was an Indian Burial Ground or that there exists any other items of archeological significance on subject property.

Extensive testimony was offered regarding the wildlife on subject property. Chris Brown, Carol Hodgkin, Mark Sellers and Timothy Bureau provided specific testimony regarding the wildlife and Dr. Lawrence Halfen and Heidi Hollenbach testified regarding the habitat.

In response to the Notice of Public Hearing (Exhibit P-18), the Department received various letters of objection. (Exhibits P-19-P-24) Most of the content of those letters addressed the overall detrimental effect of any development on subject property. Exhibits P-19, and P-24, provide a long list of species which the authors indicate inhabit the property. Testimony at the hearing, however, focused on the Eastern Box Turtle and the Kirtland Snake, with a small amount of testimony regarding the other species.

Chris Brown, Petitioner, lives adjacent to subject property. (near lots 13 and 14, Exhibit B-54) She testified that in the spring of 1988 she sighted a Kirtland Snake due west of her property on subject property. She described the snake as grayish brown along the back with reddish or pinkish belly. She indicated that the snake had a line of dark spots that ran down the sides at the top of the reddish color. She felt the snake was so unusual, that she said she spent a great deal of time searching books to identify it. She confirmed her testimony by identifying the snake as the one depicted on page 12, Exhibit P-17. Ms. Brown apparently did not learn that the Kirtland Snake was an endangered species until she read an article authored by Dr. Harding. (Exhibit P-51) She contacted Dr. Harding to gather more information about what she felt was a sighting of a Kirtland Snake. He referred Ms. Brown to Mr. Sellers, who Dr. Harding recommended as an expert on the Kirtland Snake and their habitat. Contact was made with Mr. Sellers on the day of the public hearing. Mr. Sellers was willing to visit the property, but indicated that he would be unable to do so until the following spring. In the meantime, the permit was issued, and Petitioners filed suit seeking an injunction in the Ottawa County Circuit Court. Mr. Sellers visited the site prior to the Circuit Court proceeding. His primary purpose for visiting the site was to assess the habitat and offer an opinion as to whether that habitat would be conducive for the Kirtland Snake. He concluded that the site would be conducive for the Kirtland Snake, but did not see any evidence of its existence during his visit.

When Ms. Brown was questioned at the hearing regarding her sighting of the Kirtland Snake, she indicated that she had only seen a Kirtland Snake one time on the property. She said that when she saw the snake that it was five or six feet away. In addition to the attributes already described, she said the snake was 2 1/2 to 3 feet long. She further stated that when she approached the snake it coiled up as if it were going to attack. She picked it up, looked at it and then set it down. Her description of how the snake coiled up contradicts the testimony of Mr. Sellers regarding the natural reaction of a Kirtland Snake when approached and the description contained in the Audubon Society Nature Guide (Exhibit B-52) both of which state that the Kirtland Snake dramatically flattens its body when frightened. Further, the snake is described as being anywhere from 14 to 24 1/2 inches in length. Although on cross examination Ms. Brown said she was not very good with assessing lengths, it is clear her description was inaccurate.

Further, when Ms. Brown was questioned regarding other more common snakes, she was not only unable to describe them, but was unable to provide any accurate identification. It seems questionable she would have such an accurate memory of the Kirtland Snake. When asked whether it was true that she knew a sighting of a Kirtland Snake would improve her chances in Circuit Court proceeding, she responded, "That she knew finding the snake would cause the State to take a more active role in protecting the species on the endangered list."

It is my finding that insufficient evidence was produced to conclude that a Kirtland Snake was located on subject property.

Ms. Brown offered testimony regarding a sighting of an Eastern Box Turtle on subject property along with her neighbor Carol Hodgkin. Carol is an art teacher and her property is located contiguous to subject property. Ms. Hodgkin has viewed the property for over 10 years. She testified as to observing various species but the only special concern species would be the Eastern Box Turtle. During the Spring of 1990 she saw an Eastern Box Turtle proceeding from her property onto subject property. She put a box over the turtle and Chris Brown took pictures. (Exhibit P-33 and P-34) There is no doubt these are pictures of an Eastern Box Turtle. The Eastern Box Turtle is not on the endangered species list, (Exhibit P-26), but is considered declining in population. There was no evidence to refute the fact that the turtle was on the property. However, since it was going from Ms. Hodgkin's property to subject property, it is apparent that development is not disastrous for this species.

Ms. Brown's interest in wildlife is a hobby. She showed the hearing officer the books she normally used to identify the various species. Those publications included, the Audubon Society Nature Guide entitled Wetlands, The Field Guide to North American Insects and Spiders, the Field Guide to North American Birds, the Pocket Guide for Familiar Birds, The Coat Pocket Bird Book, and the Kitchen Table Bird Book. Although a subjective observation, most of these books looked new. None of the publications had any markings in them as if they had been used for identification, and as a matter of fact, most of them looked that the bindings had not been broken.

As a whole, Ms. Brown presented insufficient evidence to support the finding that she had viewed all of the species referenced in her letter of August 7, 1989.

(f) The size of the wetland being considered.

Please see previous description.

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

There are other wetlands surrounding subject property. (Testimony of Timothy Bureau)

(h) Proximity to any waterway.

There was no testimony regarding the proximity of subject property to another waterway other than regarding the natural flow of the surface water and the fact that subject property contained no inland lakes. Mr. Romanelli did reference the relation to the lake and the Grand River, but detailed location was not provided.

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

This issue was addressed under section Subsection (c).

(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 other findings by any 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.

There are currently limited aquatic resources on subject property. The hydrological effect of the proposed development was thoroughly analyzed. The approved permit provides for limited fill for road crossings, diversion of streams into a series of seven interconnected ponds and the creation of 10.8 acres of open water ponds in an existing scrub brush wetland. The real issue is whether the Department gave adequate review before granting a permit authorizing the conversion of 10.8 acres from one type of wetland to another and whether the Department has shown that an unacceptable disruption to the aquatic resources will not occur.

The record supports the permit to convert particularly in view of the mitigation which will occur.

Rule 5 sets out the rules on mitigation. It states:

(1) As authorized by section 10 (2) of the act, the department may impose conditions on a permit for a use or development if the conditions are designed to remove an impairment to the wetland benefits, to mitigate the impact of a discharge of fill material, or otherwise improve the water quality.

(2) The department shall consider a mitigation plan if submitted by the applicant and may incorporate the mitigation actions as permit conditions for the improvement of the existing wetland resources or the creation of a new wetland resource to offset wetland resource losses resulting from the proposed project. If agreed to by the applicant, financial assurances may be required to ensure that mitigation is accomplished as specified by the permit conditions. The department shall, when requested by the applicant, meet with the applicant to review the applicant's mitigation plan.

(3) In developing conditions to mitigate impacts, the department shall consider mitigation to apply only to unavoidable impacts that are otherwise permittable utilizing the criteria under sections 3 and 9 of the act. Mitigation shall not be considered when it is feasible and prudent to avoid impacts or when the impacts would be otherwise prohibited under the act.

(4) When considering mitigation proposals, the department shall make all of the following determinations:

(a)  That all feasible and prudent efforts have been made to avoid the loss of wetland resource values.

(b)  That all practical means have been considered to minimize impacts.

(c)  That it is practical to replace the wetland resource values which will be unavoidably impacted.

(5) If the department determines that it is practical to replace the wetland resource values which will be unavoidably impacted, the department shall consider all of the following criteria when reviewing an applicant's mitigation proposal:

(a)  Mitigation shall be provided on-site where practical and beneficial to the wetland resources.

But then the letter in the very next paragraph stated:

Based on the foregoing findings, a permit cannot be granted to construct the project as proposed and your application is hereby denied. The Department would give consideration to the placement of 4,900 cubic yards of fill material in wetlands for proposed road crossings, including appropriate mitigation compensation, and construction of ponds in a configuration similar to the attached drawing dated December 6, 1989. An adequate demonstrated need for the 600 cubic yards of fill for lot expansion has not been provided, therefore, a permit for this portion of the project cannot be considered.

The Department denied the permit, but offered an alternative. It is extremely common for the Department to deny an application but offer alternatives that would be considered without requiring applicant to submit a new application. This is allowable as long as the alternative proposed has less of an impact than the original application. (Testimony of Mr. Harrington, Ms. Klco, Mr. Kailing and Mr. Bureau)

The Department gave full consideration to the proposed permit application which, as approved, provides for a mitigation ratio of 6.3 to 1.

Section 7, the Act provides:

The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights. In passing upon an application the department shall consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry. The department shall not grant a permit if the proposed project or structure will unlawfully impair or destroy any of the waters or other natural resources of the state. This act shall not modify the rights and responsibilities of any riparian owner to the use of his/her riparian water.

A permit shall specify that a project completed in accordance with this act shall not cause unlawful pollution as defined by Act No. 245 of the Public Acts of 1919, as amended.

Rule 4 of the Inland Lakes and Streams Act provides further criteria for the issuance of a permit. In pertinent part it reads:

In each application for a permit, all existing and potential adverse environmental effects shall be determined and a permit shall not be issued unless the department determines all of the following:

(a) That the adverse effects to the environment and the public trust are minimal and will be mitigated to the extent possible.

(b) That the resource effected is not a rare resource.

(c) That the public interest in the proposed development is greater than the public interest in the unavoidable degradation of the resource.

(d) That no feasible and prudent alternative is available.

The Inland Lakes and Streams Act rules further define public trust to mean:

(i) The paramount right of the public to navigate and fish in all inland lakes and streams which are navigable.

(ii) The perpetual duty of the state to preserve and protect the public's right to so navigate and fish.

(iii) The paramount concern of the public in the protection of the air, water, and other natural resources of this state against pollution, impairment, and destruction.

(iv) The duty of the state to protect the air, water, and other natural resources of this state against pollution, impairment, or destruction.

Since there are no navigable waters on subject property, only subparagraphs (iii) and (iv) are applicable.

There are inland streams on the subject property, but there was no testimony to suggest that any of the streams were or are navigable. There are no inland lakes on subject property.

The water flow on subject property proceeds generally southeast towards an outlet at proposed Pond G. The flow is in broad shallow areas, meandering with many small pot areas. There are a series of ditches which bring the water into what is delineated as proposed Pond G. The proposed development will not change the direction of the water flow, but will possibly detour it. (Testimony of Mr. Feenstra)

Testimony from all parties confirms that the "streams" that exist on subject property are the result of man made ditches constructed by the previous owner for farming purposes. There was also no dispute that if the ditches met the definition under the Inland Lakes and Streams Act, that they are regulated streams. There was some dispute regarding the number and location of the streams.

All testimony supported the fact that the "ditch" running from Pond C to D is a stream. It drains the wetland that runs southeast. Additionally, there is also one running through Pond G. (Testimony of Mr. Bureau and Mr. Feenstra) Mr. Bureau opined however, that the ditch running southeasterly from Lots 26 and 27 to lots 63 and 65 is not a "regulated stream." The function of that ditch was to drain the wetland to the west of Pond B. In contrast, Mr. Feenstra testified that this ditch was a stream. But, he testified that if a culvert were installed under the roadway, this would preserve the flow of water. Mr. Bureau testified that the omission of a culvert was intentional because the natural flow to the southeast was going to be preserved by draining through an outlet to the south end of Pond B.

At proposed Pond E there is a small ditch that was not flowing.

It seems appropriate to repeat, at this point of the opinion, the portion of Mr. Feenstra's testimony where he opined that since all seven ponds would be interconnected, that if the control devices are appropriately designed and placed on the ponds, that the existing hydrology would be preserved. The testimony was undisputed that the man made ditches, which have become regulated streams, serve the function of draining the wetlands.

It is therefore my finding that the series of interconnected ponds will protect the water, and other natural resources against pollution, impairment and destruction. Further, the permit granted under the Inland Lakes and Streams Act was appropriately granted and took into consideration the adverse effects to the environment. The effect on the public trust will be minimal and has been mitigated to the extent possible.

Testimony was presented regarding whether the permit application received proper review. The Department presented Mr. Hal Harrington and Steven Sadewasser to testify. Mr. Hal Harrington is currently the Unit Chief of the Great Lakes Submerged Land Unit. His current duties include dealing with policy and procedures for all work performed at the land/water interface that feed into the Great Lakes waters. Mr. Steven Sadewasser is a Statewide Wetland Resource Specialist.

Mr. Harrington provided the following description of standard procedures for processing a permit application under the Wetland Protection Act and the Inland Lakes and Streams Act.

An application is received by a consolidated unit. File reviewers make a determination of which acts apply. The application is public noticed and routed to the appropriate sections that may have interest in a review. The file is also routed to field offices for site inspections. If a public hearing is requested, the consolidation unit prepares the necessary notices.

A computer check is performed in Lansing to determine which sections of the DNR may have an interest in the project request. Not all agencies or departments to whom the application is forwarded respond.

When comments are received through the hearing process, they are cataloged and a determination is made as to whether further action is necessary. Those comments become part of the decisional process.

The persons who submitted comments would most likely not be notified regarding the action taken. The DNR processes 6 to 7 thousand application per year. This reduces the ability to make individual responses on each concern.

If a file indicated the possibility of threatened or endangered species, it would be routed to the "natural features department." They would review and either call the office or present a written report.

The permit request is either granted or denied. But when denied, if the department sees an alternative, they will so note in the denial letter.

Mr. Harrington testified that when a denial contains a proposed alternative they do not reissue a notice for a second public hearing. A second application and therefore a second public hearing would be necessary if the proposed alternative provided a larger project than the original request.

A lesser alternative is considered a minor modification. There is no definition in the rules of what is deemed a minor modification.

Mr. Harrington does not perform site inspections. He reviews the file for content.

When the issue was raised regarding endangered species, the file was sent to Mr. Weiss who reported he did not feel there was an impact.

Mr. Jeffrey King was employed by the Department and located in Plainwell, Michigan. Mr. King attended the public hearing, along with Mr. Kailing and signed the original denial letter. (Exhibit P-5) Mr. Kailing testified that he prepared the denial letter. The permit itself is signed by Mr. Kailing for Ms. Klco. Within a two week period of issuing the permit, Mr. King left his state position and accepted employment with Bureau & Associates in January of 1990.

While the permit was being considered, there was testimony by Mr. Bureau that when a problem developed with obtaining a permit according to the alternative listed in the denial letter, that he said he would take it up with Mr. King; Mr. Bureau could not remember if he did so. Since an issue was raised regarding possible impropriety on the part of Mr. King, the Department assigned Mr. Steven Sadewasser the task of investigating the allegation. He spoke with Ms. Klco, Mr. Kailing and Mr. King. He concluded that Mr. Kailing had primary responsibility for the file and that Mr. King's involvement in the review process had been minimal. (Testimony of Mr. Bureau and Mr. Sadewasser) Mr. Hal Harrington additionally opined that the file had proceeded according to standard procedures. Neither Mr. Harrington nor Mr. Sadewasser performed any substantive review of the project.

The billings of Bureau and Associates (Exhibit P-59) reflect that Mr. King participated in some manner with subject property after leaving the employ of the Department. The invoice only lists him as having participated, without delineated what function he performed. Mr. Bureau could not specifically remember, but thought his opinion had been sought regarding the threatened legal action and possible appeal of the Department's issuance of the permit. Mr. Harrington testified that as long as no improprieties were discovered while Mr. King was employed by the State, that it would not be improper for him to work on subject property's file after departing. (Testimony of Hal Harrington)

Chris Brown testified that she telephoned the Department on a regular basis asking to review the file, but that it was not made available to her. There is no documentation of a formal request, and conflicting testimony was offered. Mr. Harrington testified that the file was probably being used by staff. Mr. Kailing testified that he knew Ms. Brown had contacted the Department, but that he had not spoken with her personally. The testimony did not support any impropriety or deception regarding the location of the file.

It is my finding that Petitioners did not present sufficient evidence of any impropriety on the part of the Department.

I. Burden of Proof

The burden is on the complaining party to show that the act or decision of the administrative body was illegal or unauthorized and failed to accord with the essential requirements of law controlling the particular matter being reviewed. Jones v. DeVries, 326 Mich. 126 (1950).

It is the burden of the Petitioners to establish that the permit was not properly issued under the Michigan Environmental Protection Act, The Wetland Protection Act and the Inland Lakes and Streams Act.

II. The Ottawa County Circuit Court Preliminary Injunction

The Plaintiffs limited the relief they sought in the suit to "injunctive relief to preserve the status quo until all legal and factual issues could be fully and completely reviewed by an independent agency or court."

According to information supplied in the written closing statement of Carroll Bos, (Page 43),

At the very commencement of the preliminary injunction hearing in this case the plaintiffs admitted that they were before the court only under the Michigan Environmental Protection Act. They stipulated accordingly to the dismissal of the Inland Lakes and Streams Act and Wetland Protection Act counts.

When those two counts were dismissed by stipulation, it meant that the Plaintiffs were entitled to a preliminary injunction only to the extent that it was authorized by the Michigan Environmental Protection Act.

This should be particularly stressed given the language of the Ottawa County Circuit Court remand order, which for emphasis I will repeat,

We recognize that our function as a circuit court considering issues under the Environmental Protection Act is to decide issues de novo and not simply to review a DNR decision. Nevertheless, we believe remittal of Environmental Protection Act issues to the DNR at this time gives appropriate recognition to the DNR's position as the State agency charged with environmental protection." (February 4, 1991, opinion, p. 4.)

The Closing Statement on behalf of Mr. Carroll Bos discussed the propriety of the issuance of the Preliminary Injunction. It is not appropriate for the DNR to consider that issue. The function of this opinion is to carry out the charge articulated in the February 4, 1991 Opinion, namely to give recognition to the DNR's position as the State agency charged with environmental protection. The record should therefore reflect that no weight positive or negative was afforded to the fact that a portion of the hearing regarding the Michigan Environmental Protection Act was the result of a Circuit Court remand.

III. The relationship of the Inland Lakes and Streams Act, the Wetland Protection Act and the Michigan Environmental Protection Act.

This case is governed by all three statutes. The Michigan Court of Appeals has ruled in Citizens Disposal Inc. v. DNR, 172 Mich.App. (1988) that when two statutes regulate the same subject matter, a statute that deals specifically with the subject is to be given precedence over the one of general applicability.

The Michigan Environmental Protection Act imposes upon the Plaintiff the burden of going forward and the ultimate burden of proof on the allegations of environmental degradation. Specifically Section 3(l) of MEPA reads:

When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act.

Given the fact that the standards in both the Inland Lakes and Streams Act and the Wetland Protection Act use identical language and are more specific, it would take a strong showing to establish that an activity which was properly permittable under those Acts violates the more general Michigan Environmental Protection Act.

IV. What are the standards under the Michigan Environmental Protection Act?

The summary presented in Mr. Carroll Bos' Closing Argument accurately describes the standards. For that reason, I am reproducing that portion of the closing argument commencing at Page 49 herein:

In Kimberly Hills Neighborhood association v. Dion, 114 Mich App 495 (1982), The Michigan Court of Appeals dealt with the issue of a MEPA plaintiff's prima facie showing under the act. The case involved an 18- acre site in southeast Ann Arbor on which the defendants planned to construct single-family homes. The property had been used for farming until the 1920's, but at the time of the suit it was covered with second growth trees and brush. The plaintiffs tried to stop construction on the northerly 9.2 acres of the defendant's land under the Michigan Environmental Protection Act. The trial court entered a permanent injunction requiring the defendant to set aside at least four acres in the northwesterly portion of the property as a nature preserve and as a mating and breeding ground for pheasants in order to protect natural resources. The defendants were permanently enjoined from filling in, building on, disturbing, polluting, impairing, or destroying a seasonal pond on the premises. They were also permanently enjoined from building upon or changing the natural characteristic of a specific area of the premises in the vicinity of the pond. They were ordered to set aside a corridor about 20 feet wide along the entire western border of the property in order to provide an access way for animal life. Furthermore, they were ordered to provide two corridors approximately 40 feet wide for use by wildlife in an east/west direction with one such corridor leading to the nature preserve. According to the opinion, the land included a "diverse wetland, containing an intermittent pond providing a wildlife habitat for a number of species, some of which might not continue to exist on the property if the land were developed." Ibid., p.501. However, there was apparently "no biological uniqueness to the habitat existing on the property."Ibid.

The Court of Appeals held that a "dual inquiry" must be conducted by the trial court in cases of this kind. The first question is whether a natural resource is involved and the second is whether the impact of the defendant's activities on the environment rises to the level of impairment to justify the trial court's injunction. Ibid., p. 503. This analysis is required under West Michigan Environmental Action Council v. Natural Resources Commission, 405 Mich. 741 (1979), cert den. 444 U.S. 941 (1980), where, on page 760 the court held,

We recognize that virtually all human activities can be found to adversely impact natural resources in some way or other. The real question before us is when does such impact rise to the level of impairment or destruction?

The Court of Appeals agreed with the trial court that the case did involve natural resources, but it disagreed that the defendants' conduct would rise to the level of impairment or destruction. The court distinguished West Michigan Environmental Action Council, supra, in which a herd of elk, a unique and rare resource in Michigan, would have been seriously and lastingly damaged by the drilling of oil wells. The court also distinguished Ray v. Mason County Drain Commissioner, 393 Mich. 294 (1975), a case involving "a biologically unique "quaking forest", swamps and potholes, and scattered, wooded areas which serve as a refuge for a wide variety of wildlife." Ibid., p. 506.

Proper application of the impairment standard as it pertains to the preservation of animal and plant life does not limit conservation only to resources that are 'biologically unique' or 'endangered'; a statewide perspective is necessary. A focus on narrow local problems in contrary to the intent of the Legislature to carry out its constitutional duty under Const. 1963, Art. IV, Section 52 (footnote omitted). For example, in dealing with wildlife, adverse impact must be evaluated, not in the context of individual and ecological communities ... A close reading... (of West Michigan Environmental Action Council) shows that the Court balanced the rarity of the resources involved against the magnitude of the harm likely to result. Since elk are extremely rare in Michigan, destruction of a relatively small number of elk will amount to an impairment. Destruction of the same number of a more common species would not necessarily amount to an impairment. The magnitude of the harm likely to result form defendants' actions depends upon the characteristics of the resources involved, the nature of the defendants' actions, and the type of property involved." Ibid., pp. 507 and 508.)

Based on the evidence presented, the court found that the impact shown by the plaintiffs did not amount to the requisite statutory impairment.

The trial court specifically found there was nothing unique in the way of clearings, growth, or species of animals on the 9.2 acres involved. If the property is developed, the intermittent pond may disappear, but there was no evidence that the disappearance of the pond is likely to have a significant effect on the drainage system as a whole, no evidence that the frogs or other amphibians who make the pond their home are particularly rare, and no evidence that disappearance of the pond is likely to have a significant impact on the population of those amphibians. Several old trees which provide nests for hawks and other birds will be cut down, but there was no evidence that those birds do not have ample nesting areas elsewhere. Similarly, although the brush areas on the property provide cover for rabbits, opossum, and other small animals, and nesting areas for birds and insects, there was no showing that other suitable habitats are not available. Because the small animals, birds, and insects involved are all common, the disappearance of four acres of habitat will not have a significant impact on their population in Michigan or even in the Ann Arbor area. The four acres involved provided a poor habitat for one male pheasant, as each male pheasant requires 3 to 23 acres for territory. That this single male pheasant and his associated females will have to move elsewhere hardly amounts to an impairment of the Michigan pheasant population. In sum, it has not been shown, from a statewide perspective, that development will actually interfere with maintenance of diversified natural areas for wildlife." (Ibid., pp. 508 and 509.)

It is my finding that the Petitioners in this proceeding have failed to establish that the impact of the Respondent Bos' activities rose (or rises) to the level of environmental pollution, impairment or destruction.

1. The permit granted Mr. Carroll Bos was in compliance with the Wetland Protection Act.

2. The permit granted Mr. Carroll Bos was in compliance with the Inland Lakes and Streams Act.

3. Petitioners have failed to establish environmental pollution, impairment or destruction under The Michigan Environmental Protection Act.

P 1 Ottawa County Map
P 2 Subdivision Map
P 3 Public Notice
P 4 Project Review Form
P 5 December 8, 1989 Letter to Carol Bos
P 6 Modified Permit
P 7 - 10 Photographs
P 11 - 15 Photographs
P 17 Michigan Snakes Books
P 18 Affidavit of Publication
P 19 Letter of Complaint/Protest
P 20 - 24 Letters submitted in protest of the project
P 26 Letter of Endangered Species
P 27 Preliminary Injunction
P 28 Spring Lake Township Application for Planned Unit Development
P 29 Circuit Court Opinion
P 30 Letter to Peter Kailing from Timothy Bureau dated January 4, 1989
P 31 Photographs
P 32 Photographs
P 33 - 35 Individual Photographs
P 36 - 37 Aerial Maps
P 38 Credentials of Thomas Stadt
P 40 Deposition, Heidi Hollenbach
P 41 Statement of Qualification, Lawrence Halfen
P 42 Individual Photograph
P 48 Warranty Deed
P 49 Letter from Anna Kieft
P 50 Individual Photograph
P 51 Newspaper Article regarding the Kirkland Snake
P 53 Deposition, Francis Thoen
P 59 Invoices
P 60 Letter from Timothy Bureau dated October 9, 1988
P 63 Subdivision Map
P 70 Photocopy of an Aerial Topographic Survey dated 04/15/85
P 76 Photographs
P 77 Michigan Map
P 78 Climate Data
B 43 - 47 Individual Photographs
B 52 Book on Wetlands
B 54 3' x 2' Coreboard Map of Wildwood Springs dated 01/17/90
B 55 Comparison of Permit Denied to Permit Granted
B 56 Letter to Pete Kailing from William Rowell
B 57 Letter from William Rowell to Peter Kailing dated November 21, 1989
B 58 Cremin Report
B 64 - 68 Individual Photographs
B 73 Deposition of William Cremin
B 74 Climatological Data
B 75 Typical site on plat
B 79 Deposition/Sellers