Joint Appendix — Rapanos v. United States
Supreme Court brief2005
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09/25/2002
02/28/2003
03/14/2003
03/27/2003
21
10a
(pp) (Entered: 09/19/2002)
TRANSCRIPT taken on 9/19/02
of motion hearing (kb) (Entered:
09/27/2002)
REPORT and recommendation
by Magistrate Judge Wallace
Capel Jr. that motion for
summary judgment by US
Army Corps Eng, Environ
Protection [16-1] be granted and
motion for summary judgment
by Frances Gordenker, Harvey
Gordenker, Keith Carabell, June
Carabell [14-1] be denied [EOD
Date: 3/6/03] (RH) (Entered:
03/06/2003)
OBJECTIONS by plaintiff to
report & recommendation [22-1]
with proof of service (ew)
(Entered: 03/17/2003)
ORDER by Judge Paul D.
Borman accepting report &
recommendation [22-1], granting
motion for summary judgment
by U S Army Corps Eng,
Environ Protection [16-1],
denying motion for summary
judgment by Frances
Gordenker, Harvey Gordenker,
Keith Carabell, June Carabell
[14-1] |EOD Date 4/1/03] (at)
lla
(Entered: 04/01/2003)
03/27/2003 25 JUDGMENT entered by Judge
Paul D. Borman for defendant
{EOD Date: 4/1/03} (at)
(Entered: 04/01/2003)
04/25/2003 26 PROOF of service of notice of
appeal (ew) (Entered:
04/28/2003)
04/25/2003 27 APPEAL by plaintiffs June
Carabell, Keith Carabell, Harvey
Gordenker and Frances
Gordenker of orders [24-1] and
[25-1] to USCA - FEE: PAID -
Receipt #: 486768 (Ib) (Entered:
05/06/2003)
05/06/2003 28 PROOF of service of notice of
appeal [27-1] to USCA and
counsel of record (Ib) (Entered:
05/06/2003)
10/07/2004 29 (Not Certified) ORDER from
USCA re 27 Notice of Appeal -
affirmed. [Appeal Case Number
03-1700] (LBeh, ) (Entered:
10/07/2004)
12/09/2004 30 SLIP Opinion from USCA as to
27 Notice of Appeal filed by
Keith Carabell, June Carabell,
Harvey Gordenker and Frances
Gordenker - affirmed. | Appeal
Case Number 03-1700] (LBeh, )
12/09/2004
01/25/2005
05/04/2005
12a
(Entered: 12/09/2004)
APPEAL JUDGMENT from
USCA as to 27 - affirmed.
[Appeal Case Number 03-1700]
(LBeh, ) (Entered: 12/09/2004)
“MANDATE of USCA as to 27
Notice of Appeal filed by Keith
Carabell, June Carabell, Harvey
Gordenker and Frances
Gordenker, affirmed. | Appeal
Case Number 03-1700] (LBeh, )
(Entered: 01/25/2005)
LETTER from SC re 27 Notice
of Appeal - petition for a writ of
certiorari was filed and placed on
the 4/15/2005 docket. [Appeal
Case Number 04-1384] (LBeh, )
(Entered: 05/04/2005)
13a
General Docket
US Court of Appeals for the Sixth Circuit
Court of Appeals Docket #: 03-1700
Filed: 6/6/03 .
Nsuit: 2863 Social Security: DIWC/DIWW
Carabell, et al v. US Army Corps Engr, et al
Appeal from: Eastern District of Michigan at Detroit
Case type information:
1) Civil
2) United States as party
3) civil rights
Lower court information:
District: 0645-2 : 01-72797
Trial Judge: Paul D. Borman, District Judge
Date Filed: 7/26/01
Date order/judgment: 4/1/03
Date NOA filed: 4/25/03
-~——- += - = ~~ — ——-— = — — eer rl rl rl rl rr hl rh Cl rl rhc Or lc rr hl rl rl rl rr lc rhc Oh
Prior cases:
None
Current cases:
None
Docket as of October 18, 2005 9:10 pm Page 1
03-1700 Carabell, et al v. US Army Corps Engr, et al
l4a
JUNE CARABELL Timothy A. Stoepker
Plaintiff- Appellant § FTS 223-3598
313-223-3500
[COR LD NTC ret]
Paul R. Bernard
FTS 223-3598
313-223-3500
[COR ret]
Dickinson, Wright, PLLC
500 Woodward Avenue
Suite 4000 One Detroit Center
Detroit, MI 48226-3425
KEITH CARABELL Timothy A. Stoepker
Plaintiff- Appellant § (See above)
[COR LD NTC ret}
Paul R. Bernard
(See above)
(COR ret]
HARVEY GORDENKER Timothy A. Stoepker
Plaintiff - Appellant § (See above)
{COR LD NTC ret}
Paul R. Bernard
(See above)
[COR ret]
FRANCES GORDENKER Timothy A. Stoepker
Plaintiff- Appellant § (See above)
(COR LD NTC ret]
Paul R. Bernard
(See above)
[COR ret]
PACIFIC LEGAL FOUNDATION _M. Reed Hopper
Amicus Curiae
Vv.
15a
FTS 419-7747
916-419-7111
[COR LD NTC ret]
Pacific Legal Foundation
3900 Lennane Drive
Suite 200
Sacramento, CA 95834
UNITED STATES ARMY CORPS OF
ENGINEERS
Defendant - Appellee 202-514-2762
Todd S. Kim |
FTS 514-8865
[COR LD NTC gvt]
U.S. Department of Justice
Land & Natural Resources
Division |
P.O. Box 23795
Docket as of October 18, 2005 9:10 pm Page 2
03-1700 Carabell, et al v. US Army Corps Engr, et al
L'Enfant Plaza Station
Washington, DC 20026
Laurel A. Bedig
FTS 514-8865
202-305-0331
[gvt]
U.S. Department of Justice
Environmental Defense Section
P.O. Box 23986
16a
Washington, DC 20026-3986
UNITED STATES ENVIRONMENTAL
Todd S. Kim
PROTECTION AGENCY (See above)
Defendant - Appellee [COR LD NTC gvt]
Laurel A. Bedig
(See above)
[gvt]
Docket as of October 18, 2005 9:10 pm Page 3
oeeetet en aeeeeren mame ee ent ee ee meee ee
03-1700 Carabell, et al v. US Army Corps Engr, et al
JUNE CARABELL,; KEITH CARABELL;
HARVEY GORDENKER; FRANCES
GORDENKER
Plaintiffs - Appellants
v.
UNITED STATES ARMY CORPS OF ENGINEERS;
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Defendants - Appellees
Docket as of October 18, 2005 9:10 pm Page 4
| 17a
03-1700 Carabell, et al v. US Army Corps Engr, et al
6/6/03 Civil Case Docketed. Notice filed by
Appellant June Carabell, Appellant Keith Carabell,
Appellant Harvey Gordenker, Appellant Frances
Gordenker. Transcript needed: n (ert)
6/6/03 BRIEFING LETTER SENT setting
_ briefing schedule: appellant brief due 7/16/03 ; appellee
brief due 8/18/03 ; appendix due 9/11/03; final briefs due
9/26/03 ; . (ert)
6/13/08 APPEARANCE filed by Attorney Todd S.
Kim for Appellee EPA, Appellee US Army Corps Engr.
[03-1700] (jts)
6/23/03 APPEARANCE filed by Attorney
Timothy A. Stoepker for Appellant Frances Gordenker,
Appellant Harvey Gordenker, Appellant Keith
Carabell, Appellant June Carabell [03-1700] (jts)
6/23/03 APPEARANCE filed by Attorney Paul R.
Bernard for Appellant Frances Gordenker, Appellant
Harvey Gordenker, Appellant Keith Carabell,
Appellant June Carabell [03-1700] (jts)
6/23/03 PRE-ARGUMENT STATEMENT filed
by Paul R. Bernard for Appellant Frances Gordenker,
Appellant Harvey Gordenker, Appellant Keith
Carabell, Appellant June Carabell [03-1700] (jts)
7/17/03 PROOF BRIEF filed by Paul R. Bernard
for Appellant Frances Gordenker, Appellant Harvey
Gordenker, Appellant Keith Carabell, Appellant June
18a
Carabell. Certificate of service date 7/16/03 Number of
Pages: 46 (10018). [03-1700] (rgf)
7/17/03 Request to require oral argument filed by
Paul R. Bernard for Appellant Frances Gordenker,
Appellant Harvey Gordenker, Appellant Keith
Carabell, Appellant June Carabell (03-1700) (rgf)
7/2303 APPEARANCE filed by Attorney M.
Reed Hopper for Amicus Curiae Pacific Legal [03-
1700} (ert)
7/23/03 BRIEF filed by M. Reed Hopper for
Amicus Curiae Pacific Legal on behalf of the appellants.
Copies 7. Certificate of service date 7/22/08 . [03-1700]
“with consent" (ert)
7/25/03 Appellee MOTION filed to extend time to
file brief (requesting 30 days). Motion filed by Todd S.
Kim for the Appellees. Certificate of service date
7/24/03 . [03-1700] (dtk)
7/31/03 LETTER SENT by csmgr resetting
briefing schedule: [03-1700] granting motion to extend
briefing |2786511-1] filed by Todd S. Kim (03-1700)
appellee brief now due 9/17/03 ; appendix now due
10/8/03 ; appellant final brief now due 10/29/03 ; appellee
final brief now due 10/29/08 . (jts)
Docket as of October 18, 2005 9:10 pm Page 5
03-1700 Carabell, et al v. US Army Corps Engr, et al
19a
9/18/03 PROOF BRIEF filed by Todd S. Kim for
Appellee EPA, Appellee US Army Corps Engr.
Certificate of service date 9/17/03 . Number of Pages:
56+(13322). [03-1700] (rgf)
9/18/03 Request to require oral argument filed by
Todd S. Kim for Appellee EPA, Appellee US Army
Corps Engr [03-1700] (rgf)
10/7/03 PROOF REPLY BRIEF filed by Paul R.
Bernard for Appellant Frances Gordenker, Appellant
Harvey Gordenker, Appellant Keith Carabell,
Appellant June Carabell Certificate of service date
10/6/03 [03-1700] 14+++ pages. Final reply brief due
10/29/03 . [03-1700] (rgf)
10/9/03 APPENDIX filed by Paul R. Bernard for
Appellant Frances Gordenker, Appellant Harvey
Gordenker, Appellant Keith Carabell, Appellant June
Carabell. Copies: 05 - 3 VOLUMES; 870 pages..
Certificate of service date 10/8/03 [03-1700] (rgf)
10/29/03 FINAL BRIEF filed by Todd S. Kim for
Appellee EPA, Appellee US Army Corps Engr.
Copies: 07. Certificate of service date 10/28/03 .
Number of Pages: 57++(13274). [03-1700] (rgf)
10/29/03 Request to require oral argument filed by
Todd S. Kim for Appellee EPA, Appellee US Army
Corps Engr [03-1700] (rgf)
10/30/03 FINAL BRIEF filed by Paul R. Bernard
for Appellant Frances Gordenker, Appellant Harvey
Gordenker, Appellant Keith Carabell, Appellant June
20a
Carabell. Copies: 07. Certificate of service date
10/29/03 Number of Pages: 46. [03-1700] (rgf)
10/30/03 Request to require oral argument filed by
Paul R. Bernard for Appellant Frances Gordenker,
Appellant Harvey Gordenker, Appellant Keith
Carabell, Appellant June Carabell [03-1700] (rgf)
10/30/03 FINAL REPLY BRIEF filed by Paul R.
Bernard for Appellant Frances Gordenker, Appellant
Harvey Gordenker, Appellant Keith Carabell,
Appellant June Carabell. Copies: 07 Certificate of
service date 10/29/03 Number of Pages: 14. [03-1700]
(rgf)
2/12/04 ADDITIONAL CITATION filed by Todd
S. Kim for Appellee EPA, Appellee US Army Corps
Engr. Certificate of service date 2/11/04 [03-1700] (jts)
5/28/04 Oral argument date set for August 11, 2004
in court room 607. Notice of argument sent to counsel.
[03-1700] (pjm)
Docket as of October 18, 2005 9:10 pm Page 6
03-1700 Carabell, et al v. US Army Corps Engr, et al
8/9/04 ADDITIONAL CITATION filed by Todd
S. Kim for Appellee EPA, Appellee US Army Corps
Engr. Certificate of service date 8/5/04 [03-1700] (jts)
8/11/04 CAUSE ARGUED on 8/11/04 by Paul R.
Bernard for Appellant Frances Gordenker, Appellant
Harvey Gordenker, Appellant Keith Carabell,
Appellant June Carabell, Todd S. Kim for Appellee
2la
EPA, Appellee US Army Corps Engr before Judges
Batchelder, Gibbons, Stafford. [03-1700] (kal)
9/27/04 OPINION filed : AFFIRMED the district
court's decision granting summary judgment to the
defendants. [03-1700], decision not for publication
pursuant to local rule 28(g) [03-1700] . Alice M.
Batchelder, Circuit Judge, Julia S. Gibbons, Circuit
Judge, William H. Stafford, Authoring, District Judge
(N/F'L). 11/15/04 designated FOR PUBLICATION
(jts)
9/27/04 JUDGMENT : AFFIRMED . (jts)
10/12/04 Appellee MOTION filed to publish court's
decision . Motion filed by Todd S. Kim for Appellee
EPA, Appellee US Army Corps Engr. Certificate of
service date 10/8/04 . [03-1700] (jts)
11/15/04 ORDER filed granting the appellees’
motion to publish the court's decision. [03-1700] Alice
M. Batchelder, Julia S. Gibbons, Circuit Judges;
William H. Stafford, District Judge. (stb)
11/15/04 TENDERED : petition for rehearing en
bane which is three days late from Paul R. Bernard for
Appellants Frances Gordenker, Harvey Gordenker,
Keith Carabell, June Carabell [03-1700] (blh)
11/23/04 PETITION for en banc rehearing filed by
Paul R. Bernard for Appellants Frances Gordenker,
Harvey Gordenker, Keith Carabell, June Carabell.
Certificate of service date 11/12/04. [03-1700] (blh)
22a ie
1/10/05 ORDER filed denying petition for en banc
rehearing [3063145-1] filed by Paul R. Bernard [03-
1700]. Alice M. Batchelder, Julia S. Gibbons, Circuit
Judges; William H. Stafford, District Judge. (blh)
1/185 | MANDATE ISSUED with no cost taxed
[03-1700] (rgf)
4/19/05 U.S. Supreme Court notice filed regarding
petition for writ of certiorari filed by Appellant June
Carabell, et al. Filed in .ae Supreme Court on 04-11-05 ,
Supreme Ct. case number: 04-1384 . [03-1700] (swh)
Docket as of October 18, 2005 9:10 pm Page 7
03-1700 Carabell, et al v. US Army Corps Engr, et al
10/18/05 U.S. Supreme Court letter filed granting
petition for writ of certiorari [3145665-1] filed by June
Carabell Supreme Court No. 04-1384 [03-1700] Case is
consoliated with Sup. Ct. No. 04-1034 and a total of one
hour is allotted for oral argument. . Filed in the
Supreme Court on 10-11-05 . (swh)
Docket as of October 18, 2005 9:10 pm Page 8
23a
STATE OF MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY OFFICE OF
ADMINISTRATIVE HEARINGS
SUBJECT: Part 301, Inland Lakes and Streams, and
Part 303, Wetland Protection, of the Natural Resources
and Environmental Protection Act (NREPA), 1994 PA
451, as amended.
Petition of June and Keith Carabell and Frances and
Harvey Gordenker
File No. 93-14-602
PROPOSAL FOR DECISION
Richard A. Patterson Administrative Law Judge
DATED: August 12, 1998
This case involves the Department of Environmental
Quality’s (Department) denial of a permit application
filed by June and Keith Carabell and Frances and
Harvey Gordenker (Petitioners). The permit
application proposed to place fill in a regulated wetland
in order to facilitate the construction of a housing
development.
The application for a permit was filed under the
provisions of Part 303, Wetland Protection, of Natural
Resources and Environmental Protection Act
(NREPA). Although the case is captioned to include
consideration of Part 301, Inland Lakes and Streams, of
NREPA, there is no anticipated activity, nor was there
any evidence presented as to impacts on the Sutherland
24a
Oemig Drain adjacent to the subject parcel. Therefore,
an analysis of the proposed activity under the criteria of
Part 303 is unnecessary.
On March 30, 1994 a petition for contested case hearing
on the denial was filed with this Tribunal. Upon the
request of Parties, the case was held in abeyance to
facilitate informal settlement negotiations. While the
case was held in abeyance written Status Reports were
periodically filed with this Tribunal, the last of which,
dated May 23, 1997, had the Petitioners reporting an
impasse in the negotiations and requesting a hearing be
scheduled. A pre-hearing conference was conducted on
July 17, 1997, to prepare the case for hearing. A
contested case hearing was conducted in this matter on
October 27, 28, 29 & 30, 1997, January 27, 28, 29 & 30,
1998, and February 2, 1998. The Parties filed post-
hearing briefs and proposed findings of fact and
conclusions of law. Those filings have been reviewed
and utilized to the extent they accurately reflect the
record and the law. Proposed Findings and Conclusions
not addressed were either found to be unsupported by
the record or unnecessary in preparing this Proposal
for Decision.
JURISDICTION
The hearing was requested under the provisions of Part
303, Wetland Protection, of NREPA, MCL 324.30301 et
seq.; MSA 13A.30301 et seq., and the administrative
rules, and was conducted pursuant to the provisions of
the Michigan Administrative Procedures Act, MCL
24.201 et seq. ; MSA 3.560 (101 )et seq.
The Department suggests this case should be held in
abeyance pending resolution of a Motion for
25a
Reconsideration of a recent order of the Michigan
Supreme Court in Friends of the Crystal River v.
Kuras, et al., Mich ___; 577 NW2d 684 (March 31,
1998). This Tribunal is not inclined to grant that
request in that the essence of the motion addresses a
sophisticated and esoteric issue over a set of unusual
circumstances involving the interplay of state and
federal regulation. Furthermore, to further delay a
decision in this case, which has been pending since
March 30, 1994, based on a decision by the Supreme
Court which will not resolve the contested issues is
unfair and prejudicial to the Petitioners.
The Department has also expressed concern over the
Petitioners reliance on the reasoning of Administrative
Law Judge (ALJ) William C. Fulkerson and the
Michigan Court of Appeals in Kuras regarding the
burden of proof, the required analysis of Part 303
criteria and the interpretation of the meaning of
feasible and prudent alternatives. While the Supreme
Court declared in Kuras that the". . . decisions of the
ALJ and the MRC are declared to be of no precedential
force and effect", the Order is clearly aimed at the issue
of jurisdiction or to issue a permit, as opposed to the
underlying reasoning expressed. That reasoning,
involving the existence or non-existence of feasible and
prudent alternatives, is. persuasive, if not precedential
_ PARTIES
Mr. and Mrs. Keith Carabell and Mr. and Mrs. Harvey
Gordenker are the applicants for a permit pursuant to
Part 303 and are represented by Timothy A. Stoepker,
Esq. The professional staff of the Michigan Department
of Environmental Quality is charged with the day-to-
26a
day implementation of Part 303. The Department is
represented by Elaine Dierwa Fischhoff , Assistant
Attorney General .
At the hearing the Petitioners presented five (5)
witnesses: Mr. Keith Carabell; Mr. Robert Leighton,
y band Planner and Wetlands Consultant; Mr. Patrick
Meagher, C. P., Urban Planning Consultant to
Chesterfield Township; Mr. Bernard C. Sieber, P.E.,
Real Estate Development Engineering Consultant and
Mr. Jack Hernandez, Jr., Macomb County Real Estate
Broker.
The Department presented six (6) witnesses: Mr. Barry
Horney, DEQ, Southeast Michigan District Supervisor;
Mr. Ernie Kafcas, Department of Natural Resources,
Wildlife Biologist; Mr. Kurt Childs, DEQ, Land and
Water Management Analyst; Mr. Rob Zbiciak, DEQ,
Land and Water Quality Manager; Mr. Don Gunning,
President, Lake St. Clair Advisory Committee; and Mr.
_ Jason Horton, Esq., Attorney and Real Estate
Developer. Mr. James Piggush, Assistant Attorney
General, testified with respect to a Motion to Disqualify
Mr. Mark Thomas as a witness for the Petitioners.
However, Mr. Thomas was withdrawn as a witness
previous to a ruling on the motion.
The Petitioner introduced twenty six (26) exhibits,
which are labeled numerically. The Department
introduced twenty five (25) exhibits, which are labeled
‘alphabetically. A list and description of these exhibits is
attached to this Proposal for Decision
STIPULATIONS ON THE RECORD
27a
At the commencement of the hearing the Parties
entered into the following stipulations:
1) The Petitioners are proper applicants for a permit.
2) The activity proposed in the application is regulated.
3) A permit is necessary.
I find these stipulations are legally correct, and I adopt
them as findings. Stipulations entered into by the
parties shall be used as evidence at the hearing and are
binding. MCL 24.278; MSA 3.560 (178); Dana
Corporation v. Employment Security Commission, 371
Mich 107, 110 (1963).
FINDINGS OF FACT
PROCEDURAL HISTORY
The subject parcel was the subject of an application
filed in 1987 by Seminole Investment Company, under a
purchase agreement with the Petitioners, which
proposed to excavate the site and build a 200 unit
condominium complex. A permit for that activity was
denied by the then Michigan Department of Natural
Resources and not administratively contested.
A lawsuit alleging the 1987 denial constituted a takings,
and requesting compensation, was filed by the
Petitioners in the Michigan Court of Claims, which
subsequently dismissed the action. The Michigan Court
of Appeals upheld the dismissal, stating that while the
Petitioners had established that one profitable use of
the property had been denied, they had not applied for
or explored other proposals which may be economically
feasible. Carabell et. al. v Michigan Department of
Natural Resources, 191 Mich. App. 610; 478 NW2d 675
28a
(1991). The Michigan Supreme Court denied leave. Id.,
439 Mich 980; 483 NW2d 858 (1992).
The present application for permit was filed on June 10,
1993. Additional information was requested by the
Department on July 21, 1993 and supplied on November
29, 1993. The application was then deemed
administratively complete and public noticed on
December 2, Adverse comments were received from
the Lake St. Clair Advisory Committee and the U.S.
Fish and Wildlife Service. Mr. Kurt Childs inspected
the site and prepared a Project Review Report on
February 8, 1994. Exhibit D-P. In the denial letter the
Department suggested further revision of the project
and requested the Petitioners submit a modified
proposal. On April 27, 1994, subsequent to the filing of
the petition for contested case hearing, Mr. Childs
revisited the site and prepared a second Project
Review Report which located available upland
consisting of an area approximately 100 by 240 feet.
Exhibit R-R. He had previously visited the site and
prepared a Project Review Report. Exhibit R-P.
LOCATION AND NATURE OF THE SUBJECT
PROPERTY
The subject parcel is located in Chesterfield Township,
Macomb County, Michigan. The property consists of
19.6 acres, of which 15.96 acres are wetlands. The parcel
is triangular in shape and fronts on Donner Road on its
westerly border. The hypotenuse of the triangle runs
from the southwesterly corner of the parcel at a 45
degree angle to the northeast corner and is separated
from the. adjacent property by the Sutherland-Oemig
Drain. The northerly border abuts a multi-family
29a
residential development. The upland on the property is
adjacent to the west and southeast perimeters.
The Petitioners originally proposed to excavate 28,000
cubie yards of soil and to construct a 130 unit town
house complex on the parcel. Exhibit D-0. During the
pendency of this case the Petitioners submitted two (2)
revised proposals depicted in Exhibits P-78 and P-79,
both of which entail the construction of 112 units,
reducing the amount of wetland involved to 12.2 acres.
Exhibit P-78 involves preservation of 3.74 acres of
wetland, while Exhibit P-79 involves wetland
enhancement of the same acreage. The Department
contends a development of 24 units on the upland
fronting Donner Road, with some intrusion into the
wetland, is a viable alternative to the activity proposed
in the permit, or the subsequent proposals. Therefore,
the analysis under Part 303 must focus on whether the
activity proposed in the. permit application, the
Petitioner's subsequent proposals, or the Department's
alternative are allowable under the statutory criteria.
TESTIMONY ON THE RECORD
As previously discussed, the Parties stipulated to the
presence of regulated wetland on the subject parcel.
With that stipulation, Part 303, specifically section
30311, next requires the following criteria be reviewed
for each permit application and mandates findings be
made with regard to each criterion.
(1)A permit for an activity listed in section 30304 shall
not be approved unless the department determines that
the issuance of a permit is in the public interest, that
the permit is necessary to realize the benefits derived
30a
from the activity, and that the activity is otherwise
lawful.
A determination of whether the project is in the public
interest is made by applying criteria discussed in Part
303. The Parties have stipulated a permit is necessary
and I have adopted that as a Finding of Fact.I further
find, as a Matter of Fact, the proposed 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.
Mr. Patrick Meager, in his capacity as an urban
planning consultant, tescified to a need for 150 senior
citizen residences in Chesterfield Township. The
demographics of the Petitioners’ proposals were not
specified, but testimony was elicited that the property
is zoned RM-3 , which allows for the proposed use and
that it is consistent with the master plan. The record
also reflects a letter from Chesterfield Township dated
November 6, 1987, which encouraged the approval of
the original multi-family proposal: Exhibit P-21. There
would appear, therefore, to be a public need for the
proposed activity.
3la
Similarly, the record indicates a private need for the
proposed activity. There was a great deal of testimony
regarding the Petitioners having to develop the
property in some fashion so as to realize a return on
their investment.
(b) The availability of feasible and prudent alternative
locations and methods to accomplish the expected
benefits from the activity.
There would not appear to be any available alternative
locations for the proposed activity. The immediate area
is fully developed. Mr. Meagher testified there did not
appear to be any undeveloped property in Chesterfield
Township which is zoned to accommodate Petitioners'
multi-family proposal, with the exception of a parcel
located north of 21 Mile Road and west of 1-94. There
was no evidence addressing the characteristics of that
site, or its availability. Based on the foregoing, I find, as
a Matter of Fact, there is no feasible and prudent
alternative location available.
The issue of feasible and prudent alternative methods is
much more complex. The 1987 application contemplated
filling in the entire wetland to facilitate the
construction of 200 residential units. The 1998
application initially requested 130 units, which was
subsequently revised to 112 units, with alternative
provisions for preservation. or enhancement of the
remaining wetland. Preservation essentially entails
maintaining, or restoring the area outside the
_ developed envelope to its natural state, in this case
wetland. Enhancement involves dredging to varying
depths and planting of diverse plant species to improve
the quality, function and aesthetics of the wetland. Both
32a
of the 112 unit proposals involve the installation of a
detention pond, as well. The Department is
insistent on mitigation in response to those proposals,
or in the alternative, a much smaller project involving
24 units adjacent to Donner Road.
Based on the foregoing, there are three lternatives
before this Tribunal:
1. 112 units with preservation.
2. 112 units with enhancement
3. The Department alternative of 24 units.
Each of these alternatives will be addressed separately.
However, because the Department is insistent on
mitigation in response to proposals 1 and 2, that issue
will be addressed first.
1988 ARCS, R 281.925 provides for mitigation and
addresses the necessary determination in this regard.
Under subsection (4) (c) it must be determined "|T}hat
it is practical to replace the wetland resource values
which will be unavoidably impacted". The rule does not
quantify the amount of wetland to be created through
mitigation to compensate for the loss. However, Mr.
Horney testified, as a general rule, the Department
requires mitigation in the amount of 1 1/2 times the
amount of wetland lost. However, this "general rule" is
not binding and each application must be reviewed on
its merits; including the necessity for mitigation and the
ratio.
Proposals 1 or 2 would result in 12.2 acres of wetland
being lost, which computes to a required mitigation of
18.3 acres under the Department's "general rule". Both
33a
Mr. Robert Leighton and Mr. Bernard Sieber estimated
the cost of land acquisition and creation of new wetland
to be $45,000 to $50,000 an acre, which computes to a
mitigation cost of $823,000 to $915,000 for Proposals 1
or 2.
The Leighton/Sieber calculations were disputed by Mr.
Jason Horton. First, he opined that land which is
undevelopable, and presumably available because it is
either too small, contaminated, or land-locked, could be
purchased for a 'ittle as $5,000 an acre. However, no
specific sites were put forth, and the availability and
desirability of property which meets these specifics is
questionable. he also disputed the figure of $13,000 an
acre for planting vegetation built in to the
Leighton/Sieber estimate, stating it could be
accomplished for $2,000 an acre. Lastly, he believes the
figure of $13,000 an acre for excavation is too high in
that it is based on going to a depth of 2 1/2 feet, which is
unnecessary.He has seen wetland mitigation
accomplished by excavation to a depth of 1 foot,
reducing that cost by approximately $4,000 an acre. Mr.
Horton testified a total mitigation cost of
approximately $11,000 an acre is more accurate, which
for Proposal 1 or 2 equates to slightly over $200,000.
In addition, Mr. Rob Zbiciak testified to the possibility
of. a statewide wetland mitigation banking program
being implemented in the future. However, this
testimony is speculative and has no probative value.
As stated in R 281.925, in order for mitigation to occur,
there must be a finding it is practical. The American
Heritage College Dictionary (1993), as applicable in this
context, defines practical as:
34a
"Of, relating to, governed by, or acquired through
practice or action, rather than theory, speculation or
ideals."
As discussed above, the record in this matter as it
pertains to mitigation can fairly be characterized as
theoretical and speculative. Therefore, a finding that
mitigation is practical under R.281.925 is not possible.
Regarding the Department's proposal of 24 units on the
edge of the property fronting Donner Road, Mr. Sieber
estimated a loss to the Petitioners of $18,486 per unit
with mitigation at 11/2 times the lost wetland, or $8,027
with on site wetland enhancement. Transcript 1/27/98,
pg. 88. Additionally, if neither mitigation or
enhancement were required there would still be a loss
per unit under the Department's proposal. Transcript
1/27/98 pg. 9-1.
Conversely, Mr. Horton testified that a return of over
$48,000 per unit could be possible, exclusive of land
costs. Transcript 1/30/98, pg. 156. However, Mr. Horton
did not consider architectural or construction
management fees, and be utilized substantially lower
building costs per square foot than did Mr. Sieber.
There is also a question as to the proper method of
calculating debt service. There is, therefore, a question
whether the Department's proposal is economically
viable, which despite Mr. Horton's testimony, would
appear doubtful. Although Mr. Horton has considerable
experience in the field, many of his assumptions were
based on larger projects located outside of Macomb
County which were not necessarily comparable in size
or price to the instant project. However, both Mr.
Sieber and Mr. Jack Hernandez based their testimony
35a
on whether there exists a feasible and prudent
alternative to the proposed activity on local market
conditions.
It is obviously not possible to precisely project
profitability or lack of it on the testimony presented.
But the issue to be considered is the existence of a
feasible and prudent alterative. In that regard, the 24
unit project is feasible in the sense that it can physically
be accomplished. Whether or not it is pane in an
economic sense is doubtful.
Of the two alternatives proposed by Petitioners, the
second involving enhancement is clearly more prudent.
This is true because, as Mr. Leighton testified, the
existing wetland is of minimal value, and while the
proposed project would permaneiitly remove a majority
of it, the enhancement area, if done properly, would
greatly increase wetland function in that area. He also
testified enhancement would significantly improve
water quality by filtering runoff before it went into the
drainage system and would provide greater diversity of
plants and wildlife. Aesthetics, in his opinion, would
also be improved. Transcript 10/28/97, pg. 397.
The history of this case demonstrates a significant
downsizing of the project from the initial application,
for 200 units utilizing all of the wetlands to the current
proposal involving 12.2 acres of the 15.96 acres of
wetland, with enhancement or creation of 3.74 acres of
wetland. Exhibit P-79. This alternative is obviously
feasible and, as discussed above, is also prudent.
Based on the above analysis, I find, as a Matter of Fact,
a feasible and prudent alternative to the activity
36a
proposed in the application for a permit is the
placement of fill in 12.2 acres of wetland to facilitate the
construction of 112 residential units with enhancement
of the remaining 3.74 acres of wetland.
(c) The extent and permanence of the beneficial or
detrimental effects which the proposed activity may
have on the public and private uses to which the area is
suited, including the benefits the wetland provides.
Mr. Leighton testified the wetland does not provide any
beneficial effect on the surrounding public and private
uses. This opinion is premised on the fact the wetland
does not have a surface water connection to adjacent
properties or any body of water, and the property to
the immediate north is isolated by a retention pond.
Furthermore, the drainage ditch along Donner Road
prevents discharge of water both to and from the site,
and the Sutherland-. Oemig Drain is bermed, which
prevents the discharge of water either into it or from
the drain. Mr. Leighton characterized the site as being
tantamount to a bath tub, in that the only water coming
onto and being retained on the parcel is from rainfall.
Due to the presence of clay soils on the site it is not
permeable and ground water neither runs from or onto
the site.
The Department did not refute this testimony, but did
offer the testimony of Mr-—Ahbiciak that, "there is
nothing in the statue that allows us to define something
as a marginal wetland. It either meets the definition of
a wetland based on the statute or it does not."
Transcript 1/27/98, pg. 119. However, “this is a legal
opinion and is inaccurate. While Part 303 does not
qualify wetlands, they are either regulated or they are
37a
not, the legislature requires findings regarding the
benefit the wetland provides when reviewing a permit
application.
Mr. Kurt Childs testified regarding what are general
concerns over losing virtually all of the subject wetland
and cumulative impacts which may result. However, he
essentially agreed with Mr. Leighton as to the soil
composition on the site. Although Mr. Childs
determined the presence of Toledo soils through the
county soil survey, he described that soil as "slightly
more permeable than straight clay.". Transcript 1/28/98,
pg. 32. He agreed with the U.S. Fish and Wildlife
Service's concerns over habitat loss, but did not have
sufficient information regarding whether the wetland
was serving to protect subsurface water or acting to
recharge groundwater. In addition, he could not testify
that the wetland was acting as a biological and chemical
oxidation basin. He "guessed" it may trap sediments in
the event of an overflow of the adjacent drain.
Transcript 1/28/98, pg. 36.
Based of the above testimony, the benefits provided by
a wetland: flood and storm control; protection of
subsurface water resources; pollution treatment;
erosion control and sources of nutrients would not be
effected by the proposed activity. As noted later under
the analysis of subsection (e) fish are not .present and
wildlife and wildlife habitat are not significant
considerations.
The proposed wetland enhancement will serve to
improve the value of the area, but will not replace the
wetland as it currently exists on an acre for acre basis.
However, as previously discussed the record fails to
38a
establish that the value of the wetland on the site as it
presently exists is substantial, but rather it
demonstrates the wetland has, at best, very limited
functional value. This criteria requires a balancing of
the beneficial and detrimental effects of the uses,
including the wetland uses. The balance as to the
proposed use of this site favors the proposal of the
Petitioners for wetland enhancement.
I have previously found the Petitioners proposed use
with wetland enhancement is one to which the property
is suited under an economic analysis and under local
land use planning. Additionaily, I find, as a Matter of
Fact, the benefits for both private and public use will be
substantial, the impact will be long term and the
physical impact on the property, specifically the, loss of
whatever values the 12.2 acres of wetland provides, will
be permanent. However, I further find, as a Matter of
Fact, the wetland currently provides little benefit and
the proposed wetland enhancement will provide
greater benefit than any detriment resulting from the
loss of 12.2 acres of wetland.
(d) The probable impact of each proposal in relation to
the cumulative effect created by other existing and
anticipated activi-ties in the watershed.
But for the subject parcel, the immediate surrounding
area is virtually fully developed. There will, therefore,
be little if any further activity in this area of the
watershed. As stated previously, although the parcel is
adjacent to the Sutherland-Oemig Drain, which
ultimately flows into Lake St. Clair, there is not a
surface water connection to the drain. Therefore, | find,
as a Matter of Fact, there will no impact on the
39a
watershed, which is the wetland as it currently exists,
by the proposed activity.
(e) The probable impact on recognized historic, cultural,
scenic, ecological or recreational values and on the
public health or fish or wildlife.
There is no evidence on the record addressing historic,
cultural values or any impact on the public health.
Scenic values are subjective and nebulous, as borne by
the fact the Department prefers the scenic value of the
pristine wetland and the Petitioners, as well and
Chesterfield Township officials., (Exhibit P-21), would
prefer the site be developed. Fish are not a factor as
none are present or this site.
The site is predominantly forested wetland and the lack
of any significant understory in the interior, which is
necessary in providing cover and food supply,
undermines wildlife value. The only significant
understory is located on the perimeter (Robert
Leighton, 10.,29/97, page 532) which would not be
significantly disturbed under any proposal. Mr.
Leighton observed only a rabbit and a few possible
groundhog burrows on the parcel, and the presence of
song birds, but no waterfowl. According to the
testimony of Mr. Ernie Kafcas, the site is currently
conducive to migration of water fowl and other neo-
tropical bird species . He further stated the property
would be conducive for certain reptiles and amphibians,
as well as suburban type mammals such as raccoon and
rabbit.
Based on the foregoing, I find, as a Matter of Fact,
wildlife value of the site is minimal. I further find, as a
40a
Matter of Fact, the proposed project's probable impact
on the other criteria would be de minimus.
(f) The size of the wetland being considered.
The wetland on the subject property consists of 15.96
acres. Exhibit P-32. The Petitioners’ revised proposals
would each impact 12.2 acres. The Department's
alternative would involve the placement of fill in
approximately 2 to 4 acres of wetland.
(g) The amount of remaining wetland in the general
area.
The area is fully developed and, therefore, there is
virtually no remaining wetland. As _ previously
discussed, the Petitioners' revised proposals would
eliminate 12.2 acres out of 15.96 acres, leaving 3.76
acres of wetland on the subject parcel. The
Department's proposal would eliminate 2 to 4 acres of
wetland, leaving approximately 13 acres.
(h) Proximity to any waterway.
Although the parcel is adjacent to the Sutherland
Oemig Drain, it is not connected to the facility. The
parcel is isolated from any other water body by land on
all sides. Although the distance was not quantified the
parcel is a substantial distance from Lake St. Clair.
(i) Economic value, both public and private, of the
proposed land charge to the general area.
The economic value of the parcel would be greatly
enhanced from the perspective of the public as well as
4la
the Petitioners. The Petitioners would, if allowed to
develop the property, realize a return on their
investment and the township would benefit from a
substantial increase in its tax base, which would
outweigh any increased costs of services. Those
involved in the construction and marketing of the
development would also receive income from the
project.
(3) In considering a permit application, the department
shall give serious consideration to findings of necessity
for the proposed activity which have been made by
other state agencies.
There have been no findings of 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 30302 and subsection (2) shall be considered.
A permit shall not be issued unless the applicant also
shows either of the following:
(a) he proposed activity is primarily dependent upon
being located in the wetland
(b) A feasible and prudent alternative does not exist.
The criteria to be considered pursuant to MCL
324.30302 (b)(i) through (vi) would not be materially
adversely effected by the activity proposed in Exhibit
P-79. Furthermore, for the reasons previously stated,
said activity will not result in an unacceptable
disruption to the aquatic resources.
42a
The available upland on the site is too small to
accommodate the proposed activity and it cannot be
accomplished without impacting the wetland to some
extent. Therefore, the proposed activity is dependent
upon being located in the wetland. This Tribunal has
previously found that a feasible and prudent alternative
exists to the activity proposed in the permit application
and the Department's proposal.
CONCLUSIONS OF LAW
1. I conclude, as a Matter of Law, based on the
stipulation of the Parties, the subject site is comprised
of regulated wetland and a permit is required pursuant
to Section 30304(a) and (b) of Part 303 of NREPA.
2. I conclude, as a Matter of Law, based on the
stipulation of the Parties, the application for a permit
was processed in a procedurally proper manner and
June and Keith Carabell and Frances and Harvey
Gordenker are the proper Petitioners in this matter.
3. I conclude, as a Matter of Law, the proposed activity
as depicted in Exhibit P-79 is in the public interest.
4. I conclude, as a Matter of Law, the proposed activity
as depicted in Exhibit P-79 will not cause an
unacceptable disruption to aquatic resources.
5. | conclude, as a Matter of Law, the proposed project
as depicted in Exhibit P-79 is wetland dependent.
6. I conclude, as a Matter of Law, the proposed activity
as depicted in Exhibit--P-7.9 is otherwise lawful.
7. I conclude, as a matter of Law, there is feasible and
43a
prudent alternative to the activity proposed in the
application for a permit, specifically placement of fill in
the wetland to facilitate the construction of 112
residential units with wetland enhancement as depicted
in Exhibit P-79.
PROPOSAL FOR DECISION
Based upon the Findings of Fact and Conclusions of
Law, it. is proposed that a Final Order be issued
permitting the placement of fill on the subject parcel to
facilitate the construction of 112 residential units with
wetland enhancement as depicted in Exhibit P-79.
Dated: August 12, 1998
Richard A. Patterson Administrative Law Judge
44a
RE: Part 303 Wetland Protection and Part 301 Inland
Lakes & streams of the Natural Resources and
Environmental Protection Act (NREPA) , 1994 PA 451,
as amended.
Petition of June & Keith Carabell and Francis &
Harvey Gordenker
File No. 93-14-602
EXHIBITS
Respondent's Exhibits
A Tax Statement for 1969, Township of Chesterfield,
due December Ist, No. 776, page 132.
B Letter dated February 22, 1994, from Kurt Childs,
Analyst and Barry J. Horney, District Supervisor,
Livonia, Michigan Department of Natural
Resources (DNR), Land & Water Management
Division (LWMD) to June Carabell, Keith Carabell,
Harvey Gordenker, and Frances. Gordenker.
C Letter dated September 26, 1996, from Elaine
Dierwa. Fischhoff, Assistant Attorney General (AAG) ,
Natural.. Resources Division (NRD), Livonia to
Timothy A. Stoepker, Abbott, Nicholsori, Quilter,
Esshaki & Youngblood., P.C.
D Letter dated July 17, 1996, from Timothy Stoepker to
Jeremy M. Firestone, Esq., AAG, NRD.
E Letter dated October 31, 1956 from Timothy A.
Stoepker to Elaine Dierwa Fischhoff.
45a
F Ordinance No. 110, Zoning Ordinance Charter
Township of Chesterfield, Macomb, Michigan,
Published by The Bay Voice, September 11, 1996.
G Wetland Permit Application: Carabell, leslie and
Company Residential Development, Chesterfield
Township, Michigan, June 1993.
H Letter dated June 25, 1993, from Jane A. Prochaska,
Robert Leighton Associates, Land Design to Les
Thomas, MDNR, LWMD-PCU.
I Letter dated November 17, 1993, from Jane A.
Prochaska, Robert Leighton Associates, Land design to
Sally Stoll, MDNR, LWMD-DCU.
J Copy of The Charter Township of Chesterfield Zoning
Ordinances, not current.
K Letter dated September 14, 1987, from Edward W.
Pratt, Partner, Wake-Pratt Companies to DNR,
Attention Harry Horney.
L Project Review Report on application number 87-14-
963W, signed by Robert P. Zbiciak, Water Quality
Specialist, LWMD on December 10, 1987.
M Interoffice Communication dated March 28, 1988 to
File No. from Robert P. Zbiciak.
N Interoffice Communication dated March 25, 1988 to
Rob Zbiciak from Ernest Kafcas, Wildlife Habitat
Biologist.
O Letter dated March 4, 1994 from Robert Perciasepe,
a
Assistant Administrator, United States Environmental
Protection Agency to Roland Harmes, Director,"
MDNR.
P Project Review Report on application number 93-14-
602, signed by Kurt Childs, dated February 8, 1994.
Q Letter dated February 22, 1994 from Kurt Childs,
Analyst and Marry j. Horney, District Supervisor,
Livonia, Michigan DNR, LWMD to June Carabell,
Keith Carabell, Harvey Gordenker, and Frances
Gordenker.
R Project Review Report on application number 93-14-
602, signed by Kurt Childs, dated April 27, 1994.
S Draft Interoffice Communication from Kurt Childs to
Elaine Dierwa Fischhoff .
T Notebook paper drawing, 8 1/2" x 11".
U Photo copy of a plan with Sieber notations on sewer
and water.
V Photo copy of a plan.
W Donner Road Condominiums, Engineer's
Preliminary Cost Estimate, Job No. 97-096, dated
January 12, 1998.
X Notebook paper drawing, 81/2" x 11".
Y Preliminary Proforma Projections (24 Stacked Ranch
Concept), January 29, 1998.
47a
Plaintiff's Exhibits - all Photocopied
1 Resume of Robert C. Leighton, Principal.
3 Land Contract, made on March 28, 1969 between
Zenith Steel & Metal Co., James A. Michael, Joseph
Michaels and Charles R. Towner and Robert Piers],
Keith A. Carabell, Stanton P. Bockner, Harvey
Gordenker and Robert Palmer.
5 Warranty Deed dated July 5, 1971, liber 2662, page
471.
16 Agreement of Sale, Offer to Purchase Real Estate,
Accepted Offer Dated 07/08/87, Investment Co., a
Michigan Co-Partnership.
18 Offer of Purchase of Real Estate signed by Edward
W. Pratt and Harvey Gordenker, Edward W. Pratt,
Purchaser in March, 1987 with attachments.
21 Letter dated November 6, 1987 from, James H.
Rollard, Supervisor, Chesterfield Township to the
State of Michigan Department of Natural Resources on
File No.87-14-953W.
23 Certified Letter dated December .30, 1987 from
Robert J. Hornet, District Supervisor, Land & Water
Management Division (LWMD) , Department of
Natural Resources (DNR) to Semirole Investment
Company.
24 Memorandum dated January 20, 1993 from Ashok K.
Punjabi, District 10 Headquarters, LWMD.
48a
27 Wetland Permit Application: Carabell, Leslie and
Company, Residential Development, Chesterfield
Township, Michigan, June 1993.
31 Letter dated December 17, 1993 from Donald
gunning, Vice-Chairperson, MUCC Wetlands Watch to
Barry Horney, Land Resource Programs Supervisor,
DNR.
32 Public Notice dated December 2, 1993 on File No.
9314-602 from the DNR, LWMD.
35 Letter dated January 14, 1994 from Charles M.
Wooley, Field Supervisor, United States Department
of the Interior., Fish and Wildlife Service to the
Wetlands Coordinator, U.S. Environmental Agency,
Wetlands and Watersheds Section P (WQW-16J) .
39 Two-page review of facts and information found
pertinent to making a decision on application for permit
number 93-14-650, dated 02/17/94 by Kurt Childs.
57 Interoffice Communication dated May 31, 1994 from
Ernie Kafeas, Wildlife Habitat biologist, District 10,
DNR to Kurk Childs, LWMD, District 10, DNR.
71 Interoffice Communication from Kurk Childs to
Barry Horney, comments on applicant's letter dated
10/31/96.
75 Fourteen pages, beginning with Sec. 1201. Minimum
Site and Building Requirements, 15.371 (Rev. 11/90).
76 Zoning/Location Map, Wetland Map, Chesterfield
Township, Macomb County, Michigan, Planner: Robert
49a
Leighton Associates, Inc.
77 Zoning/Location Map, Site Data, Preliminary Site
Plan (Multi-Family Attached Townhomes), Planner:
Robert Leighton Associates, Inc.
78 Zoning/Location Map, Site Data, Preliminary Site
Plan B (Multi-Family Attached Townhouses) , Planner:
Robert Leighton 79 Zoning/Location Map, Site Data,
Preliminary Site Plan A (Multi-Family Attached
Townhomes), Planner: Robert Leighton Associates,
Inc.
80 Zoning Map, Chesterfield Township, Macomb
County, MI, Township Planning Commission.
81 Chesterfield Charter Township, Master Plan.
81b Black and White Aerial Photograph, Chesterfield
Charter Township.
82 Photocopies of six photographs includes one large
panoramic view.
&3 Cross Sections, Chesterfield Charter Township,
Macomb County, MI, Planner: Robert Leighton
Associates, Inc.
84 Three pages, 25.212, Sec. 6.2 Water Connection Fee.
50a
STATE OF MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY OFFICE OF
ADMINISTRATIVE HEARINGS
SUBJECT: Part 301, Inland Lakes and Streams, and
Part 303, Wetland Protection, of the Natural Resources
and Environmental Protection Act (NREPA), 1994 PA
451, as amended.
Petition of June and Keith Carabell and Frances and
Harvey Gordenker —
File No. 93-14-602
FINAL DETERMINATION AND ORDER
The above captioned matter was the subject of a
contested case hearing resulting in the issuance of a
Proposal For Decision dated August 12 , 1998. In a
letter dated August 12, 1998, the Office of
Administrative Hearings gave the Parties to
September 1, 1998, to file written Exceptions to the
proposal for Decision. On August 19, 1998, counsel for
Mr. and Mrs. Carabell and Mr. and Mrs. Gordenker
(Petitioners) filed a letter requesting that the Proposal
for Decision be accepted. Counsel for the Department
of Environmental Quality {[Department) filed a request
for an extension of the filing date on September 2 and
September 11, 1998. On September 17, 2.998 the
Department filed its Exceptions. The matter is now
before the Chief Administrative Law Judge of the
Office of Administrative Hearings for a final agency
decision pursuant to Executive Order 1995-18 and
Delegation Letter No. OAH-324.101 et seq.- 01.
5la
This Tribunal has considered the Proposal For
Decision, the Parties Exceptions, exhibits, transcripts,
pleadings and arguments proposed findings and
conclusions not addressed in this Final Determination
and Order were found to be unsupported by the record
or unnecessary in making a final decision in this
contested case.
The Department raises eleven Exceptions to the
Proposal for Decision. Exceptions 6, 7, 10 and 11 are not
addressed below because they attempt to reargue the
facts. In considering these four Exceptions, it is noted
that the Administrative Law Judge (ALJ) who heard
the testimony is in the best position to consider it and
assign to it an appropriate evidentiary value. The ALJ's
findings will not be disturbed unless they are not
supported by the record or result in a clearly unjust
decision. Based on the record in this case, the ALJ' s
findings challenged in these Exceptions are supported
by the record and do not result in a clearly unjust
decision. All other Exceptions are addressed
individually.
Exception 1
This exception requests that the Final Order recognize
the U.S. Environmental Protection Agency's opposition
to the proposed activity and note the need for a
separate permit under §404 of the Clean Water Act.
The only issue properly before this Tribunal is whether
the Petitioners are entitled, under the criteria of Part
303 of the Natural Resources and Environmental
Protection Act, to the permit for the requested activity.
Any permit issued under Part 303 does not obviate the
necessity of receiving, when applicable, approval from
52a
other federal, state or local government agencies. 1988
AACS, R. 281.923(6).
Exception 2
This exception contends the basis for the decision in the
Proposal for Decisions in conflict with Part 303 (MCL
324.30301 et seq.) and the Administrative Procedures
Act (MCL 24.201 et seq.). In support of this contention
the Department cites eight instances where it alleges
the ALJ's rulings on admissibility of evidence were
improper or the standard of review was inappropriate.
The first premise asserts the Department was
prejudiced by evidentiary rulings described as being
"arbitrary and capricious". A review of the rulings
indicates the questioning was properly limited to
correspond to the rules of evidence. Additionally, in
reviewing the record there is no support for the
contention that the exclusion of evidence, at any point
in the proceedings, was prejudicial to the Department's
case,
The second premise of this Exception, the standard of
review, is also without merit. The Petitioners are
entitled to a de novo review of whether they are
entitled to the permit based on the evidence adduced
during the hearing. This Tribunal is not constrained to
look only at the activity proposed in the application, or
the activity the Department will permit. Rather, a final
agency decision is rendered, based on the record, on
what activity, if any, is allowable under Part 303. By its
very nature a contested case hearing will generate
information from both Parties over and above that
utilized by Department staff in deciding on the permit
53a
application. To place a limit such as the Department
suggests would turn the process into an examination of
whether the Department erred in denying the
application. This result would eliminate the de novo
nature of this Tribunal's jurisdiction and mandate to
render a final agency decision. MCL 24.203(3) and MCL
24.285. The Department's seemingly narrow view of
this Tribunal's function as it relates to contested case
hearings and final agency decisionmaking is misplaced.
Exception 3
This Exception alleges the evidence does not support
the finding that the 112 unit proposal, with on-site
wetland enhancement as mitigation, is a feasible and
prudent alternative. However, a review of the record
supports the finding that under the review mandated
by § 30311 (2) (c) the subject wetland is of questionable
value, and the proposed enhancement will provide
greater benefit than any detriment resulting from any
wetland lost. Therefore, the feasible and prudent
alternative finding is appropriate under the criteria of
Part 303.
This Exception also goes to great length in arguing the
Department's real estate expert is more Qualified than
the Petitioners’ experts. As discussed above, this
constitutes an effort by the Department to reargue the
facts of the case. The finding will not be disturbed
unless it is not supported by, the record or results in a
clearly unjust decision. A review of the record does not
support reversing this finding.
Exception 4
54a
In this Exception the Department is accurate that the
Proposal for Decision lists only one of the three criteria
which the Department must determine in considering
mitigation proposals 1988 AACS, R 281.925 (Rule 5)
Rule 5 consists of two parts, the first deals with the
review of mitigation plans, the second with permit
conditions. However, contrary to the language of Rule
5, the Department argues, the practicality of mitigation
is not a proper issue for consideration.
Rule 5 sets forth the-conditions which must be met if
the Department is to impose mitigation as a condition of
a permit in order to improve on-site wetlands, or create
a new wetland to replace one lost to the proposed
activity. In this case, off-site mitigation to the extent
and nature desired by the Department is precluded.
The alternative plans proposed to either preserve a
portion of the wetland or enhance the remaining
wetland. Enhancement is described as dredging and
planting of diverse plant species in order to improve the
quality of the wetland. The record shows enhancement
would serve to improve water quality and increase the
diversity of plant life, wildlife in the area and the
aesthetics of the parcel. (Testimony of R. Leighton,
10/28/97, pgs. 395-399). Under the facts in this case, the
proposed enhancement constitutes mitigation.
_ The Proposal for Decision found that of the three
alternatives, the one containing enhancement is a
feasible and prudent alternative to the other two. This
finding is supported by the record, but the activity will
cause an unavoidable impact on the wetland. The next
step is to determine if sufficient and practical steps
have been taken to minimize the impact. The record
supports the finding that enhancement, as opposed to
55a
off site mitigation, is the practical method for
minimizing the proposed project's impact. The
Department's contention that the Petitioner could, in
the metropolitan area, obtain a land-locked parcel, a
small parcel, or a contaminated parcel for mitigation is
without merit. Given this, off-site mitigation is
impractical and due to the scope of the activity and the
configuration of the parcel, on-site mitigation is limited
to the enhancement of the remaining wetland. The
enhancement will, accorcing to the record, improve the
benefits derived from the existing wetland. Therefore,
enhancement serves to significantly lessen the
impairment to the wetland and mitigate the impact of
the proposed activity. .
The Department contends subsection (d) of Rule 5
supports the imposition of its "general rule", which was
covered in great detail during the hearing, that
mitigation is typically required at a ratio of 1.5 acres of
wetland created for every acre of wetland impacted.
However, the language of subsection (d) states"...
there must be no net loss of wetland resources."
(Emphasis added) . According to the record in this case,
little if any of the wetland resources enumerated in
§30302 (b) are currently being provided by the wetland.
It then follows that the enhancement of the wetland
will not diminish those resources, but rather they will
be improved upon. Thus the Department's position is
not supported by Rule 5, regardless of the length of
time it has been utilized or the number of applicants
who have agreed to the ratio. Every permit -application
must be reviewed on its merits, just as every mitigation
proposal must be reviewed in the context of the permit
application and facts of that particular situation. The
ratio may vary depending on the facts and there is no
56a
basis upon which to imply Rule 5 requires a 1.5 to 1
ratio.
In this case, the Petitioners have proposed mitigation
which will serve to improve existing wetland benefits,
which are currently minimal, to offset the loss of the
resource due to the proposed activity. Under the
permitting criteria of Part. 303 the proposed activity
will result in an unavoidable impact, to which a feasible
and prudent alternative does not exist. Pursuant to
subsection 4 of Rule 5, no feasible and prudent
alternatives which would avoid the loss of the resource
have been found to be practical. Therefore, the finding
that the on-site enhancement is practical, while off-site
mitigation is not, is proper.
Exception 5
The Department contends the U.S. Fish and Wildlife
Service's opposition to the proposed activity is
sufficient cause to reject the Proposal for Decision. This
Exception must fail for two reasons. First, the
Department's proofs regarding the activity's impact on
wildlife was addressed In the Proposal for Decision.
Second, this argument, in the context of whether the
Petitioner is entitled to a permit under Part 303, is
without merit.
Exception 8.
This Exception raises the significant legal point
regarding wetland dependency. The Department
argues only activity that must be performed in wetland
meets the wetland dependency test. Conversely, every
other permittable activity is not wetland dependent and
57a
must, therefore be conducted on upland.
Section 30311 (4) reads
(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 30302 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.
The operative term in 4(a) is "being located in the
wetland". The plain and unambiguous meaning of this
term is whether the activity must extend into the
portion of the parcel which is wetland. If the entire
parcel is wetland, the activity must occur in it so as to
allow a use of the parcel. If, as in this case, the existing
upland is not large enough to accommodate the feasible
and prudent alternative, impact on the wetland is
unavoidable. The Proposal for Decision found, and the
record supports, the proposal of 112 Units with
enhancement is a feasible and prudent alternative to
the Department's proposal of a project with less impact
in the wetland. Therefore, the proposed activity is
primarily dependent in being located in the wetland.
The Department asserts the foregoing analysis is
inconsistent with its staff's interpretation and
application of the wetland dependent provision. While
58a
deference is accorded the staff's position in that they
are responsible for the day-to-day administration of
Part 303, greater deference is given to the clear
language of the statute and prior interpretations of the
language by this Tribunal. Appeal of Robert C.
Brammer, Sr. , File Nos. 88-6-500 & 90-6-159W. To do
otherwise would lead to a result which is inconsistent
with the law. Based on the foregoing, the Finding of
Fact in the Proposal for Decision that the project is
wetland dependent is proper.
The purpose of this Final and Determination and order
is to determine if the Proposal for Decision should be
accepted. In reviewing the evidence, including the
hearing transcripts, the ALJ's finding that a 112 unit
development with on-site wetland enhancement is
consistent with the permitting criteria enunciated in
Part 308 is proper. Therefore, the Chief Administrative
Law Judge of the Office of Administrative Hearings
ADOPTS AND INCORPORATES BY REFERENCE
the Proposal For Decision dated August 12, 1998,
including the Findings of Fact and Conclusions of Law.
THEREFORE; IT IS ORDERED:
1. The Proposal For Decision dated August 12, 1998, is
adopted by reference and incorporated into this Final
Determination and order.
2. The application for a permit for File No. 93-14-502 is
DENIED.
3. A permit shall be issued consistent with the proposed
activity set forth in Exhibit P-79 and this Final Order
and Determination.
4. The Office of Administrative Hearings does not
59a
retain jurisdiction in this matter
Dated: September 30, 1998
Richard G. Lacasse, Chief Administrative Law Judge
Office of Administrative Hearings
60a
Lake St. Clair Advisory Committee
P.O. Box 272, Mt. Clemens, MI 48040
January 17, 2000
Walter A. Gauthier
Permit Evaluation Section B
Corps of Engineers
P.O. Box 1027
Detroit, Michigan 48231
Mr. Gauthier
In reference to JPN permit alication#99-250-002-1 by
Keith and June Carabell, the applicants do not provide
for adequate mitigation for the lose of the wetland.
Although mitigation of wetland is still an imperfect
science, duplicating a forested wetland makes the task
of mitigation much more complex if not impossible.
This is truly a unique piece of property within the
borders of Chesterfield Township. Although the recent
seasons have left this site somewhat dry, the property
as the ability to store, filter, and recharge the ground
water.
The Administrative Law Judge’s decision to overrule
the MOEO appeared to be based on housing needs of
the area and providing the applicants with a profit on a
speculative venture. The applicants four witnesses
included land and real estate consultants plus a judge’s
report also mentions that the area is fully developed
and, therefore, there is virtually no remaining wetland.
Does this mean that a wetland in this area is of no value
for the community? Furthermore, the report views the
forested wetland as unproductive and could be replaced
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with a man-made/enhanced wetland.
The Lake St. Clair Advisory Committee stands by its
decision made in 1993 to request that the application be
denied.
Respectfully,
Donald Gunning, Chairman
Lake St. Clair Advisory Committee
Ce: MUCC Wetlands Watch
Elaine Fischoff, Asst. Attorney General
Mark Richardson, Asst. Macomb Co. Prosecutor
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UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
REGION 5
77 WEST JACKSON BOULEVARD
CHICAGO, IL 60604-3590
MAR 07 2000
LTC Robert J. Davis,
District Engineer
U.S. Army Corps of Engineers,
Detroit District
P.O. Box 1027
Detroit, Michigan 48231
Re: Joint Public Notice, File No: 99-250-002-1, Keith
and June Carabell
Dear Colonel Davis:
The U.S. Environmental Protection Agency (EPA)
reviewed the Public Notice issued by your office, in
which Keith and June Carabell request your
authorization to discharge approximately 57,500 cubic
yards of fill into 15.87 acres of wetlands in Chesterfield
Township, Macomb County, Michigan. The applicants
propose to dredge and replant 3.74 acres of the
remaining wetlands on the 19.61 acre parcel as
compensatory mitigation for the proposed project, the
purpose of which is, to construct a condominium,
development.
In response to the Michigan Department of
Environmental Quality's (MDEQ) Public Notice No. 93-
14-602, EPA provided combined comments for itself
63a
and the U.S. Fish and Wildlife Service (FWS) to the
MDEQ, on March 4, 1994, objecting to the proposed
project (copy enclosed). Our comments asserted that
insufficient information was provided to determine
compliance with the Clean Water Act (CWA) Section
404(b)(1) Guidelines, based on the applicants failure to
provide an adequate alternatives analysis, failure to
minimize wetland impacts and proposal to create
compensatory mitigation that was neither adequate nor
in-kind. By order of an administrative law judge, the
MDEQ issued the permit on November 13, 1998. EPA
sustained Federal objections on November 23, 1998,
effectively transferring permitting authority to you,
pursuant to CWA Section 404(j) and 40 CFR Part
233.500).
We note that the proposal before you is essentially
identical to that authorized by the MDEQ on November
13, 1998. As a result of the applicant's repeated failure
to address the concerns raised by the Federal agencies
in 1994, and the significant proposed impact to the
Nation's wetland resources, EPA has no choice but to
object to the current proposal. Insufficient information
has been provided to determine compliance with the
Clean Water Act Section 404(b\(1) Guidelines,
therefore, EPA recommends that the proposed permit
be denied unless the applicant provides an adequate
alternatives analysis, demonstrates that wetland
impacts have been avoided and minimized to the
maximum extent practicable, and provides an
acceptable mitigation plan to construct in-kind wetland
mitigation at a minimum ratio of 1.5:1.
Thank you for the opportunity to provide comments on
this proposal. Please address any questions to Gerald
64a
D. Winn of my staff at (312) 886-2777.
Sincerely,
Jo Lynn Traub
Director, Water Division Enclosure
ec: Bob Deroche, Corps of Engineers, Detroit District
_ Jenny Wilson, F'WS East Lansing.
65a
United States Department of the Interior
FISH AND WILDLIFE SERVICE
East Lansing Field Office (ES)
2631 Coolidge Road
East Lansing, Michigan 48823
March 8, 2000
Walter A. Gauthier, Chief
Permit Evaluation Section E
Regulatory Branch
U.S. Army Corps of Engineers
P.0. Box 1027
Detroit, MI 48231
Re: Corps File No. 99-250-002-1, applicant Keith and
June Carabell
Dear Mr. Gauthier:
We have reviewed the above referenced joint public
notice to authorize the placement of fill materials in
wetlands. The proposed project is in section 21, T3N,
R14E, Chesterfield Township, Macomb County;
Michigan. These comments are prepared under the
authority of the Fish and Wildlife Coordination Act and
the Endangered Species Act of 1973 (Act), as amended.
They are also consistent with the Service Mitigation
Policy, :
The applicant proposes to discharge approximately
57,500 cubic yards of material within a 15.81 acre
wetland area for construction of a 112 unit townhouse
condominium complex on a 19.61 acre parcel. The
applicant also proposes to dredge and replant 3.74 acres
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of the remaining wetlands on the parcel as Mitigation
for the project.
Fish and Wildlife Coordination Act Cumments.
General Comments
We are opposed to the development of non-water
dependent facilities, such as condominiums, in wetlands
when fish and wildlife resources would be adversed
impacted and alternatives are available. Wetlands in a
suburban location, such as the ones present on the
project site, are becoming increasingly scarce and
provide refuge for both resident and migratory wildlife
in this area.
The plans for this project do not appear to be
substantively different from project we reviews or this
site under the state File Na 93-14-602W. As we stated
previously, the site contain palustrine forested
wetlands throughout the project area. These wetlands
serve as valuable habitat for songbirds, raptors, small
mammals, amphibian, reptiles, and aquatic and
terrestrial invertebrates by providing food, water,
cover from predators, and shelter during severe
weather. In addition these wetlands likely retain and
filter surface water runoff, thereby reducing
downstream flown during storm events in the adjacent
streams and improving water quality in adjacent water
bodies.
SPECIFIC COMMENTS
Potential Project Impacts
The applicant's proposal would directly impact
67a
approximately 15.97 acres of forested wetland through
filling for the proposed condominium development and
an additional 3.74 acres by dredging for the mitigation
project. While some species of wildlife may be able to
tolerate habitat provided by the proposed condominium
development, the proposed wetland filling and
concomitant tree removal would displace or destroy
animal species associated with the up lands and
wetlands to be impacted by this project. In addition, the
proposed project would create large areas of
impermaeable surfaces on the site. Runoff from these
areas would likely contain contaminants such as oil and
grease from parking lots and fertilizers or pesticides
from landscaping activities. runoff, if not adequately
addressed, may become a contaminants source to, the
remaining wetlands on the site and potentially to
waters downstream, including Lake St. Clair, as the
runoff passes off the property by means of the adjacent
drain.
Alternative Analysis
Significant wetland losses have taken place in Michigan
since the early 1800s. The wetlands that remain
continue to be lost incrementally through draining and
filling for various purposes throughout the state.
Forested wetlands are of particular concern since, once
altered, they may take decades to regenerate or may
not return at all. Macomb County has lost
approximately 71% of the acreage of mixed hardwood
wetlands once present and has lost 73% of overall
wetland acreage county-wide (Comer 1996).
In light of the magnitude of these losses, we
recommend you rigorously explore with the applicant,
68a
less environmentally damaging alternatives to the
project as currently proposed. It does not appear the
applicant has considered alternate, non-wetland sites
for the proposed non-water dependant activities. In
addition, it does not appear wetland impacts have been
avoided on-site to the maximum extent practicable. We
recommend exploring upland development, on or off-
site, and reconfigurations of buildings and associated
infrastructure on-site as means to further avoid or
minimize wetland impacts.
Adequacy of Proposed Mitigation
We understand the applicant has proposed to dredge
and replant 3.74 acres of the remaining wetlands on the
parcel as mitigation for project impacts. We submit that
this proposal would not replace the functions and values
of the 15.87 acres of forested wetlands lost as a result of
the proposed. project. In addition, we contend that the
applicant's proposal to excavate existing wetlands
would merely exchange one wetland type for another
(i.e., exchange forested with emergent or open water
habitat thus exacerbating the loss of forested wetland
functions and values in this area.
We recommend, if you determine that wetland impacts
on the project site are in the public interest and an
alternatives analysis clearly shows that those impacts
have been avoided and minimized to the maximum
practicable extent, that you require the applicant to
provide for agency consideration in advance, a detailed
mitigation plan that meaningfully replaces lost wetland
function and values. In addition, we normally
recommend exhausting all opportunities for on-site, in-
kind (i.e., forested) replacement of wetland functions
69a
and values before considering off-site or out-of-kind
opportunities for compensatory mitigation, Since this
site in already wetland, we continue to recommend in-
kind replacement of any authorized wet land impacts,
however, we recommend locating replacement
wetlands within the watershed and in as-close
proximity to the affected wetlands as possible but off-
site to avoid additional impacts to on-site wetlands.
Finally, we recommend that any mitigation proposal
provided for consideration include:
o A commitment to replace the lost functions and values
of-any impacted wetlands. (We generally recommend
an acreage replacement ratio of a minimum of two acres
replaced, for each one acre impacted for forested
wetlands, although this ratio varies if the mite anon is
out-of-kind or not on-site or in close proximity to the
impacted wetlands.)
o The detailed identification and characterization (type,
size, dominant vegetation, soil type, etc.) of all wetlands
located in the area of the proposed project.
0 The identification of resident and migratory fish and
wildlife resources occurring or reproducing in the
affected area of the proposed project.
o The exact location of mitigation sites and the
identification of soil types in these areas sites to be
created restored, enhanced or preserved should be
clearly labeled and a map showing the locations and
boundaries should be included with the proposal.
o A plan to control the establishment of undesirable
70a
exotic and invasive plant species such as purple
loosestrife (Lythrum salicaria), common buckthorn
(Rhamnus cathartica), and reed grass (phragmites
australis) .
o A plan, with performance criteria, to monitor the
progress of the wetland habitat mitigation following
construction for a minimum period of five years. The
plan should include a sampling _ protocol and a
timetable for the habitat monitoring that includes the
time of year and the frequency of sampling. Annual
monitoring reports should be submitted. Termination of
monitoring after the appropriate time period would be
contingent upon Corps of Engineers concurrence that
the wetland mitigation site exhibits a strong likelihood
of successful replacement of the impacted wetland
habitat's functions and values.
o A plan to implement appropriate measures for
correcting or improving the biological productivity of
the wetland mitigation habitats for the duration of the
monitoring period in the event that performance
criteria are not met. This would include planting
desirable hydrophytic vegetation, controlling exotic and
invasive plant species, and implementing other
measures, as necessary, to achieve successful
mitigation.
o The development of procedures to protect, in
perpetuity, any wetland habitat remaining on the
project site and the compensatory wetland mitigation
areas by a conservation easement recorded as a deed
restriction.
Endangered Species Act Comments:
Tla
Information in our files indicates the endangered
Indiana bat (Myotis sodalis) may occur in the project
area. Indiana bat is listed as endangered pursuant to
the Act. It is also protected by the Michigan
Department of Natural Resources (MDNR) through
Part 365, Endangered Species Protection of the
Natural Resources and Environmental Protection Act,
1994, PA 451. Please contact Lori Sargent of the
MDNR. at (517) 373-1263 with questions concerning the
protection of threatened and endangered species under
state law.
Summering Indiana bats roost in trees in riparian,
bottomland, and upland forests. Roost trees generally
have exfoliating bark which allows the bat to roost
between the bark and bole of the tree. Cavities and
crevices in trees are also used for roosting. A variety of
tree species are known to be used for roosts. Structure
(i.e. Crevices or exfoliating bark) is probably more
important than the species of tree in determining if a
tree is a suitable roost site.
Male bats disperse throughout the range and roost
individually or in small groups. In _ contrast,
reproductive females form larger groups, referred to as
maternity colonies. Female Indiana bats exhibit strong
site fidelity to summer roosting and foraging areas, that
is, they return to the same summer Range annually to
bear their young. Traditional summer sites are
essential to the reproductive success of local
populations.
Indiana bat maternity sites generally consist of one-or
more primary maternity roost trees which are used
repeatedly by large numbers of bats, and varying
72a
numbers of alternate roosts, which may be used less
frequently and by smaller numbers of bats (Kurta et al.
1993). Bats move among roosts within a season and
when a particular roost becomes unavailable from one
year to the next. It is not known how many alternate
roosts must be available to assure retention of a colony
within a particular area, but large, nearby forest tracts
appear important (Callahan 1993). In addition to having
exfoliating bark, roost trees must be of sufficient
diameter. Trees in excess of 16 inch diameter at breast
height (dbh) are considered optimal for maternity
colony roost sites, but trees in excess of 9 inch dbh
appear to provide suitable maternity roosting habitat
(Romme et al. 1995). Male Indiana bat have been
observed roosting in trees as small as 3 inch dbh.
' As required by Section 7 of the Act and its
implementing regulations, you must determine whether
issuance of a permit for the proposed activities may
affect species listed as threatened or endangered
pursuant to the Act. If issuance of a permit may affect a
listed species, you must consult with our East Lansing
Field Office. Enclosure A briefly describes a federal
age”: y's basic responsibilities and requirements under
the Act.
We recommend, at a minimum, a qualified individual
survey the project site for the presence of suitable
Indiana bat habitat. If the survey determines that
suitable habitat in present on-site, we recommend you
do not issue a permit for the proposed project or any
other project that may affect wetlands on this site until
you ensure protection of the bats and have concluded
consultation with this office.
73a
Summary Comments:
We recommend you do not issue a Department of the
Army permit for the project as proposed until our
endangered species and wetland concern are removed.
The applicant has not clearly demonstrated that less
environmentally damaging, or upland alternatives are
unavailable. We further recommend a _ complete
alternatives analysis and meaningful wetlands
mitigation plan be prepared and provided for review if
continued consideration is accorded this or any modified
proposal that would affect these wetlands. Finally, we
recommend you consult with our East Lansing Field
office regarding the potential effects of the proposed
project on Indiana bat if suitable habitat is present on-
site.
We appreciate the opportunity to provide our resource
protection recommendations. If you have questions,
please contact Jenny Wilson of this office at 517-351-
6326 or the above address.
Sincerely.
Craig A. Czarnecki
Field Supervisor
CC: Michigan Department of Environmental Quality,
Land & Water Management Division, Livonia, MI
(Attn: Mike Nurse)
Michigan Department of Natural Resources, Wildlife
Division, Lansing, MI (Attn. Lori Sargent)
Literature Cited
T4a
Callahan, E.V., III. 1993. Indiana bat summer habitat
requirements. M.S. Thesis. University of Missouri
Columbia. 84 pp.
Comer, P.J. 1996. Wetland Trends in Michigan Since
1800: a preliminary assessment. Report to the U.S.
Environmental Protection Agency, Water Division, and
the Land and Water Management Division, Michigan
Department of Environmental Quality. Michigan.
Natural Features Inventory, Lansing, MI. 76pp.
Kurta, A., D. King, J.A. Teramino, J.M. Stribley and
K.J, Williams. 1993. Summer roosts of the endangered
Indiana bat (Myotis sodalis) on the northern edge of its
range. Am. Midl. Nat. 129:132-138.
Romme, R. C. , K. Tyrell, and V. Brack, Jr. 1995.
Literature summary and habitat suitability index
model: components of summer habitat for the Indiana
bat (Myotis sodalis). Report to Indiana Department of
Natural Resources, Federal Aid Project E-1-7, Study
No, 8, 38pp.
T5a
FEDERAL AGENCIES’ RESPONSIBILITIES
UNDER SECTION 7a) AND 7 (c) OF THE
ENDANGERED SPECIES ACT
SECTION 7 (a) — Consultation/Conference
Requires:
1. Federal agencies to utilize their authorities to carry
out programs to conserve endangered and threatened
species;
2. Consultation with U.S. Fish & Wildlife Service
(Service) when a federal action may affect a listed
endangered or threatened species to ensure that any
action authorized, funded, or carried out by a federal
agency is not likely to jeopardize the continued
existence of listed species or result in the destruction or
adverse modification of critical habitat. The process is
initiated by the federal agency after they have
determined if their action may affect (adversely or
beneficially) a listed species: and
3. Conference with Service when a federal action is
likely to jeopardize the continued existence of a
proposed species or result in destruction or a adverse
modification of proposed critical habitat.
SECTION 7 (ec) - Biological Assessment for Major
Construction Projects'
' "Major Construction project" means any major federal
action which significantly affects the quality of the
human environment as referred to in NEPA (requiring
an EIS) designed primarily to result in the building or
76a
Requires federal agencies or their designees to prepare
a Biological Assessment (BA) for major construction
projects. The purpose of the BA is to identify any
proposed and/or listed species which is/are likely to be
affected by a construction project. The process is
initiated by a federal agency in requesting a list of
proposed and listed threatened and endangered species.
The BA should be completed within 180 days after its
initiation (or within such a time period as is mutually
agreeable). If the BA is not initiated within 90 days of
receipt of the species list, please verify the accuracy of
the list with the Service. Sec. 7(d) states agencies shall
not make any irreversible or irretrievable commitment
of resources during the consultation process which
would result in violation of the requirements under
Section 7 (a) (2). Planning, design, and administrative
actions may be taken; however, no construction may
begin.
To complete the BA, your agency or its designee should
(1) conduct an onsite inspection of the area to be
affected by the proposal which may include a detailed
survey of the area to determine if the species is present
and whether suitable habitat exists for either
expanding the existing population or potential
reintroduction of the species (2) review literature and
scientific data to determine specivs distribution, habitat
needs, and other biological requirements; (3) interview
erection of man-made structures such as dams,
buildings, roads, pipelines, channels, and the like. This
includes federal actions such as permits, grants,
licenses, or other forms of federal authorization or
approval which may result in construction.
T7a
experts including those within the Service, state
conservation departments, universities, and others who
may have data not yet published in scientific literature;
(4) review and analyze the effects of the proposal on the
species in terms of individuals and _ populations,
including consideration of cumulative effects of the
proposal on the specics and its habitat; (5) analyze
alternative actions that may provide conservation
measures; and (6) prepare a report documenting the
results, including a discussion of study methods used,
any problems encountered, and other relevant
information. Upon completion, the report should be
forwarded to; Field Supervisor, U.S. Fish & Wildlife
Service, 2651 Coolidge Rd., East Lansing, MI 48823-
6316.
78a
March 14, 2000
Walter A. Gauthier
Permit Evaluation Section B
Corps of Engineers
P.O. Box 1027
Detroit, MI 48231
Re: Comments on Permit Application File No. 99-250-
002-1 Discharge of Fill Material in Wetlands,
Chesterfield
Township MI
Dear Mr. Gauthier:
These comments are submitted on behalf of the Walter
Quality Unit of the Macomb County Prosecutor’s
Office. The Water Quality Unit is responsible for civil
and criminal enforcement of environmental and public
health statutes and ordinances in Macomb County by
resolution of the Macomb County Board of
Commissioners.
Keith and June Carabell are seeking a permit under
Section 404 of the Clean Water Act to the Clean Water
Act to fill a15.87 acre wetland area for construction of a
112 unit townhouse condominium development. The
Carabells propose to dredge and replant 3.74 acres of
wetland remaining wetlands on the parcel as mitigation
for the project. The parcel is located southeast of the I-
94 and M-29 interchange east of Donner Road in
Chesterfield Township, Macomb County Michigan.
The approximately 16 acres of wetland which would be
filled by the proposed project and the approximately 4
79a
acres mitigation area are high quality palustrine
forested wetland characterized by a rich diversity of
plant and animal life. In effect, the applicant proposes
to eliminate over 19 acres of forested wetland area and
replace it with 4 acres of less-valuable emergent
wetland. This simply cannot be permitted under
Section 404. The loss of this high quality wetland area
would have an unacceptable adverse effect on wildlife,
water quality, and conservation of wetlands resources.
This parcel is one of the last remaining sizable areas of
forested wetland in Chesterfield Township. For this
reason alone, its destruction would have a devastating
impact on wildlife habitat in the area. Runoff from the
condominium development would further degrade
surface water resources in the area. These detrimental
impacts completely outweigh any conceivable benefits
which might be derived from the project. In addtion,
the applicant has not shown that the project is wetland-
dependent; that alternatives to the westland site are
not available; or that mitigation measures adequate to
compensate for the loss of this wetland cannot be
accomplished.
The Water Quality Unit of the Macomb County
Prosectuor’s Office respectully request that the permit
application be denied.
Sincerely,
Mark A. Richardson
Assistant Macomb County
Prosecuting Attorney For Water Quality
CC: Carl J. Malinga
Donald Gunning
Sla
CELRE-ET-RG 99-250-002-1
May 5, 2000
MEMORANDUM TO: File
SUBJECT: INSPECTION REPORT of CARABELL
CONDOS
Inspection Date: 05-May-2000
Authority: 404
Jurisdiction (State transferred Section 404 water);
Noncompliance N/A
Unauthorized Work N/A
Photographs NO
Application for Work Yes
Work in Progress. NO
Remedial Action NIA
APPLICANT (Owner):
Carabell, Keith and June
c/o Tim Stoepker, Abbot
300 River Place, Suite 3000
Detroit, MI 48207
Work: (313) 566-2500
Home:
LOCATION:
Address: Donner Road
City: Chesterfield Township
County: Macomb
State: Ml
Sec: 21
Twp:3N
Rge:14E
dZa
JURISDICTION:
Waterway: in wetlands adjac nt to
First Section 10 Waterway: Lake St. Clair
Navigable: N Wetland: Y Above: Headwaters: N
Waterward of OHWM: No
Potential to influence course, condition, capacity of
Section 10 waters: Yes
Designated Wetland on Quad, NWI dr Soil Survey: Yes
Wetland adjacent to other waters: No
(Complete Adjacency Section)
Tributary to navigable water: No
INVESTIGATOR'S SUMMARY (descriptions of work
including equipment, conversation summaries,
observed/predicted impacts of work, any necessary
remedial or corrective action, need to. take
discretionary authority): Purpose of the visit was to
determine if the site supports interstate commerce.
Project manager Bob Deroche was accompanied to the
site by Dr. Tom Allenson of the Detroit District staff.
Dr. Allenson is considered the district's most
knowledgeable bird men. Many species of neo-tropical
migrants, as well as other migratory birds were
identified by sight and/or call. It was determined that
the site does support interstate commerce. See
attached bird listing.
DETERMINATION OF ADJACENCY
Hydrological connection(s) with waterway: Site is
approximately 1.2 miles (straight distance) from Lake
St. Clair, however, Sutherland-Cemig Drain runs
adjacent to the site. The Drain flows continuously and
flows into Auvase Creek which flows into Lake St.
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Clair Wetland's elevation above waterway: According
to software “Terrain Professional", the site is
approximately 5 feet above the mean Lake St. Clair
elevation.
INSPECTOR: DEROCHE
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Detroit District
U.S. Army Corps of Engineers
File Number 99-250-002-1
Department of the Army Permit Evaluation
CARABELL CONDOS
This document constitutes my Environmental
Assessment, Public Interest review summary, and, if
applicable, my factual and compliance determination
according to the 404 (b) (1) Guidelines for the work
- proposed for permit. It was prepared from a generic
master document that facilitated consideration of the
range of all possible impacts from projects within the
purview of the Regulatory Program of the Army Corps
of Engineers, in accordance with 33 CFR Part 320 33
CFR Part 325 Appendixes B and C, and 40 CFR Part
230.
I. Application Processing
A. Name of Applicant: Keith and June Carabell,
Detroit, MI.
Attorney/Agent for Applicant: Mr. Timothy A.
Stoepker, Law Offices of Abbott, Nicholson, Quilter,
Esshaki, & Youngblood, 300 River Place, Suite 300,
Detroit, Michigan 48207-4225.
Environmental Consultant: Robert Leighton
Associates, 167 Little Lake Drive, Ann Arbor,
Michigan 48103.
B. Work Description: The most recent plans showing
the proposed work are attached (Encl. 1.). The
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applicant proposes to discharge approximately 57,500
cubic yards of material within a 15.97 acre wetland area
for construction of a 112-unit townhouse condominium
development. As mitigation, the applicant proposes to
dredge and replant 3.74 acres of the remaining
wetlands on the parcel.
The applicant originally applied to Michigan
Department of Environmental Quality (MBEQ) for a
permit to discharge fill material on the subject property
for construction of a 200-unit condominium complex.
That application was denied in 1987 and the denial
upheld in Michigan Court of Appeals. The current
application was submitted to MDEQ in 1993 for an
alternate plan that would result in a _ 130-unit
condominium complex on the parcel. Again, this was
denied hy MDEQ in 1994. The denial was based on the
findings that “the proposed activity would have a
significant adverse impaci on the natural resources,
public interest and public trust held in the subject
wetlands”. They also cite lack of water dependency,
lack of minimization, available upland alternatives,
Environmental Protection Agency (EPA) and
Department of the Interior, Fish and Wildlife Service
(F WS) objections, and lack of mitigation for reasons for
denial. A state contested case hearing was held in 1998
before Administrative Law Judge Richard A. Patterson
who determined that a permit for a 112-unit alternative
on the site should be issued. The MDEQ permit was
issued in November of 1998 as directed by Judge
Patterson. The permit was issued over outstanding
EPA objections; therefore, the state permit does not
fulfill requirements for a federal Section 404 permit
under the Clean Water Act.
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C. Purpose: The applicant’s stated purpose for the work
is preparation of a private lot for construction of a
condominium complex. Our interpretation of the project
purpose relevant to alternatives in NEPA Regulations
(Appendix B, 7. ) and Regulations at 320.4(a) (2) (ii),
relevant to necessity in the context of 320.4(b) (1), and
as defined in the 404(b) (i) Guidelines and subsequent
guidance as “overall project purpose” is to construct a
large multi-family condominium development within
the Macomb or St. Clair County, Michigan area.
D. This application for a Department of the Army
permit is being reviewed under authority delegated to
the District Engineer by the Secretary of the Army and
the Chief of Engineers by Title 33, Code of Federal
Regulations, Part 325.8, pursuant to Section 404 of the
Clean Water Act.
E. Public Involvement: A list of the agencies, interested
groups, and the public consulted regarding the project
is attached to the Public Notice dated February 8, 2000
-which expired on March 9, 2000 (Encl. 1).
F. Federal, State, Local, and Public Comments
Relating to the Activity:
1. Federal:
a. U.S. Environmental Protection Agency (EPA) : The
EPA responded by letter dated March 7, 2000. They
object to issuance of a federal permit unless the
applicant provides an adequate alternatives analysis,
demonstrates that wetland impacts have been avoided
and minimized to the maximum extent practicable, and
provides and acceptable mitigation plan to construct in-
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kind wetland mitigation at a minimum ratio of 1.5:1
(EPA, Encl. 2). The EPA cites “the significant proposed
impact to the Nation’s wetland resources”, as a reason
for objecting to issuance of a permit, as well.
b. U.S. Fish and Wildlife Service (FWS): The FWS
responded by letter dated March 14, 2000. They object
to issuance of a federal permit because fish and wildlife
resources would be adversely impacted through
elimination or alternation of habitat and potential
contamination of water due to runoff from the large
areas of impermeable surfaces on the site. FWS states
that Macomb County has lost 71% of its historical
acreage of mixed hardwood wetlands and 73% of overall
wetland acreage that were at one time present and that
wetlands in suburban locations are becoming
increasingly scarce. These wetlands are important
because they provide refuge for both resident and
migratory wildlife in this area. In addition, they
express concerns over the potential project impacts to
the federally-listed as endangered Indiana Bat (Myotis
sodalis). They recommend a survey of the project site
for the presence of suitable Indiana Bat habitat, as well
as a wetiand mitigation plan for their review should the
Corps of Engineers proceed with consideration of this
or any modified proposal that would affect the wetlands
on the parce! (F WS, Encl. 3).
FWS points out that the proposed wetland filling and
tree removal would displace or destroy animal species
associated with uplands and wetlands. They submit
that the proposed mitigation would not replace the
many lost functions and values, but would merely
exchange one wetland type for another, exacerbating
the loss of forested wetland functions and values in the
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area. The Service requests the opportunity to review
any mitigation plan submitted, should the Corps
determine that issuance of a permit is not contrary to
the public interest.
ce. Congressional: No interest was expressed by any
member of Congress.
2. State:
a. Michigan Department of Environmental Quality
(MDEQ) denied the original permit application on
February 22, 1994 (MDEQ, Encl. 4). The proposal
requested a permit for fill in 15.96 acres of wetlands for
the construction of 130 condominium units on the
parcel. As a result of a Contested Case Hearing with
MDEQ, a Final Determination and Order was issued on
September 30, 1998 (MDEQ, Encl.5). The Order
resulted in issuance of an MDEQ permit on November
13, 1998 for the proposal currently being reviewed for a
DA permit (MDEQ, Encl. 6). We, therevore, presume
that the project is consistent with the Coastal Zone
Management Act and that Section 401Water Quality
Certification is issued or waived.
b. State Historic Preservation Officer (SHPO) : SHPO
submitted a letter dated June 7, 2000 stating that no
historic properties are affected within the area of
potential effects of this undertaking (SHPO, Encl. 7).
3. Local : One letter was received from Mark A.
Richardson, assistant Macomb County Prosecuting
Attorney for Water Quality, on behalf of Macomb
County requesting the permit for the proposed work be
denied (MCPA, Encl. 8). The letter states that the
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destruction of one of the last remaining sizeable
forested wetland areas in Chesterfield Township would
have a devastating impact on wildlife habitat in the
area and that runoff from the condominium
development would further degrade surface water
resources in the area. He states the applicant has not
shown that the project is wetland-dependent; that
alternatives to the wetland site are not available; or
that mitigation measures adequate to compensate for
the loss of this wetland cannot be accomplished.
The City of Detroit Water and Sewerage Department
submitted a letter stating there is no apparent conflict
with any department utilities (DWSD, Encl. 9).
4. Public: We received an objection letter from Mr.
Donald Gunning on behalf of the Lake St. Clair
Advisory Committee dated January 17, 2000 requesting
the permit application be denied (LSAC, Encl. 10). The
objector states that the forested wetland has the ability
to store, filter, and recharge the groundwater and
questions the administrative law judge’s report on the
value of the remaining few wetlands within the
Township.
G. The applicant was furnished copies of all timely
objections, by letter dated March 20, 2000 and was
afforded the opportunity to resolve/rebut them. We
also directed the applicant to specifically provide a
survey for the existence of the federally-listed as
endangered Indiana Bat (Myotis sodalis) and of suitable
habitat for the species and to provide their analysis of
available alternatives to filling in this forested wetland
(Enel. 11).
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The applicant’s attorney responded to the
objections/request by letters dated March 28, 2000 and
May 23, 2000 (Encls. 12&13, respectively). Main points
of the rebuttal were:
i) The FWS previously responded to MDEQ’s public
notice with a letter dated January 14, 1994 stating
there were no listed species within the project area.
The project consultant walked the property on
numerous occasions and has not seen the Indiana Bat.
In addition, there are no laws, regarding wetland
regulations. These materials, as well as other
alternative arguments discussed in the court sessions
have been provided (Encl. 14).
ii) The feasibility materials were provided in the
Administrative Law trial and establish compliance with
applicable statutes and regulations. These materials, as
well as other alternative arguments discussed in the
court sessions have been provided (Encl. 14).
II. Environmental © -**ing:
A. Description of the Area: Lake St. Clair is part of the
Great Lakes drainage system, lying between the St.
Clair and the Detroit Rivers. The Lake is bounded by
S.E. Michigan and the province of Ontario area land
use is primarily residential with agriculture prevailing
to the north and heavy industry nearby in the Detroit
Metropolitan area. This proximity to the Detroit
population center, coupled with abundant water-based
recreational opportunities afforded by Lake St. Clair
and connecting waterways, generates a great demand
for marinas, and waterfront and canal developments.
Macomb County has experienced a population increase
9la
of 3.3% from 1980 to 1990 (694,6000 to 717,400), while
Chesterfield Township experienced a 43.3 % increase
(18,232 to 25,905) during the same period.
At the time of the glacial retreats, Lake St. Clair
extended well inland from its current location, thereby
rendering a large portion of Macomb and St. Clair
Counties as lake bottom. This accounts for the large
expanses with little topographical relief in the county.
As the shoreline receded to its current location, minor
beach ridges remained behind which were many
wetland pockets. Most of these pockets drain towards
the any arms of the lake which extend up to many miles
inland.
B. Waterway Characteristics: Shorelines in the area
are, for the most part, armored with the exception
being a fairly large wetland area located approximately
7 miles away near the mouth of the Clinton River. The
Clinton River is the largest river flowing through the
County with a drainage area of about 734 square miles.
Its average flow is 523 cfs and the maximum-recorded
discharge was 21,000 cfs. The Belle and Salt Rivers
along with Black and Swan Creeks contribute to the
area’s drainage but possess considerably smaller
drainage areas than the Clinton River. Water levels in
Lake St. Clair can fluctuate up to five feet over a long-
term basis, causing significant shoaling problems
during low levels, and high flood damages during high
levels. Water quality is considered fair and safe for
body contact during most times of the year. Combined
sewage/storm water outfalls, particularly from the
Clinton River, tend to discharge contamination into the
lake after storm events causing officials to close the
public swimming beaches due to high coliform courts.
92a
C. Project Area: The project site is located
approximately one mile from the shoreline of Lake St.
Clair proper. The property is a 19.61 acre triangular
shaped parcel containing mostly forested wetland. A
ditch has been excavated along the southeast portion of
the property (the hypotenuse of the triangle) that runs
into the Sutherland-Oemig Drain, which empties into
Auvase Creek, which then empties into Lake St. Clair.
A total of three site inspections have been performed
on the property. The first on October 12, 1999 for
permit evaluation purposes; the second on May 5, 2000
for migratory bird use documentation; and the third on
August 1, 2000 to determine if the area contained
Indiana Bat habitat (Encls. 15, 16, 17, respectively).
Due to the fact that the influence of Lake St. Clair has
been documented on the nearby Salt River over a mile
up the reaches of the river (to 23 Mile Road), it is likely
that same influence is realized on the Auvase Creek,
and continuing up the Sutherland-Oemig Drain that
distance in the landscape, as well.
1. Cultural Characteristics: Presently, there are no
structures on the site. The site is bordered by Donner
Road to the west, beyond which is a large residential
subdivision between the site and Interstate 94; a vacant
field to the north, beyond which lie several
condominium and apartment complexes between the
site and 23 Mile Road; a residential subdivision to the
south continuing on to Lake St. Clair; and a vacant
woodlot to the east, beyond which lie several residential
subdivisions and then a large woodlot, slated for
development into a residential subdivision.
2. Physical/Chemical Characteristics: There is no
evidence of any existing erosion problem/flood damage
93a
at the site, although there is evidence of ponding, i.e.,
watermarks on trees, and water stained leaves on the
forest floor. Wetlands located on the parcel likely
provide floodwater storage due to the fact that the site
contains clay soils and the parcel appears to be a
depressional area. Spoils from the ditch were side cast,
creating a dike which serves to block immediate
drainage out of the parcel and holding water until its is
quite high. By holding the water which falls onto the
approximately 20 acre site and preventing it from
immediately entering the surface water system, flood
peaks to downstream areas are reduced.
Soils within the proposed work area consist of very
friable clay loam at the surface beneath which are
primarily clay soils.
3. Biological characteristics:
a. The Existing/Long term Vegetation and Habitat
values for each portion of the work site are as follows:
Upland portions of the property: Of the 19.61 acres on
the parcel, less than four acres are designated upland.
A small, 200’ deep, triangular shaped area in both the
southwest and northeast corners of the triangular
shaped lot and an upland ridge between the two formed
as a result of side casting from the excavation of the
1,8000’ ditch alongside the southwest to northeast side
of the lot represent the limit of the uplands. Running
parallel and adjacent to this upland ridge is an overhead
power line with utility poles. The utility corridor has
been kept trimmed of trees so that only small woody
and herbaceous vegetation remains. The area is, heavily
vegetated with deciduous shrubs, including different
94a
species of berries, and wild grapevines. The uplands at
either end of the lot are densely vegetated with shrubs,
saplings and trees. These upland areas on site provide
romping, resting, and feeding habitat for a large variety
of mammals, resident and migratory passerine birds,
raptors and game birds, as well as amphibians and
reptiles. The area acts as a green space within an area
that is heavily populated on three sides. White-tailed
deer were seen running between the wetlands and
uplands on this site during two of the site visits. The
upland areas in two of the three corners of the parcel
are not slated for any development and, in fact, are to
remain in their natural state. It appears as though the
upland adjacent to the ditch will be graded for
landscaping purposes (see Encl. 1).
Wetland portions of the property: The wetlands
located on the parcel are forested and likely provide for
wildlife diversity/abundance and aquatic
diversity/abundance due to the fact that there is
evidence of ponding for long periods of time, it is a large
parcel relatively void of human disturbance, and it is in
the middle of an area where most surrounding uplands
and wetlands have been farmed and/or filled for
residential construction. The area shows evidence of
ponding in large areas for long enough periods to stain
leaves on the forest floor and to create watermarks on
trees. There are large numbers of deadfall trees and
many trees with buttressed trunks, a morphological
adaptation for surviving in saturated soils. There is
very little in the way of understory within the woodlot.
Many migratory birds were noted within the wetland
areas as well as whitetail deer and evidence of other
small mammals, i.e., scat and tracks. The wetland
provides excellent habitat for large and small mammals,
95a
resident and migratory birds, and amphibians and
reptiles.
Riparian portions of the property: There is a ditch,
which, during one undocumented site visit, contained
standing water. The ditch empties into Sutherland-
Oemig Drain, which has flowing, water year round.
The ditch has scrub/shrub vegetation running along
both sides and provides excellent land/water transition
zone for all wildlife. It appears as though the ditch
itself will not be altered except that a connection
between the enhanced areas will be installed thereby
making it more likely to have standing water in the
ditch for longer periods, or even permanently.
Shallow Bottom areas that are seasonally/permanently
inundated: The wetlands show evidence of standing
water for long periods of time. It is likely this occurs
during the spring at snowmelt, and/or at other times of
the year after storm events. There is much detritus in
these areas, as well. The area provides good habitat for
benthic organisms important in the aquatic, and
terrestrial, food chain.
Water Column of inundated/ponding areas: The
primary area proposed for work is not accessible by fish
due to the upland ridge alongside the ditch. According
to the watermarks on the trees, depth of standing
water on the interior of the lot is up to two feet. It
likely provides good habitat during times of
ponding/inundation for aquatic organisms important in
the aquatic food chain.
b. Ecological context of proposed work site: The
woodlot is one of the few remaining wetlands, indeed
96a
forested wetlands, within Chesterfield Township, in
relative close proximity to Lake St. Clair. It is along an
established migratory flyway and provides a necessary
refuge/stopover point for many resident and migratory
species. These stopover points are being pushed
further and further from the open waters of Lake St.
Clair through residential development pressures. At
one time it is likely that the entire perimeter of Lake
St. Clair resembled the subject property, however,
timber harvesting and agriculture greatly reduced that
area and now, residential development pressures, only
a few large woodlots remain within Macomb County.
III. Environmental Impacts of the Proposed Action
A. Identified Physical Impacts
1. Effects on Water Quality
a. Construction Impacts:
The proposed construction will occur landward of the
Ordinary High Water Mark of Lake St. Clair in
Sutherland-Oemig Drain (S-O Drain). All project-
associated excavated, graded, and filled areas would be
subject to erosion into the drain along the NE to SW
property line and into the S-O Drain, thereby causing
negative impacts to water quality until the areas are
stabilized. The proposed activities would cause minor
temporary degradation of water quality. In order to
minimize the detrimental construction impacts the
permit could be conditioned to require use of silt
curtains around the work area and adequate
containment and stabilization measures for upland
work and equipment use areas.
97a
b. Operational Impacts:
The proposed work would destroy/adversely impact an
area that retains rainfall and forest nutrients and would
replace it with a new source area for runoff pollutants.
Pollutants from this area may include lawn fertilizers,
herbicides, pesticides, road salt, oil, and grease. These
pollutants would then runoff directly into the
waterway.
All of the wetlands on this parcel are slated for either
development into residential housing, or excavation for
a storm water detention basin, or excavation for
Enhancement of the existing remaining wetlands as
mitigation.
The proposed deforestation and removal of two to three
feet of wetland soils to create an emergent wetland
within the 3.74 acres of remaining existing forested
wetlands (the proposed mitigation) may serve to
capture some of the pollutants found in the runoff since
the storm water detention basin draining the new
complex would empty into these areas.
We also note that due to the existence of the spoil berm
along the drain and other surrounding features, this
wetland has been obstructed from receiving runoff from
surrounding areas and from circulation by flooding in
the drain. The site still has a very high potential to
provide runoff storage if these artificial barriers are
removed. The proposed fill would permanently remove
this potential.
Overall, the operation and use of the proposed activity
would have a major, long term, negative impact on
98a
water quality. The cumulative impacts of numerous
such projects would be major and negative as the few
remaining wetlands in the area are developed.
The negative impacts would be avoided if the permit
were denied. A modified permit which minimized the
fill area and offset runoff detention may decrease water
quality impacts; however, when _ taking into
consideration the cumulative impacts of similar
activities wiich have occurred in this watershed, such a
modified permit would require a significant reduction in
the area of fill to reduce those impacts to a minor level.
2. Shoreline Erosion and Accretion Effects:
The project would eliminate the potential ability of the
wetland to act as a sediment catch basin. Increased
runoff due to the filling of the wetlands and creation of
impervious surfaces, i.e. condominiums, driveways,
roads, etc., could increase erosion and/or sedimentation
in the S-O Drain, Auvase Creek, and Lake St. Clair.
The proposed deforestation and removal of two to three
feet of wetland soils to create an emergent wetland
within the 3.74 acres of remaining existing forested
wetlands (the proposed mitigation) may provide some
storm water retention; however, the storm water
detention basin proposed for the center of the complex
would empty into these significantly smaller areas,
quickly overtopping them. These wetlands would then
empty into the drain and most functions served by the
existing forested wetlands would not be replaced. The
project would contribute to increased runoff and would
likely result in increased erosion and accretion along
the drain and further downstream in Auvase Creek.
99a
In summary, the project will have minor, long term,
negative impacts on erosion/accretion. The cumulative
impacts of numerous such projects would be major and
negative as fewer and fewer wetlands remain in
Chesterfield Township to function as sediment basins
resulting in greater flooding events of local drains and
streams thereby increasing erosion and/or accretion
problems.
The negative impacts would be avoided if the permit
were denied. A modified permit which minimized the
fill area and offset runoff detention may decrease
impacts to downstream erosion/accretion; however,
when taking into consideration the cumulative impacts
of similar activities which have occurred in this
watershed, such a modified permit would require a
significant reduction in the area of fill to reduce those
impacts to a minor level.
3. Effects on Flood Hazards and Floodplain Values:
The proposed project would aid in the prevention of
flooding for the applicant and authorization of such a
project would encourage the applicant to invest in a
parcel that shows evidence of flooding/standing water
conditions. Because there is limited acreage remaining
in the Chesterfield Township area which provides for
storm water storage and delayed release of these
waters, it is likely that the downstream areas will see
an increase in possible flooding magnitude and
frequency. This is due to the fact that there will be a
net increase in runoff since the parcel is not currently a
part of the S-O Drain watershed. Construction of the
project and similar projects could have detriments to
downstream residents.
100a
The proposed deforestation and removal of two to three
feet of wetland soils to create an emergent wetland
within the 3.74 acres of remaining existing forested
wetlands (the proposed mitigation) may provide some
storm water retention; however, the storm water
detention basin proposed for the center of the complex
is proposed to empty into these significantly smaller
areas, which will quickly exceed their storage capacity.
These wetlands would then empty into the drain and
the functions of water storage (from precipitation)
served by the existing forested wetlands to would not
be replaced (See drawing Pages 4-8 of Enclosure 1).
In summary, the project will have minor, short term
and long term, negative impacts on flood hazards and
floodplain values. The cumulative impacts of numerous
such projects would be major and negative. The
negative impacts would be avoided if the permit were
denied.
4. Effects on Navigation
No impacts would be expected.
5. Water Supply and Conservation
No impacts would be expected. There are no water
intakes in the area likely to be affected, and we
anticipate no impacts to any drinking water aquifer.
B. Identified Biotic Impacts
1. Effects on Aquatic Biota
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For most of the year the wetlands on the site do not
support standing water and hence do not normally have
active aquatic biota. However, during the spring
flooding, standing water can persist for weeks at a time,
and opportunistic aquatic biota such as tadpoles,
macroscopic crustaceans and other invertebrates, as
well as an assortment of vegetative forms such as
duckweed (Lemna sp.) may be present. The proposed
activity would eliminate this habitat, and disrupt,
isolate, and fragment adjoining mitigation areas that
are not eliminated, thereby permanently destroying the
associated squatic vegetation and invertebrates in the
filled areas, and isolating and stressing the ones in the
mitigation habitat. Some short lived, opportunistic
benthic communities that take advantage of standing
flood waters in wooded areas to complete their life
cycles, and sedentary life stages, and as well as the
eggs of each would be directly buried or removed by
the proposed activity.
The release of contaminants to the ecosystem due to
beth the construction activities and releases associated
with the subsequent residential development may
adversely affect aquatic biota in their various stages,
including adult, juveniles, larvae, eggs, and dormant
stages in the remaining adjacent mitigation area, the
adjacent drain, the S-O Drain, and Auvase Creek.
The net result of the proposed discharges are
replacement of increasingly rare seasonally flooded
wooded aquatic habitat in the area by increasingly
abundant residential development. This results in an
overall decrease in aquatic biota diversity and
productivity.
102a
The proposed deforestation and removal of two to three
feet of wetland soils to create an emergent wetland
within the 3.74 acres of remaining existing forested
wetlands (the proposed mitigation) may provide some
habitat for aquatic biota; however, the organisms that
repopulate these wetlands would likely not be the same
as those destroyed or removed as a result of the project
as the wetland habitat will be significantly changed.
In summary, the project will have minor, long term,
negative impacts on the aquatic biota. The cumulative
impacts of numerous such projects would result in
major, long term, negative impacts to this type of
aquatic biota, and is evident within Chesterfield
Township that most areas that have been developed to
the point that they no longer have any appreciable
seasonally flooded wooded wetlands left, nor the
aquatic biota community normally found associated
with these areas.
The negative impacts would be avoided if the permit
were denied. The negative impacts would be
increasingly reduced if the scope of work was reduced
and discharges in wooded wetlands avoided. Upland
alternatives appear to be available in the area that
would avoid discharges in wooded wetlands, and would
avoid or minimize negative impacts to aquatic biota.
2. Effects on Terrestrial Biota
The project would eliminate and alter reproductive,
foraging, and resting habitat for perching birds,
woodpeckers, game birds, raptors, some waterfowl, and
small and large mammals, as well as for reptiles,
amphibians, and invertebrates, which are important in
103a
the food chain. It is possible that these wooded
wetlands also serve as a travel corridor and-cover for
some mammals and avian species between adjacent
agricultural fields and wooded lots to the east of S-O
Drain.
The upland ridge habitat along the drain and in the
corners of the parcel is the only uplands on the parcel.
During the wet time of the year when the site holds
standing water, the ridge may be the preferred location
for dens for burrowing animals.
A variety of organisms would be displaced from their
habitat by impacts of the proposed construction and its
resulting use. Those displaced organisms will not cause
degradation of habitat values for those areas to which
they will be driven. However, there is an extremely
limited quantity of equivalent habitat in the area. The
project site is one of the last remaining large wooded
wetland parcels in Macomb County, let alone
Chesterfield Township. The adjacent property to the
east contains wooded lands, which may or may not be
wetlands. This parcel is likely slated for development,
as well. Wildlife may not be accommodated if driven
from the project site to these last remaining areas.
Recolonization of the project area by similar species
would not be expected to occur after construction. The
natural habitat would no longer exist. The newly
created landscaped upland would furnish habitat for
those few species adapted for life under these
conditions. At the fill borrow site, terrestrial plants
and habitats would be destroyed by excavation
operations. The net exchange of habitats that are
increasingly rare in the area for habitats that are
104a
abundant will result in an overall decrease in terrestrial
biota diversity and productivity.
The proposed deforestation and removal of two to three
feet of wetland soils to create an emergent wetland
within the 3.74 acres of remaining existing forested _
wetlands (the proposed mitigation) may provide some
habitat for terrestrial biota; however, the species that
repopulate these wetlands would likely not be the same
as those destroyed or removed as a result of the project
as the habitat type will be significantly different.
In summary, the project will have major, long term,
negative impacts on the terrestrial biota. The
cumulative impacts of numerous such projects results
would be a notable decrease in the quantity and quality
of terrestrial wildlife. This may be observed in similar
areas that have been extensively developed for
residential and/or commercial use and no longer have
wooded wetlands, nor their diverse and extensive
native wildlife populations.
The negative impacts would be avoided if the permit
were denied. The negative impacts would be
increasingly reduced if the scope of work was reduced
and discharges in wooded wetlands avoided.
Alternatives exist to the proposal that include use of
agricultural uplands within the Township/County for
residential home sites. These alternatives, or similar
ones, would have negative impacts on terrestrial biota,
but not as severe as with the proposed work.
3. Effects on Wetlands
105a
The following type and areal extent of wetlands would
be eliminated or covered as a direct result of the
proposed discharge:
Type Size (Acre)
PFO1 15.96
The following type and areal extent of wetlands would
be eliminated/deepened as a direct result of the
proposed dredging:
Type Size (Acre)
PFO1 3.74
Recognized wetland functions which would be affected
as a result of the project are: flood water storage,
natural drainage, runoff filtration and purification, food
chain production, and general habitat and nesting,
spawning, rearing and resting sites for aquatic and
terrestrial species. Wetland values affected include
uniqueness, in that this is one of the last remaining such
sites in Chesterfield Township/Macomb County; and
heritage, which will be lost if the forested wetlands are
destroyed by development.
Each of these functions has been objectively
documented for the- particular site by means of
information as described in Section II.C. above.
The applicant proposes compensatory mitigation, which
would result in the substitution for 3.74 acres of
existing forested wetlands on the parcel. The
mitigation involves the removal of all vegetation in
these areas and excavation of two to three feet of
wetland soils to create emergent wetlands in these
areas. These would receive runoff from the storm
106a
water detention basin in the center of the parcel and
would in turn runoff into the drain that runs along the
NE-SW property line and then empty into the S-O
Drain. As discussed in the sections above, functions
which are presently provided by the forested wetlands
would not be replaced. The proposed compensatory
mitigation will not provide functional replacement of
the wetland to be impacted by the proposed project for
the future.
In summary, the project will have major, short and long
term, negative impacts on wetlands. The cumulative
effects of such actions may also result in major
impairment of wetland resources. Negative impacts
can be avoided if the permit is denied, and residential
housing is located on available uplands within the
Township/County. Negative impacts can be greatly
reduced if the permit is severely modified to place a few
condominium structures on the upland along Donner
Road. This modification would avoid loss of the
forested wetlands. If a minimum fill area is required,
compensatory mitigation design efforts could also
explore the possibility and benefits of removing the
berms and other features which presently isolate the
wetland from the S-O Drain and receiving waters.
4. Effect on Conservation and Overall Ecology:
Implementation of the proposed activity would impact
upon the ecological balance and integrity of a valuable
resource: forested wetlands, cover areas, floodplains,
and a migratory bird stopover and foraging point. The
proposed project would change an area that now
supports a variety of species into one that would
probably support considerably less diversity. The
107a
proposed work and subsequent operation could lead to
gasoline or oil spills, or releases of various residential
pollutants such as solvents, soaps, fertilizers, salts, etc.,
which could result in major.adverse impacts. The
proposed work would degrade or foreclose the prospect
of preservation of an area of high natural heritage
value.
Federal and State endangered species lists were
consulted.. The following endangered or threatened
species are known to suspected occur in Macomb
County in similar habitats:
Indiana Bat Myotis sodalist
The FWS requests that if it is determined a federal
permit can be issued for the project, a survey for the
species and its habitat on the parcel be conducted by a
qualified individual and provided to them for review.
Further, they request that consultation with FWS be
completed prior to issuance of any permit in order to
ensure impacts to the species are avoided to the
greatest extent practicable, or minimized and
mitigated.
In summary, the project will have major, short and long
term, negative impacts on conservation and the overall
ecology. The cumulative impacts of numerous such
projects can already be observed in the vicinity where
residential development has intruded into forested
wetlands, resulting in their loss and fragmentation,
been the source of introduced pollutants, and decreased
wildlife use and diversity. The negative impacts would
be reduced greatly if the permit were denied, and
108a
residential construction were diverted to available
uplands in the Township/County.
C. Identified Social Impacts
1. Visual Aesthetics
The proposed work is somewhat consistent with similar
type structures found in the area in that most of the
area was at one time forested wetlands and nearly all of
the residential structures intruded on the wetlands.
The development will destroy vital elements that
contribute to the compositional harmony or unity,
visual distinctiveness, or diversity of an area.
The construction activities will be noticeable from the
Donner Road and the immediately adjacent area to the
north and south where there are currently
condominiums and a_ residential subdivision,
respectively. Beyond this limited area, the proposed
work will not be visible. The project may detract from
the visual context of the forested wetlands. After
project completion, this project will transform an area
that may be characterized as undeveloped to one which
may be characterized as residentially developed. The
net impact of this transformation will depend on
individual taste. The construction activities will cause a
change in the aesthetic qualities of sight, taste, odor
and color of the water and air around the project area.
In summary, the project’s effect on aesthetics would be
minor, long term, and dependent on _ personal
preference. The cumulative impacts of numerous such
projects would be major, long term and again,
dependent on personal preference. These cumulative
109a
impacts may be observed elsewhere along Donner Road
and throughout the Township where forested wetland
tracts have been subdivided and filled for residential
developments. Adverse impacts can be minimized if
the permit is denied, or modified to allow development
of the upland ridge along Donner Road.
2. Noise
Construction activities, including both house and road
work, will increase ambient noise for the duration of the
work. After construction, use of the project area will
create a negligible change in noise levels for receptors
located in the immediately area. These would consist of
vehicles entering and exiting the parcel and yard power
equipment and other residential noise sources such as
voice and music. It may be expected that this added
noise would occasionally reach the adjacent receptors.
The increase is not expected to violate applicable noise
criteria.
Within the forested wetlands, however, the project use
will be contrary to the tranquil setting of the area. The
noise producing activities and other disturbances of
residential development use would negatively impact
the wildlife remaining in the adjacent areas designated
to remain in their natural state.
In summary, the project’s effect on noise would be
minor, both short and long term, and negative. The
cumulative impacts of numerous such projects would be
major and negative. Adverse impacts cannot be
minimized if the permit is issued.
110a
3. Designated Historic, Cultural, Scenic, and
Recreational Values
The up-dated National Register of Historical Places
was checked. Registered Historical sites would not be
affected by the proposed work. The proposed work
would not affect an area designated under the Federal
Wild and Scenic Rivers Act, or being considered for
such designation. The proposed work would not affect
areas designated as Natural landmarks, National
Rivers, National Wilderness Areas, National
Seashores, National Recreation Areas, National
Lakeshores, National Parks, National Monuments,
archaeological resources, including Indian religious or
cultural sites. We know of no applicable or affected
state, regional, or local land use classification due to
historic, cultural, scenic, or recreational values.
4. Land Use Patterns i
The proposed project is consistent with the existing
zoning for the area. The state permit attests to
compliance with state government view on land use.
From a national perspective, the work may encourage a
continuing trend of conversion of wetland areas to
upland residential development and a trend of
development of natural areas rather than recycling
abandoned, previously developed areas, or agricultural
areas to more intensive or better uses. The proposed
work is in a somewhat natural area in that previous
disturbances are so many decades ago that the natural
vegetation and community has recovered and
reestablished itself.
llla
The area has historically been agricultural. In recent
years, residential development in Chesterfield
Township, as well as all of Macomb County, has entered
the area resulting in sites of more concentrated
residential development, often at the loss of
agricultural fields which had once been wetlands. As
such, the proposed work would perpetuate this recent
change in land use patterns, but at the expense of
remaining forested wetlands rather than tiled and
drained agricultural land. Hence, the proposed work
would result in a change to cultural development.
In summary, the project’s effect on land use would be
minor, long term, and negative. The cumulative effect
of the change that this supports would be major, long
term, and negative. Adverse impacts can be avoided if
the permit is denied, and minimized if construction is
restricted to the uplands along Donner Road, or use of
primarily upland agricultural fields within Chesterfield
Township/Macomb County.
5. Economic Effects
The contractor, equipment supplier, and other
commercial enterprises would benefit from the
proposed work. The applicant’s property value would
stabilize or increase as a result of the proposed work.
Increased use of the area could benefit local businesses.
The local tax revenues, community services, community
cohesion would benefit. - The proposed work would
provide the applicant with an improvement in his
interests, which would result in an economic gain. In
summary, the project’s effect on economics would be
minor, short and long term, and positive.
112a
6. Effects on Recreation
The proposed work would destroy an area, which is
important to maintenance of populations of game,
although it is not in itself open to public use for hunting
and fishing. The project would destroy an area of value
for passive recreation such as photography, bird
watching, walking, and the like.
The project would cause an increase in the number of
people in the area, who may in turn degrade existing
public recreational facilities in the area. In summary,
the project’s effect on recreation would be minor, long
term, and negative. The cumulative impacts on public
recreation would be major and negative as can be
observed through the Chesterfield Township area.
Adverse impacts can be avoided if the permit is denied
or minimized if the permit is extensively modified to
restrict development to the upland along Donner Road. -
This would allow for the continued maintenance of
populations of game and use, albeit on private property,
of the area for photography, bird watching, walking,
and the like.
7. Effects on Safety
During construction and as a result of use of the
project, increased numbers of people in the area will
increase vehicular traffic and the frequency of
accidents. In summary, the project’s effect on safety
would be minor, long term, and negative. The
cumulative impacts of numerous such projects would be
minor and negative. Adverse impacts can be minimized
if the permit is denied or extensively modified to
113a
restrict development to that number of units which
would fit in the upland along Donner Road.
8. Food and Fiber production
No impacts would be expected.
9. Mineral Needs
No impacts would be expected.
10. Energy Conservation and Development
No impacts would be expected.
11. Consideration of Property ownership
The applicant has a right to reasonable private use of
_ the property, subject t the rights and interests of the
public in the waters of the United States, including
federal navigation servitude and federal regulation for
environmental protection. The project will have
benefits to the applicant’s right to property ownership.
A severely downscaled plan would also afford use of the
property.
D. Cumulative Effects
For the purpose of this application review, the
geographic area for which cumulative effects are being
reviewed is Macomb County. The development
activities epitomized by this application are discharges
of fill material in wetlands for residential construction.
Within this area, the Corps of Engineers has issued one
Nationwide 29 permit for fill in 6171 square feet of
wetland for construction of a residence and two
ll4a
individual permits. One standard permit was for
discharge in 0.32 acres of wetlands with mitigation and
the other permit has not been finalized yet, but
proposes 0.58 acres of wetland fill with preservation.
This latter permit was downsized from an initial
request to fill 6.35 of the 8.5 acres of forested wetlands
on the 57.0 acre forested site. A third application is in
its initial stages for fill in a 25 acre forested site,
approximately 10 acres of which are forested wetlands.
It is evident, through visual reconnaissance, as well as
review of aerial photographs and historical records,
that Chesterfield Township, as well as most of Macomb
County, has been and remains under tremendous
development pressure. Cumulative impacts to forested
wetlands due to this type of development has been
major and negative. Few continuous woodland parcels,
such as the subject parcel, remain in the Township or
the County.
In situations where alternatives not involving
alteration of wetlands were practicable, proposals have
generally been denied.
Similar permit requests may be anticipated if this
permit is issued. The Detroit District is currently in
the pre-application stage for a similar application for
residential development in a 27 acre wooded parcel
within two miles of the Carabell site. In addition, there
is an empty woodlot immediately across Sutherland-
Oemig Drain to the east that may also be subject t
similar development pressures. This project will set a
precedent because permits are generally not issued for
residential subdivisions when there are _ upland
alternatives. Cumulatively, the work would have major
adverse impacts as described in the sections above.
115a
The buffering/cleansing ability of wetlands is beneficial
to the areas’ surface waters. Numerous projects such
as this has seriously reduced water quality, habitat, and
overall value of the regions lakes and streams.
Activities of this type may change the natural drainage
or flushing characteristics of the waterway or its
adjacent wetlands.
As a result of the proposed work and other similar
projects, this area has experienced an influx of people.
This influx has resulted in the destruction of wildlife or
fish habitats, increased noise and litter problems,
and/or additional environmental impacts (e.g. air
pollution, etc.). These impacts may
become significant.
E. General Criteria:
1. The relative extent of the public and private need for
the proposed structure or work: The agent for the
applicant submitted a copy of Court transcripts from
the MDEQ Contested Case Hearing before
Administrative Law Judge Richard A. Patterson on the
27th day of October, 1997 wherein his witness states
there is a demand for 150 senior units. He based this on
a study conducted by his company “last year” [1996]
(Encl. 17, Page 167). There is no other demonstrated
public need for the project. Presumably, seniors are
able to locate a reasonably priced dwelling anywhere
within the county. The applicant has a perceived
private need to see a return on his investment. There
has been no demonstrated private need for the
proposed work.
1l6a
2. Where there are unresolved conflicts as to resource
use, the practicability of using reasonable alternative
locations and methods to accomplish the object of the
proposed structure or work: There is an extremely
limited, and quickly diminishing, supply of forested
wetlands remaining in Chesterfield Township and
Macomb County. Sufficient uplands exist within the
county for development of multiple residential
structures. These may be currently zoned for
residential development or a zoning variance could
possibly be passed for development on agricultural land
in the area. Additionally, the agents witnessed also
testified that there, at the time of the Contested Case
Hearing, was another available parcel within
Chesterfield Township (See Encl. 17, Page 166).
Clearly, a less environmentally damaging alternative to
forested wetland destruction and resource loss is
available.
3. The extent and permanence of the beneficial and/or
detrimental effects which the proposed structure or
work is likely to have on the public and private uses to
which the area is suited: The proposed project would
permanently destroy most of a parcel of forested
wetlands. Another portion would be changed as
mitigation for the loss of functions. The work would
alter public use of the property, but such use is not
presently authorized on the property. While the work
would provide greater private use of the area, there are
other uses for forested wetlands that can be realized
without the construction of the residential home sites.
F. Alternatives: The following alternatives have been
considered:
117a
Issue the permit as proposed.
Issue the permit with modifications.
Issue the permit with special conditions. As mentioned
in paragraph III.A.1l.a. above, a permit with special
conditions to control sedimentation during construction,
will minimize negative construction impacts due to
erosion, while fulfilling the project’s purposes and
beneficial effects on the economy.
Deny the application. (Consider the no action
alternative.) The No Action alternative would prevent
the avoidable loss of forested wetlands for non-water
dependent residential home construction. This
alternative would not prevent the applicant from
pursuing the construction of new condominium or
apartment complexes since the forested wetlands are
not the only available land in the Township and/or
County.
118a
IV. The portions of this document constituting the
Environmental Assessment adequately address the
relative magnitude of the expected impacts of the
proposed project within our mandatory scope of
analysis. The range of possible impact magnitude
included no impact, minor impact, major impact, and
significant impact as the term significant is defined in
regulations implementing NEPA. Our analysis did not
indicate the potential for significant impact on the
quality of the human environment. Therefore, I do not
recommend preparation of an environmental impact
statement.
V. 404(b)(1) Guidelines Compliance Evaluation:
The effects of the proposed discharge of dredged or fill
material into the waters of the U.S. have been
evaluated according to the Section 404(b)(1) Guidelines
for Specification of Disposal Sites for Dredged or Fill
Material, promulgated in Title 40 CFR 230 pursuant to |
Section 404 of the 1977 Clean Water Act.
Factual Determinations in light of Subparts C-F of the
Guidelines have been set forth under appropriate
impact assessments above.
Testing: Subpart H of the Guidelines requires testing
of the extraction site of the discharge material for
contaminants except under certain circumstances.
These include the existence of prior test results,
scientific research and/or experience that indicates that
contaminants are not present in the material to be
discharged. Testing may also be omitted if the
discharge site is adjacent to the extraction site and
subject to the same sources of contaminants, and
materials at the two sites are substantially similar.
119a
Testing may also be omitted if constraints are available
to reduce contamination to acceptable levels, and if the
potential discharger is willing and able to implement
such constraints. In this case, testing is not required
because it has been indicated that the fill material will
come from a commercial source.
Mitigation/ Alternatives:
The following is a summary of the mitigation sequence
as required by the February 10, 1990 Memorandum of
Agreement by the EPA and the Corps as it pertains to
the proposal and, if applicable, its alternatives: °
Avoidance
The proposed discharge would occur in a special aquatic
site, a forested wetland. The fundamental, essential, or
irreducible activity or use to which the special aquatic
site will be put after discharging dredged or fill
material and construction (“basic purpose”) is shelter,
which, per se, does not require access or proximity to or
siting within forested wetlands to take place.
Therefore, we must presume that there are practicable
alternatives to achieve the overall project purpose that
do not involve special aquatic sites, and that all
practicable alternatives to the proposed discharge
which do not involve a discharge into a special aquatic
site have less adverse impact on the aquatic ecosystem.
The applicant responded to this presumption. Based
upon this response, the applicant has not demonstrated
satisfactorily that a less damaging practicable
alternative does not exist.
120a
The applicant did not adequately address avoidance of
wetlands, the first necessary sequence in the Section
404 (b)(1) guidelines. As their alternative analysis, the
applicant submitted contested case hearing transcripts
indicating there is only one other parcel in Chesterfield
Township zoned for multi-family development. They
did not explain why they could not pursue use of this
parcel. They also failed to address the availability of
other upland parcels, the possibility of seeking and
being granted-zoning variances within the Township,
the use of several smaller parcels instead of one large
parcel, or change in design to fit the available zoning.
This presumption must be overcome before moving to
the second hurdle in the Guidelines.
Minimization
The applicant failed to offer an explanation as to why
what little upland is available on the parcel could not be
fully utilized, thereby minimizing impacts to the -
wetlands on-site. As described in the sections above,
we have identified steps to minimize impacts. We have
determined that these steps are appropriate for the
reasons specified in those sections, presuming the
applicant can make an acceptable argument to meet the
avoidance criteria first.
Compensation
The applicant has proposed an exchange of existing
forested wetlands through excavation of a small area of
forested wetlands to create emergent wetlands (marsh)
and open aquatic areas. We determined that this would
not be adequate functional replacement.
f
12la
Section 404 (b)(1) compliance summary matrix
P = Proposal.
/
D = No action (denial). Al, A2 =
Additional alternatives, if any. Where only a P is
shown,
it indicates that all alternatives meet
compliance criteria for that item. An unknown is a
noncompliance; this will be designated with a U in the
DOES NOT COMPLY column.
1.
The applicant
must overcome
the presumption
that a practicable,
less
environmentally
damaging
alternative site,
outside special
aquatic sites,
exists. If the
project is water
dependent, OR is
not in a special
aquatic site, enter
only N/A (not
applicable).
There must be no
alternative that is
practicable, is less
damaging to the
aquatic ecosystem,
MEETS DOES
CRITERIA NOT
COMPLY
D P
D P
and has no other
significant,
adverse
environmental
effects.
_--—-—-—-—-—- == = “++m@ee@eeee wewewrenrnenernee eee eee ree
3. The discharge
must not violate
state water
quality standards
or Clean Water
Act Section 307
toxic effluent
standards or bans.
4. The project must
not jeopardize the
continued
existence of an
_- — = = © © © © © FE SEH FF eee eee ew me wed ewe eee eee een ee ee & eS
5. The project must
not cause or
contribute to
significant*
adverse effects on
municipal water
supplies, plankton, P
fish, shellfish,
wildlife, special
aquatic sites, or
other aspects of
human health or
welfare.
lee eee ee ee a a a a a a a a
6. The project must
not cause or
contribute to
significant*
adverse effects on
life stages of P
aquatic life and
other wildlife
dependent on
aquatic
ecosystems.
7. The project must
not cause or
contribute to
significant*
adverse effects on P
ecosystem
diversity,
productivity, or
stability.
en ee
8. The project must
not cause or
contribute to
significant* Pp
adverse effects on
recreational,
aesthetic or
economic values.
9. All appropriate
and practicable
steps, to minimize D P
potential adverse
effects of the
Neh ie a SIS ne es eye
aquatic ecosystem,
must be taken.
*If project does not comply due to this, explain
if this determination differs from conclusion regarding
an EIS, Section IV. above.
Section 404 (b)(1) Compliance/Non-Compliance
Determination
The proposed discharge fails to comply with the
———-404 (b)(1) Guidelines because it appears that there is a
practicable alternative to the proposed discharge that
would have less adverse effect on the aquatic
ecosystem, and the alternative does not have other
significant adverse environmental consequences. The
applicant has not supplied sufficient information to
make a reasonable judgment as to whether the
proposed discharge will comply with the Guidelines
(40CFR Part230.12 (a) (3) (iv)).
RICHARD J. POLO JR.
LTC, EN
Commanding
Prepared by:
Robert D. Deroche
Project Manager
Permit Evaluation Branch B
Date: 11 September 2000
Enclosures
125a
P.N. dated 8 February 2000
EPA Itr. dated 7 March 2000
F'WS Itr. dated 14 March 2000
MDEQ ltr. dated 22 February 1994
MDEQ FDO dated 30 September 1998
MDEQ permit issued 13 November 1998
SHPO Itr. dated 7 June 2000
MCPA Itr. dated 14 March 2000
DWSD ltr. dated 26 January 2000
10. LSAC ltr. dated 17 January 2000
11. Corps Itr. dated 20 March 2000
12. Agent ltr. dated 28 March 2000
13. Agent ltr. dated 23 May 2000
14. MDEQ Hearing Transcripts from 27 October
PHB Pre Pp rr
©
15. Insp. report from 12 October 1999
16. ‘Insp. report from 5 May 2000
17. Insp. report from 2 August 2000
Reference Materials used in compiling this Assessment
include:
USGS topo quad for New Haven, Mich. #48B
NOAA Chart Nu. 14853
Endangered Species List
National Register of Historical Places
USDA soil survey for Macomb County, MI, issued
September 1971
Site Investigation
Ground Photography
Register of Natural Landmarks
Wild and Scenic Rivers Act
404 (b) (1) Guidelines
Fish and Wildlife Service Wetland Inventory Maps
126a
Census Data
Department of the Interior National River Inventory
127a
DEPARTMENT OF THE ARMY
DETROIT DISTRICT, CORPS OF ENGINEERS
BOX 1027
DETROIT, MICHIGAN 48231-1027
October 5, 2000
IN REPLY REFER TO
Engineering & Technical Services Regulatory Office
File No. 99-250-002-1
Keith and June Carabell c/o Tim Stoepker.
Abbott, Nicholson, Quilter, Esshaki and Youngblood
300 River Place, Suite 3000 Detroit, Michigan 48207 .
Dear Mr. and Mrs. Carabell:
I have reached a decision on your application for a
Department of the Arm permit to discharge fill material
for construction of a condominium development in
wetlands at Chesterfield Township, Michigan. After due
consideration of the record and the appropriate
regulations, I have determined that the project is
contrary to the overall public interest, and have decided _
to deny your request for a permit.
Your parcel is primarily a forested wetland that
provides valuable seasonal habitat for aquatic organisms
and year round habitat for terrestrial organisms.
Additionally, the site. provides water storage functions
that, if destroyed, could result in an increased risk of
erosion and degradation of water quality in the
Sutherland-Oemig Drain, Auvase Creek, and Lake St.
Clair. The minimization of impacts to these wetlands is
important for conservation and the overall ecology of the
128a
region. Because the project development area is a
forested wetland, the proposed project would destroy
the resources in such a manner that they would not soon
recover from impacts of the discharges. The extent of
impacts in the project area when considered both
individually and cumulatively would be unacceptable and
contrary to the public interest.
This decision was also based on an evaluation of the
project's compliance with the 404(b)(1) Guidelines for
Specification of Disposal Sites for Dredged or Fill
Material. The Guidelines were developed by the U.S.
Environmental Protection Agency pursuant to the 1977
Clean Water Act, and they establish criteria for
evaluating proposed projects. The Corps of Engineers is
obligated to deny applications for discharges when work
does not comply with the Guidelines. One critical
threshold of the Guidelines is a thorough consideration of
less damaging practicable alternatives.
For projects such as yours, the Guidelines require that,
we presume that less damaging alternatives are
available unless clearly demonstrated otherwise. You
have not overcome this presumption, and therefore your
project does not comply.
One apparent less damaging alternative would be to
purchase an upland, or primarily upland, parcel of
property elsewhere in the Chesterfield Township area
that may be zoned or, re-zoned for multi-family
residential development. There may be other less
damaging alternatives, as well. If there prove to be none,
we would give favorable consideration to a project that
significantly reduces impacts to the forested wetland on
your property, such as construction along Donner Road
129a
that utilizes the upland to the maximum extent possible.
We would also require the mitigation to provide for the
complete functional replacement of the forested
wetlands proposed for development.
You are hereby notified that you and/or your authorized
agents) may appeal a denied individual permit under the
Corps of Engineers Administrative Appeals Process.
Should you wish to appeal this decision, you must fill in
and submit the enclosed Request for Appeal (RFA)
within 60 days of the date of this letter. Your RFA must
be submitted to the division engineer at:
Brigadier General Robert H. Griffin
U.S. Army Corps of Engineers Lakes & Ohio River
Divisi
P.O. Box 1159
Cincinnati, Ohio 45201-1159
Should you have any questions, please contact Bob
Deroche at the above address or telephone (313) 226-
6813. Please refer to File Number: 99-250-002-1.
Sincerely,
Richard J. Polo Jr.
Lieutenant Colonel,
U.S. Army District Engineer
Enclosures
Copy Furnished:
MDEQ, Livonia (93-14-602)
130a
NOTICE OF ADMINISTRATIVE APPEAL
OPTIONS AND PROCESS AND REQUEST FOR
APPEAL
Applicant: Keith and June Carabell
File Number: 99-250-002-1
Date: October 5, 2000
Attached is : Permit Denial
See section below C
OK
C: PERMIT DENIAL: You may appeal the denial of a
permit under the Corps. of Engineers Administrative
Appeal Process by completing Section II of this form
and sending the form to the division engineer. This
form must be received by the division engineer within
60 days of the date of this notice.
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CELRE-ET-RG 99-250-002-1 (1145b)
October 5, 2000 MEMORANDUM FOR Record
SUBJECT; Statement of Findings on Proposed
Discharge in wetlands at Chesterfield Township,
Michigan by Keith and June Carabell
1. Reference attached Environmental Assessment
(EA) on the proposed work.
2. Summary/ Remarks
The agent for the applicant went on record, on two
separate occasions as stating that the project is not
within a state, or federally regulated wetland (See
EA Enclosures 12 (Pg. 2, Para. 2.a.) and 12 (Pg. 1, 2nd
Para.)). The record clearly Establishes the site as
being used for interstate commerce (neo-tropical,
migratory bird stopping point) and as adjacent, to a
drain which empties directly into a Section 10 water
(See Encl. 16).
The applicant offered an exchange of 3.74. acres of
forested wetlands with the same acreage of emergent
wetland as mitigation for the 15.87 acres proposed to
be eliminated through the discharge of fill material.
Compensation is, the final step in the sequence of
avoidance, minimization and compensation. Since the
presumption of avoidance has not been addressed
and satisfied, the offer of compensation is
premature.
The project will destroy one of the last remaining
forested wetlands in Chesterfield Township, and one
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of the last remaining large forested tracts of land in
not only the Township, but also in Macomb County.
Areas such as this forested wet land provide
invaluable habitat for resident and neo-tropical
migrant birds, as well as to the dwindling
populations of small and large mammals in the area.
Cumulatively, this and similar projects are resulting
in increases in flood duration and frequency and a
contribution to the degradation of water quality in
the Lake St. Clair watershed. Public recreation will
suffer through a reduction in populations of bird's
and mammals, many of which .are fed and/or
photographed by people in this highly developed
area. Although one of the applicant's expert
witnesses in the contested case hearing states that a
recent study reveals a need for 150 senior units
within Chesterfield Township, at no time during the
processing of this permit application did the
applicant; or his agent, indicate the purpose of the
work was to construct senior housing. Regardless, .
we presume that there is a less damaging
alternative.
3. Conclusions and Determinations:
a. Compliance with the Section 404 (b) (1) Guidelines
of the Clean Water Act: The proposed discharge fails
to comply with the Guidelines.
4. Public Interest Determinations:
I determined that the project would have minor, long-
term benefits to the economy of the area, as well as
the applicant, and to property ownership. I
determined that the project would have major, long-
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term detriments to water quality, flood hazards,
aquatic and terrestrial biota, recreation, and
conservation and overall ecology. MDEQ has issued
thei
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