# Joint Appendix — Rapanos v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2005 - **Citation:** 546 U.S. 932 ## Text 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 6la 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 62a 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 66a 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. 83a 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 84a 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 85a 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. 86a 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- 87a 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 88a 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 89a 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). 90a 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 10la 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0091%3A07. Public record. Not legal advice.