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E-M:/ another wetland bites the dust



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Enviro-Mich message from davemec@sojourn.com (dave dempsey)
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ANOTHER WETLAND TURNS TO DUST
The Case of File No. 87-14-824W

        The Michigan Department of Environmental Quality has decided to
permit the destruction of another large, environmentally important wetland
along Lake St. Clair -- and to give the developer a special break along the
way.
        The DEQ decision, made official Wednesday, June 18, was rendered by
an administrative law judge ruling on a nine-year-old contested case.
Overlooking legal precedent and sound natural resource policy, the judge's
ruling was described as virtually "beyond my comprehension" by a state
official.
        Sacrificing approximately 18 acres of wetland near the mouth of the
Clinton River spillway in Clinton Township for 50 homes and 300 apartments,
the decision must also be okayed by the U.S. Army Corps of Engineers and
other federal agencies.  In this lies the only hope of protecting yet
another important habitat with which the state's wetland conservation
agency is only too willing to part.
        Adding this case to half a dozen others it has laid before the U.S.
EPA, the Michigan Environmental Council today renewed its call to the
federal government to suspend the state's wetland protection authority
under Section 404 of the Clean Water Act.

Proposal Goes Back to 1980
        The ruling by DEQ ALJ Richard Patterson culminates a permit review
process that began in 1980 (after the effective date of the Michigan
wetland protection law) when Metro Development purchased an option on
approximately 57 acres of land on Jefferson Avenue in Harrison Township,
400 feet northwest of Lake St. Clair.  When it was determined that wetlands
were present on the property -- ultimately, 45 acres of the parcel were
determined to be wetlands -- Metro Development failed to exercise its
option on the land.  Charfoos and Company, owner of the parcel since the
late 1950s, then proposed developing approximately 450 apartments and 150
single family homes on the parcel.
        After negotiations with the then-Department of Natural Resources,
Charfoos scaled back its proposal to develop only the easterly portion of
the parcel.  On August 30, 1989, after an outpouring of opposition from the
community and state and federal resource agencies, including the Clinton
River Watershed Council and Harrison Township Supervisor (now Michigan
Secretary of State) Candace Miller, DNR denied the application.  At this
point the applicant would have placed approximately 95,000 cubic yards of
dredged spoils from the Clinton River and sand from uplands into 36 acres
of wetlands.  DNR found:
        "The proposed activity would destroy a significant amount of
existing palustrine emergent, forested, and scrub-shrub wetlands.  The
project as proposed would severely and negatively impact established and
existing biological communities which provide habitat for breeding,
nesting, feeding, and rearing of a variety of wildlife."  Then-DNR Director
David Hales characterized the site as "critical habitat for fish, aquatic
life and wildlife."
        The U.S. Fish and Wildlife Service also reviewed the permit and
found the site would likely "provide valuable feeding, nesting and cover
habitat for a variety of wildlife species including waterfowl, wading
birds, amphibians, reptiles, and invertebrates."
        Charfoos filed for a contested case in September of 1989, but due
to health problems affecting a principal of the company, the hearing on the
petition did not take place until August, 1995.
        The applicant's view of the area is described in an August 1995
statement of the case pled before the administrative law judge:
        "...[T]he property does not contain significant aquatic resources
or aquatic life.  The property possesses little, if any standing water, and
no fish.  It does no perform the functions for which wetlands are valued.
It does not for example, provide nutrient source for fish (because there
are no fish), it does not protect subsurface water resources or recharge
groundwater supplies, it does not serve as a biological and chemical
oxidation basin, nor does the Charfoos parcel provide habitat for waterfowl
or any rare, threatened, or endangered species.  It is a forested wetlands
of low value."
Administrative Judge Makes Unprecedented Ruling
        Patterson's ruling begins with the observation that while he did
not walk the site, his inspection from its periphery did not reveal
"substantial standing water." This "squish test" overlooks the DNR/DEQ
field staff's observation:  "Seasonal standing water is a natural
occurrence in Michigan wetlands and timing and amount of this water
provides benefits to the animals that utilize the wetland system.  One
would expect that many wetland areas would have less amounts of standing
water during the dry summer months or during periods of low precipitation."
        He then embraces the developer's contention that the wetland is
independent of the Clinton River spillway and Lake St. Clair although it is
on the lip of both, and that it is not a water quality beneficial site.
DEQ staff reply:  "[Patterson] stuck to the current values of the
wetland...This does not address before and after scenarios.  No stormwater
management is proposed in any scenario/alternative.  The wetlands that
currently hold water will be replaced with significant amounts of
impervious surface which collects silts, sediments, oils, and greases.
These would likely be directed to the surface water of the state."
        Patterson adopts the developer's arguments that the project serves
a public need (for housing) and that there are no feasible and prudent
alternative locations.  DEQ offered two alternatives:  an 80-acre farm site
closer to the Clinton River than the Charfoos site, a similar distance to
Metro Beach, and closer to other access points to Lake St. Clair.
Patterson rejected this alternative because it lacks "the density of trees
or attractiveness of the subject site."  (The trees on the Charfoos site
will largely be removed for housing.)  The second alternative proposed by
DEQ is a downscaled "resource management" plan that would permit 57
apartments with 28 single houses at the Charfoos site.  Patterson rejected
this alternative because "it would not generate a sufficient return" for
Charfoos.  Patterson quotes approvingly from Charfoos' testimony:  "It is
his opinion that one must obtain a return of costs and a 10% profit in what
he characterized as a high risk development."
        Responding to this point, DEQ staff observes, "I suppose the issue
may come down to whether or not the state is obligated to provide Mr.
Charfoos a 10% return on his investment regardless of circumstances."
        It's also important to note that the applicant failed to document
any search for alternative locations.  Although its real estate expert said
there were no comparable sites in the area, he suggested that the closest
alternative access to Lake St. Clair was Algonac, which is not even on Lake
St. Clair, and overlooked the proposed farm site.
        Finally, warping years of legal precedent, Patterson says the
project is wetland dependent, a condition which must be met to permit
projects under state law.  Trying to wiggle away from the precedents, he
concedes that projects building apartments and houses are not "wetland
dependant [sic] in the sense they can only be performed in a wetland, the
wetlands must be utilized to some extent."
        Perhaps the most striking findings made by Patterson are the
following regarding the importance of the 30 acres of wetlands to be
destroyed by the project:
        "...[T]here would be destruction of a considerable amount of
wetlands.  However, considerable wetlands would be preserved in that
approximately one half or more of the undeveloped portion are wetlands."
        "There are considerable wetlands in the general area, although
there has been a considerable loss in the past, and the remaining wetlands
have been characterized by [DEQ staff] as 'fragmented.'"
        "While the parcel contains considerable wetlands, they are, in
essence, land locked...It should also be remembered, as previously stated,
that considerable wetlands will remain.  I find, therefore, as a matter of
fact, there is no probable impact of this activity to the cumulative effect
created by other existing or anticipated activities in the watershed."
        Responding to this bizarre finding, DEQ staff point out:
        "I believe that his [Patterson's] justification for allowing the
impacts of his proposal is that more than 14 acres of wetland will remain.
But there are an estimated 45 acres of wetlands on the property (his
estimate).  Macomb County has lost over 70% of its forested wetlands since
the 1800s.  I believe that his statements that there will not be an
unacceptable disruption to the aquatic resource, that there will be no
cumulative impacts is inaccurate...In addition, the location of this
wetland provides additional benefits due to its proximity to Lake St.
Clair.  The wildlife use and migratory bird habitat were set forth in
testimony and other animal use was identified."

Developer Gets a Break on Mitigation
        The state has traditionally required developers of significant
wetland areas to "mitigate" unavoidable impacts by providing 1.5 acres of
new wetland for every acre lost.  But Patterson has crafted his own policy.
Charfoos will get a special deal:  creating one acre of wetland for every
three acres lost.   Some 18 acres of wetlands will be destroyed for the
development.  Although the final permit does not specify wetland mitigation
acreage, a draft obtained by MEC indicates the area mitigated will be
between five and six acres.
        The reason?  According to a state memorandum, "the inquiries
concerning any intentions to mitigate off-site, based upon ordinary
practice of the Department calling for a 1.5 to 1 ratio were ruled out of
line [by Chief Administrative Law Judge Richard Lacasse] in that the
Department has not published any rule requiring such a ratio.  The
Department is entitled only to a narrative concerning what they intend to
do as mitigation.  It is not reasonable to expect information concerning
grading, planting, hydrology, water elevations, excavation, etc., since
'that may not be what they plan to do and no such requirements appear in
the order.'"
        If used as future precedent, Lacasse's new personal policy
completely undermines the state's ability to protect wetlands.  It will
lead to a significant acceleration in the net loss of wetlands resources;
few if any wetland acres will be created to offset losses for such
wetland-dependent activities as building houses and apartments.


Dave Dempsey
Michigan Environmental Council
119 Pere Marquette, Suite 2A
Lansing, MI  48912
(517) 487-9539
(517) 487-9541 (fax)



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