view south of the so-called "upland break"
Both the National Wetlands Inventory and MIRIS maps indicate that much of the site is a large palustrine, lowland hardwood forested wetland system. A 1992 preliminary wetland determination by Dr. Eugene Jaworski of J & L Consulting Services indicated that approximately 65% or about 18 acres of the Secluded Woods parcel was wetland. A 1998 delineation performed by King & MacGregor Environmental, Inc., and approved by the MDEQ, indicated that only 0.17 acre of the parcel was regulated wetland consisting of two small areas along the south property line, tucked well away from the central development area desired. These small areas are part of a much larger wetland area contiguous with Lake Saint Clair and the Salt River. To the north of this, they delineated only 2.9 acres of wetland, and determined that it was separated from the larger wetland area to the south by a so-called "upland break" of only about 8-foot wide by 20-foot long, and with not more than about a 1-inch rise in elevation. This served to disconnect the majority of the wetland to the north from the larger, contiguous wetland to the south, and being noncontiguous and under the 5-acre threshold, the northern 2.9-acre wetland area was determined to be unregulated by the MDEQ. The primary basis for the so-called "upland break" was described as a seasonal dominance of Wild Geranium - Geranium maculatum, classified by the U.S. Fish & Wildlife Service as a Facultative Upland (FACU) species, which by even there own classification still has a 1% to 33% chance of occurring in wetland. However, wetland delineation requires consideration of all dominant species in all vegetative layers (canopy, understory, herbs, etc.). In this particular area, other dominant species include Silver Maple - Acer saccharinum and American Elm - Ulmus americana, both Facultative Wetland (FACW) species, Blue-beech - Carpinus caroliniana, a Facultative (FAC) species, one American Basswood - Tilia americana, a Facultative Upland (FACU) species, Common Spicebush - Lindera benzoin, a Facultative Wetland (FACW) species, and several patches of woodfern, either Boott’s Fern - Dryopteris x Boottii or Spinulose Woodfern - Dryopteris spinulosa or a hybrid of both. Boott’s Fern and Spinulose Woodfern often hybridize, making a distinction between the two species difficult, but both species are Facultative Wetland (FACW) species. As a whole then, the plant community in the so-called "upland break" is a wetland community (FACW to FAC), rather than an upland community as represented by Wild Geranium, one single FACU herb species. The Detroit District of the U.S. Army Corps of Engineers disagreed with the so-called "upland break", stating that it doesn’t exist and determining that the entirety of the wetland on the Secluded Woods parcel was under their jurisdiction, as well as the larger wetland area on the adjoining 3 parcels. They upheld this position through two administrative challenges by the developer. Therefore, they required a permit for the proposed wetland impacts, primarily three road crossings. These impacts were approved through Nationwide Permits, which allow for what are considered small and routine wetland impacts for various classes of projects, such as road crossings. They grant permission without need of a permit application as long as the activity falls within the criteria of the Nationwide Permit, and so are relatively easy to make use of. However, the MDEQ has not required a permit for these same wetland impacts. It is our opinion, and supported by the U.S. Army Corps of Engineers, that permits are legally required for impacts to any of the wetland delineated on these 4 parcels, because it is part of a larger wetland area contiguous with Lake Saint Clair and the Salt River, and also because most of it is part of a wetland area greater than 5 acres.
view north of the so-called "upland break"
view north of the so-called "upland break"
