This document constitutes my Environmental Assessment, Public Interest review summary, and 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 U.S. Army Corps of Engineers (USACE), 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:  Made in Detroit (MID), ATTN: William T. Merriweather, 211 West Fort Street, Suite 2206, Detroit, Michigan.  Agent for the applicant is Saulius K. Mikalonis of Butzel Long law office, Detroit, Michigan.

B.  Work Description:

   The proposed Gibraltar Bay Development consists of 340 Homesites and a nine hole golf course center.  The site is located in the cities of Trenton and Gibraltar and consists of 409 acres of property, 231 acres of land area and 178 acres of water.  According to the applicant, the land area contains approximately 54 acres of wetlands.

    1.  Activities requiring permits (from the public notice project description):

       a.  MID proposes to discharge fill materials within 2.62 acres of wetlands for roadway crossings; 0.30 acres for golf course crossings and golf course development; 46 homesites would have 1.86 acres of wetland fill for residential homesite development.  Additionally, 15 open pile boardwalks would be constructed for a 1532 foot total length to span existing and mitigated wetlands. 

       b.  Discharges associated with construction of a

1,000-foot open pile bridge to the island with pilings 60 feet on center and maximum clearance of 8 feet from HWD.  The bridge would be located east of the north edge of an existing conservation easement.  Discharges would include construction of a causeway approach on a 0.28 acre existing partial land bridge, and the footprints of the piers.   

       Note: According to the MDEQ record of decision, "construction of a 600-foot causeway approach to the bridge using fill materials will result in filling of approximately 1.0 acre of wetland and bottomland of the Detroit River.  The causeway approach is located in a shallow water back bay area."  We have reviewed the plans and visited the site, and concur that there is  approximately 1.0 acre of open water and shallow marsh wetland which is immediately adjacent to or below the ordinary high water mark of the waterway.  This is distinct from the majority of the remaining wetland fills, most of which are yet further upslope of the ordinary high water mark but are nonetheless adjacent to the Detroit River. 

    2.  Proposed mitigation:  In conjunction with the proposed wetland filling, the applicant proposed to create 12.6 acres of new wetlands (21 individual sites) and a series of storm water detention ponds/storm water quality control management practices (17 ponds totalling 7.35 acres in size).  See the mitigation evaluation portion of the wetland assessment section for a discussion of potential additional wetland mitigation.  In addition, MID wishes to obtain consideration for the existence of a Conservation Easement held by the State of Michigan.  The total conservation easement area is 112.4 acres comprised of 81.0 acres of open water, 11.6 acres of upland and 19.9 acres of wetlands.  See section II.C. below for further background on the easement.

            Note: A revised project description and plans reflecting the changes necessitated by the Michigan Department of Environmental Quality (MDEQ) permit decision of June 1999 was requested July 8, 1999 (Encl 1b).  The applicant responded with "revised drawings" which they claimed "represent the latest conceptual plans for the proposed mitigation" (Encl 1c).  The applicant's latest submission includes a large scale overall plan view, an overall 81/2 x 11 plan view, and 81/2 x 11 plans detailing individual mitigation sites.  There are noteworthy omissions and discrepancies among the three types of plans. 

    3.  Work within the scope of analysis for this evaluation but lying outside of direct Corps jurisdiction are activities associated with residential/recreational development on associated uplands of the parcel.  The vast majority of uplands, such as an offshore island known locally as Humbug Island, require discharges of dredged and fill material for upland access and thus come within Corps control and responsibility.

C.  Purpose:  The applicant's stated purpose for the work is to create a residential waterfront development with a nine-hole golf course.   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)(1) Guidelines and subsequent guidance as "overall project purpose", is development of an upscale residential development with a golf course.   

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 10 of the River and Harbor Act, and Section 404 of the Clean Water Act.

E.  Public Involvement: 

    1.  A list of the agencies, interested groups, and the public consulted regarding the project is attached to the Public Notice dated April 6, 1999 (Encl 2).  The comment period expired May 20, 1999.

    2.  A joint Corps - Michigan Department of Environmental Quality (MDEQ) public hearing was held on May 5, 1999 (Encl 3).

    3.  The project under consideration is a revised proposal submitted in response to the MDEQ denial of a request by the applicant to modify the conservation easement which exists on the property.  A public notice dated August 19, 1998 (expired September 17, 1998) described that proposal (Encl 4).  A joint Corps - Michigan Department of Environmental Quality (MDEQ) public hearing regarding that proposal was held September 15, 1998 (Encl 5).

F.  Federal, state, local, and public comments relating to the Activity: 

     1.  Federal:

          a.  U.S. Environmental Protection Agency (EPA):

          (1)  May 20, 1999 (Encl 6a) -  Maintained positions stated in their letter dated September 30, 1998.  "We do not find this current proposal significantly different from the previous proposal, other than for the fact that the applicant is no longer proposing to alter the conservation easement on the site.  For this reason, EPA still has significant problems with the proposed project, and find that the concerns outlined in our September 30, 1998 letter have not been addressed by this new proposal. Therefore, we recommend that the permit be denied."

         (2) September 30, 1998 (Encl 6b;regarding the first application)- Recommended permit denial on the basis of non-compliance with the 404(b)(1) Guidelines.  Some of the reasons listed are:

            aa) A residential development and golf course are not water dependant activities.

           bb) The applicant has not demonstrated that there are no practicable alternatives or that they have avoided and minimized impacts to the greatest extent possible.

            cc) The project as proposed would have significant adverse impacts on the aquatic environment and would cause or contribute to significant degradation of the waters of the U.S.

EPA stated the area held significant value, being "the last remnant of Great Lakes Coastal wetland on the Michigan side of the Detroit River" as well as providing habitat for a wide variety of species.  The potential adverse impacts, include but not limited to erosion, siltation, shoreline destabilization, disturbing contaminated sediments, nonpoint source pollution, and human encroachment, may affect the integrity of the easement.

          b.  U.S. Fish and Wildlife Service (FWS): 

         (1) May 20, 1999 (Encl 7a) - FWS objected to the project and reiterated many concerns and recommendations contained in their September 30, 1998 letter, and stated "There appears to be no substantive difference between the currently proposed project and the project reviewed by the Service in this same location in September 1998."  FWS maintained their position that the area is extremely valuable and strongly recommended the permit be denied, as currently proposed.  Specific concerns/recommendations are contained in the appropriate assessment sections below.

          (2) September 30, 1998 (Encl 7b; regarding the first application) - FWS strongly recommended the permit be denied. They cited the value of the area as a "globally rare and unique habitat" which is critical for numerous animals and plants and stated that the decline in populations of many obligate wetland species can be directly linked to loss of coastal and riparian wetland habitats.  Potential primary and secondary impacts were a concern. The main issues raised in the letter are addressed in the May 1999 letter mentioned above.  Specific concerns/recommendations are contained in the appropriate assessment sections below.

We coordinated the above comments to MID with the following statements:

    1. June 11, 1999 (Encl 8a)

       a.  The letters raise substantive concerns which will weigh heavily in our decision on the proposal.  At this point we share many of the concerns expressed in these letters.

       b. Please provide us any revised plans, particularly those which result from the state permit action, to insure the latest plan changes and special conditions are considered during our review.

    2. October 29, 1998 (Encl 8b)

       a.  The letters raise substantive concerns which will weigh heavily in our decision on the proposal.  At this point we share many of the same concerns.

       b.  Although there are many issues and concerns associated with the proposal which are under evaluation, the most significant negative aspects of the proposal which have been identified thus far include:

           (1).  Impacts to areas which provide a buffer for wetlands and serve as an ecotone (proposed modification of the conservation easement).  We strongly recommend the proposed modification be withdrawn and the overall development be reconfigured.

           (2).  Subdivision of the property would be such that significant portions of many lots would consist of protected buffer/ecotone areas.  The conservation easement preserves areas in a natural (unmowed, uncleared) state.  It does not appear that residential development and use, and the maintenance of these natural preserves would be compatible.  We strongly recommend a modified proposal where preserve areas are held in common, as a single entity, rather than conveyed to individual property owners. 

           (3).  The adverse impacts associated with access to and residential development of the island would be heavy.  The habitat value of the island is high and would be severely reduced or eliminated by development.  A project which confines development to the mainland would substantively reduce overall impacts while still fulfilling the project's overall basic purpose and providing many of the same benefits and opportunities.

       c.  We request the response also specifically address the following:

           1.  Contaminated sediments and potential exposure or disturbance (a testing and management plan would be necessary).

           2.  Alternatives analysis (guidance sheet provided)

           3.  The value of the mitigation

           4.  Flooding due to seiche action and the potential need to raise lot elevation.

           5.  Potential use of the site by, and effect of development on bald eagle

          c.  Congressional Interests

           (1) Congressman John D. Dingell:

              aa. Congressman Dingell raised several concerns in a letter dated May 28, 1998 (Encl 9a). He acknowledged the conservation easement previously placed on the property and had the following questions to ask:

                  i. Was MID aware of the easement when they purchased the property? 

                   ii.  Under what legal or regulatory authority could the conservation easement be modified or lifted? 

                  iii. Would such a process be open to public comments and hearing? 

                  iv.  How much of the proposed development is within the boundaries of the easement?

                  v.  Were all of the mitigation requirements of the conservation easement met?

Congressman Dingell also stated that Humbug Marsh has unique wetland characteristics and provides critical habitat for wildlife. His specific questions regarding the possible impacts on wildlife in the area are as follows.

                  i.  What type of impacts would the development have on the fish in the area, including the anadromous fish?

                  ii.  Are State and/or Federal endangered species laws being considered?

                  iii. Will the walleye fishery be affected?

                  iv. What responsibilities does the United States have to assure the integrity of this sports fishery along an international boundary, under the Boundary Waters Treaty and other bilateral agreements with Canada?

                  v.  What type of impact can be expected for migratory bird species?

                  vi.  How will bird and waterfowl hunting be affected?

Congressman Dingell also inquired about the potential dredging and filling of the Detroit River during construction.  He was concerned about the contaminants in the sediment and inquired about measures to be taken to ensure the safety of the public.  He encouraged the USACE to continue with a very thorough review before making any decisions.

We responded by letter dated June 19, 1998 (Encl 9b).  We assured Mr. Dingell that we would be doing a thorough review before making any decisions and indicated that we could not provide conclusions as to project impacts until the conclusion of that process.

              bb.  Congressman Dingell wrote again on August 20, 1998 (Encl 9c).  He stated that there remained much concern over the issues raised in his previous letter.  He requested a complete response to the questions he had posed.   He cited three federal agencies as being concerned with impacts on the conservation easement:

EPA- advised that it would have "very strong objections to the alteration of the easement."

Fish and Wildlife Service- Stated that it would have"grave concerns regarding any proposal to modify the existing easement."

USACE- "The easement includes upland buffers which are critical to protect the wetlands and shallows...inclusion of the buffers was crucial to the acceptance of the easement as mitigation for the Waste Management Project."

              cc. Congressman Dingell submitted two letters dated September 11, 1998 (Encl 9e and Encl 9f).  The first letter addressed the public comment period expiration date.  The second letter informed us Mr. Dingell would be unable to attend the public hearing and reiterated that he wanted all of his correspondence to be made part of the public record.  He also stated that the issue of public trust, in regards to the easement on the proposed project site, should be fully addressed at the hearing.

    We responded to both letters on September 28, 1998 (Encl 10g). We indicated the comment period had been extended to September 30, 1998.  We also indicated his correspondence was made part of the public record. 

              dd.  The USACE received a letter from Congressman Dingell dated October 7, 1998 (Encl 9h).  Mr. Dingell made reference to his letter dated May 28, 1998 and asked that the questions specifically posed in the letter be answered.  He also expressed concern about the building of the proposed bridge to Humbug Island.  He inquired if the applicant had provided an impact statement about the construction and future repairs of the proposed bridge.  He also asked if the USACE would explain any concerns with the bridge construction and the potential disruption of contaminated river sediment.  Mr. Dingell noted that the U.S Fish and Wildlife Service recommended permit denial and inquired about our position on that recommendation.

    We responded on October 30, 1998 (Encl 9i).  We informed Mr. Dingell that his concerns regarding the building of the proposed bridge were forwarded to the applicant and that we required that they specifically address those concerns before we reach our decision.  We also explained that the evaluation process will be documented in the Environmental Assessment and Statement of Findings.  We explained that we were awaiting a response from MID to the U.S. Fish and Wildlife Service's recommendations prior to our permit decision.

                  ee.  We received a courtesy copy of a letter, dated February 12, 1999, from Congressman Dingell to Russell Harding, Director, MDEQ (Encl 9j).  The letter urges that the second public hearing be held in or near Trenton or Gibraltar, as opposed to in the City of Detroit per the demand of MID.

                  ff. Congressman Dingell submitted a letter to the USACE dated May 5, 1999 (Encl 9k), wherein he restated the concerns contained in his previous correspondence to the USACE. He stated "Having reviewed the revised application, it is not clear to me that changes to protect the geographical integrity of the easement will provide ecological protection for the observed fish, birds, and mammals within the Humbug Marsh or the vegetation and other aquatic food sources on which they depend." 

The District indicated the following when coordinating the above comments to the applicant:

    1.  June 17, 1999 (Encl 10a) - The Congressman's letter raises concerns which will be weighed in the permit decision.  Please provide any information you wish to have considered.

    2. October 23, 1998 (Encl 10b)- The Congressman's letters raise concerns which will be weighed in the permit decision.  We request the applicant provide a specific, point by point response to all project and impact concerns raised in the letters.

           (2). Congresswoman Carolyn Cheeks Kilpatrick:

              aa. The USACE received a letter to Governor Engler, dated July 9, 1998 via courtesy copy (Encl 11a).  She expressed support of the proposed project and indicated it to be "a historic venture".  She also stated that "the business development in the cities of Trenton/Gibraltar would certainly be compatible with the national vision of restoring and revitalizing the core of the nation's urban cities."

              bb. Congresswoman Kilpatrick wrote a letter to Governor Engler dated November 20, 1998, which we also received via courtesy copy (Encl 11b).  She reaffirmed her support of the proposed project, citing "the desperate need for the economic revitalization of downriver and southeastern Michigan."  She also stated her belief that MID has met all legal requirements for the approvals they seek and urged the USACE to support the project.  

           (3).  Congressman John Conyers, Jr.:

              aa.  On June 19, 1998, Congressman Conyers wrote a letter to Governor Engler which the USACE received via courtesy copy (Encl 12a).  The letter stated Mr. Conyers support of the proposed development due to economic benefits the project would bring to the community.  He also recognized that MID has been attentive to environmental and ecological issues.

              bb.  On December 31, 1998, Congressman Conyers wrote to the Detroit District stating his "objections to any and all proposed modifications or alterations to the U.S. coastline of the Detroit River and its adjacent waters which will have any potential negative impact on the purity of our most precious resource: fresh water." (Encl 12b) He also wrote "We must rely on the technological expertise of the Corps to determine how the modification or alteration of any project will affect our community and our future generations."

     2.  State:

         a.  Section 401 Water Quality Certification: Certification is presumed to be waived since the Michigan Department of Environmental Quality (MDEQ) has issued their respective permit for the project (see below).

          b.  Coastal Zone Management Act:  For similar reasons, we presume that the proposal is consistent under Section 307 of the 1972 Coastal Zone Management Act, and that CZM Certification has been obtained or waived.

          c.  MDEQ denied the applicant's request to modify the conservation easement on December 2, 1998 (Encl 13a).  MDEQ subsequently denied the permit proposal by a second letter, also dated December 2, 1998(Encl 13b).

On January 29, 1999, the Detroit District denied the applicant's permit request without prejudice (Encl 14a).  We made the following points in our letter to MID:

    1.  MID "is aware of our Marina Ventures International decision in which we determined the most detrimental facet of that project was the development of the island and that the issuance of a permit which enabled that development was contrary to the overall public interest.  Your client obtained copies of that file by means of the Freedom of Information Act prior to their purchase of the property.  I would like to direct your attention to Section V. paragraph E. of the Environmental Assessment for that project where a determination was made that the significant secondary impacts associated with access to the island will cause or contribute to significant degradation of waters of the U.S. . . ."

    2.  "there continues to be a lack of any documentation or compelling argument which would alter our position regarding the significant secondary impacts resulting from access to the island." 

    3.  "A natural buffer, where clearing, cutting, mowing, thinning, pruning, and "brushhogging" vegetation does not occur, is crucial to  minimize the secondary impacts of the residential mixed use development on the aquatic resources associated with this property."

The applicant's response was a letter dated February 11, 1999, (See Encl 14b).   

        d.  MDEQ issued a modified permit to the applicant on June 9, 1999 (Encl 15a).  MDEQ's decision document dated June 4, 1999 is attached (Encl 15b).   The permit is conditioned that construction can not begin until several items are submitted/accomplished, including the following:

           (1)  final design plans

           (2) restrictive covenants for lots 312-325 (east side of the island) limiting land/water interface construction; indicated future application for a marina permit on the south point of the island to provide dockage for eastern side island lot owners is specifically not precluded

           (3) final mitigation design - a detailed mitigation plan (required development of a minimum of 12.5 acres of palustrine emergent and scrub/shrub wetland; also requires a minimum of 2.0 acres of that be coastal wetland directly connected to the Detroit River, located outside the conservation easement)

           (4) plans for sediment contamination monitoring

           (5) plans for grading/fill below the 100 year floodplain be provided and a permit be obtained for any grading or occupation of the 100-year floodplain

           (6) installation of fencing to demarcate the  easement (easement must be left in "natural and undeveloped state")

           (7) golf course management plan restricting use of pesticide and fertilizer

           (8) plan for monitoring, containing, and disposal of contaminated sediments, particularly for construction on the bridge/causeway

           (9)  a performance bond of at least $250,000 to insure wetland mitigation is completed

       e.  MDEQ vs. Applicant litigation (see section II.D. below)

          f.  Michigan Department of Natural Resources(MDNR):

Provided a letter dated May 26, 1999 stating that Humbug Marsh is a "critical spawning and nursery habitat to sustain many area fish species." and provides "quality habitat for a variety of wildlife species" (Encl 16).  They expressed concern about the possible impacts of construction, and requested that the Corps take their concerns into consideration and "abide by the letter of the law" while making our permit decision.  DNR testified at the September 15, 1998 and the May 5, 1999 public hearings.

             g.  State Historic Preservation Officer (SHPO):

           (1).  The SHPO identified the need for an archaeological survey of the project site by letter dated September 21, 1998 (Encl 17a).  The applicant was informed of the requirement to satisfy the SHPO's concerns by letter dated October 22, 1998 (Encl 17b).

           (2).  On June 18, 1999, the applicant submitted "Phase I and II Survey of the Gibraltar Residential/Recreational Development", dated June 17, 1999 and prepared by Midwest Environmental Consultants (Encl 17c), to both the Corps and the SHPO.

           (3). The SHPO provided notification by letter to the applicant's agent dated July 26, 1999 "that no historic properties are affected within the area of potential effects of this undertaking, and no further investigations are required", based on the information provided (Encl 17d).  They indicated "fulfillment of the Corps of Engineers responsibility to notify the SHPO, under 36 CFR 800.4(d)(1), 'no historic properties affected'"   

       h.  State Representative LaMar Lemmons - Rep. Lemmons participated in a meeting with the District Engineer to discuss the MID Federal action.  As a follow up, Rep. Lemons was provided a summary of previous permit projects which were similar in scope and nature to the MID proposal (Encl 18).

       i.  State Representative Triette Reeves - Submitted a letter dated July 6, 1999 supporting a timely decision consistent with the MDEQ permit issuance (Encl 19). 

     3.  Local government:

       a. Dewitt Henry, Assistant Wayne County Executive testified at the September 1998 public hearing.  He indicated they (Wayne County Executive) "decided that we would like to support the project, subject to the rulings of all regulatory agencies that are involved in this project."

       b.  We received a letter from James H. Koerber, Gibraltar Planning Commissioner to MDEQ, dated March 25, 1999 (Encl 20).  Mr. Koerber's indicated the site was never designated a natural preserve, Gibraltar needs the property developed, the City has been an economic victim of state, county, and court actions.  A zoning map was submitted to illustrate the breadth of areas which are "not appropriate for development".  He indicated 30% of the City has "little or no future use or taxes" and if the MID property is "deemed unbuildable, the City would have lost over 43% land usage".

       c. Township of Grosse Ile

           (1) Board of Trustees May 14, 1999 (Encl 21a)-Objected to the project.  The reasons were as follows:

              aa. The development would set a dangerous precedent by changing a public conservation easement to provide an economic benefit to a private developer and betray the trust of Michigan residents.

              bb. The development would destroy the last coastal wetlands on the U.S. side of the Detroit River which contain significant wetland habitat and natural features that support the ecology of the Lower Detroit River Conservation Crescent and sustainability of Lake Erie's ecosystem.

              cc. The largest river migration of Walleye and other fish in the Great Lakes would be adversely impacted. The migratory flyway and habitat of 17 species of raptors and 43 other species birds would also be adversely impacted.

           (2) Board of Trustees September 18, 1998 (Encl 21b)- Objected to the project because of potential impacts and the value of the site.

           (3) Mr. John Schweickart, Chairman, Planning Commission April 19, 1999 (Encl 21c) - Recommended that the project be denied for the following reasons:

               aa. Prudent and logical measures have not been taken to reduce wetland impacts on the site.

              bb. The impacts of construction have been understated and poorly documented by the applicant. Specifically, regarding the construction of the bridge, mitigation proposed is only equal to that of the finished structure and does not take into account the surrounding area that will be impacted.

              cc. The applicant has not provided information regarding future maintenance and repair of the sewage system and water main.

              dd. Wetland delineation and mitigation are not clearly specified in the application and need to be documented with more detail.

               ee. Development of Humbug Island is in direct conflict with the conservation easement.

           4) John Schweickart, Chairman, Planning Commission August 12, 1998 (Encl 21d)- recommended that the USACE verify the environmental conditions of the site and "not accept the submitted materials as reality." He indicated the documents provided by the company who performed the site inspection (ASTI) "were tailored to maximize site development" and that potential impacts were not accurately determined.

           5) Douglas W. Jones (Township Supervisor) August 7, 1998 (Encl 21e) -  objected to any development of Humbug marsh or island being permitted.  He stated that Grosse Ile Township has spent millions of dollars and worked to preserve and protect similar natural features.  Their letter indicates this effort demonstrates the citizens' commitment to the local environment, and the state and federal government should not allow the nearby humbug marsh be destroyed.

       d. Charter Township of Brownstown, Board of Trustees September 21, 1998 (Encl 22)- Objected to the project.  Their letter acknowledged the site as being significant wetland habitat and that the development would significantly degrade the area.  The township also states that, because of the easement in place on the property, it would "betray the trust of Michigan residents".  The Township's letter specifically cited the same reasons in the Grosse Ile Board of Trustees' May 14, 1999 letter (See above).

We coordinated the local government objections/comments with the applicant by letter dated October 27, 1998 (Encl 23).  In that letter we indicated:

    "Although the proposed work would not be located in the commenting townships, the views expressed in the enclosures will be taken into account in the permit decision as an indication of some local public interest viewpoints.  We request your consideration of the comments and a specific written response"

     4.  Public:

         a.  Support:  In response to the public notice, we received 7 letters of support (Encl 24).  At the May 1999 public hearing, 40 statements of support were given.   The groups and organizations providing written and/or verbal comments include:  African American Chamber of Commerce, Booker T. Washington Business Association, Rance Environmental, and Vision 21.  The major points made by these letters are summarized in the applicable assessment section below.  The following general points were offered for consideration:

         1) This is an opportunity for an historic African-American development.  Because African-Americans have faced adversity due to racism, this project will have socio-economic implications that will benefit the plight of the race as a whole.  It will also encourage other minority-sponsored developments.  In addition, the project will provide a race-neutral opportunity to own waterfront property, which has been denied to minorities in the past.  Other commentors indicated that the applicant was being held to more stringent environmental standards than other projects in the area.  Some indicated that the increased level of review was race-based.

          2)  The applicant has proven themselves to be environmentally sensitive by altering and downsizing their original proposal to meet the requirements of the law.  No construction is proposed for the conservation easement area, the bridge has been realigned, and the number of homes has been reduced.  Further environmental concerns of citizens and various organizations are unsubstantiated and unreasonable.

       3)  Overall public interest:  The economic and social benefits from the project outweigh any concerns about wetlands and the impacts of the project on the environment. 

          b.  Opposition/Concern:  In response to the public notice, we received 2,232 letters and cards of objection and/or   concern.  Of this total, about 323 were individualized comments (Encl 25), while the remainder were some form of pre-prepared response (Encl 43).  We received petitions signed by 707 people.  At the May 1999 public hearing, 98 statements of objection and/or concern were given.  The groups and organizations which provided written and/or verbal comments include:  Capitol Area Audubon Society, Canadian Detroit River Habitat Subcommittee, Creekside Community Development Corporation, Department of Fisheries and Wildlife-MSU, Detroit Audubon Society, Detroit Beach Association Inc., Downriver Bass Association, Downriver Chapter of Ducks Unlimited, Downriver Sport Fishing Association, Ducks Unlimited, Dundee Sportsman's Club, East Michigan Environmental Action Council, Ecloogy Center of Ann Arbor, Friends of Belle Isle, Friends of the Detroit River, Friends of the Rouge River, Great Lakes Environmental Center, Great Lakes Fishery Commission, Grosse Ile Conservation Club, Grosse Ile Nature and Land Conservancy, Groundwork for a Just World, Huron Valley Chapter of the Michigan Tournament Steelhead Fishermen's Association, Kenogamisis Fish & Game/SNO Club (Canada), Lake St. Clair Advisory Committee, Mackinac Chapter Sierra Club, Michigan Land Use Institute, Michigan Resources Stewards, Michigan United Conservation Clubs, Michigan United Conservation Clubs, National Wildlife Federation, Republicans for Environmental Protection, Southeast Michigan Group of the Sierra Club, Southeast Michigan Wildlife Rehab, Southeast Trenton Homeowners Association, Straits Area Sportsmen's Club, Trenton Sportsman Club, Wayne County Soil Conservation District, Wayne County Sportsman's Club, Wetland Foundation of West Michigan, Wyandotte Tribe of Oklahoma.  The major points made by these individuals and organizations are discussed in the appropriate assessment sections. 

       c.  We received 35 letters in support of the project (Encl 26), in response to the public notice issued August 21, 1998. At the public hearing September 15, 1998, nine people spoke in favor of the project.  Groups providing wriiten and/or verbal comments supporting the project include:  The African American Chamber of Commerce, Holy Ground Development, Inc., and Vision 21.  The issues raised were the same as those previously mentioned.

       d.  We received 77 letters objecting to the project in response to the public notice issued August 21, 1998 and 40 letters before the public notice was issued (Encl 27).  53 people spoke at the public hearing September 15, 1998.  The groups and organizations which provided written and/or verbal comments include:  American Fisheries Society, Arab Community Center for Economic and Social Services, Clinton River Watershed Council, Detroit Audubon Society, Ducks Unlimited Inc., East Michigan Environmental Action Council, Grosse Ile Conservation Club, Grosse Ile Nature Conservancy, Groundwork for a Just World, Huron River Fishing Association, Lake Erie Clean-up Committee, Lake Erie/Lake St. Clair Fisheries Advisory Committee, Lake St. Clair Advisory Committee, Land Trust Alliance, Michigan Duck Hunters Association, Michigan Land Use Institute, Michigan Natural Features Inventory, Michigan Sea Grant, Michigan State University, Michigan United Conservation Clubs, National Audubon Society, National Wildlife Federation, Oakland Land Conservancy,

Sierra Club Southeast Michigan, The Michigan Detroit River RAP Interim Partnership, The Nature Conservancy, University of Michigan Dept. of Biology, Wayne County Soil Conservation District, Wayne County Sportsmans Club, and the Wetlands Foundation of West Michigan.  The comments were similar to those from the previous permit action, with additional concerns regarding the then proposed modification of the easement.   

G.  The applicant was furnished copies of all timely objections, and was afforded the opportunity to resolve/rebut them. 

We also asked the applicant to specifically respond to several substantive issues (see above).  The applicant's rebuttal points are treated in the applicable specific assessment section.  The applicant submitted the following rebuttals/letters for the administrative record (Encl 28):

    1. 17 Apr 98

    2.  1 May 98

    3  21 May 98

    4. 27 May 98

    5.  9 June 98

    6  14 Sep 98

    7  18 Sep 98 

    8.  29 Sep 98

    9.  6 Nov 98

     10.  9 Nov 98

     11.  30 Nov 98

     12. 11 Feb 99

     13. 20 May 99 w/video & additional comments

     14. 18 Jun 99

     15. 25 Jun 99

     16. 28 Jun 99

     17. 21 Jul 99

II.  SITE HISTORY --  Various documents in this permit record contain statements by the applicant, this office, and the commenters regarding the site.  Although these statements may not directly relate to the environmental effects of the current proposal, some of them may prove relevant to consideration of the environmental setting, permanence of impacts, practicability of alternatives, and consideration of appropriate and practicable conditions to minimize long term adverse impacts.  Factual background is also necessary to understand certain references in the record.  The aspects which appear to be most relevant and the perspective which we will carry forward in this evaluation are:

A.  Past human activities on site:

    There have been numerous characterizations of the project site by the public, agencies, and MID.  We have copies of airphotos dating from 1949 to the present (Encl 29).  These show that there has been intensive farming on the uplands lying between Jefferson Avenue and Handler Drain, and on roughly half of the uplands between Handler Drain and what appears now as open water/aquatic bed wetlands.  The other half of these uplands, forming a 700 x 1400 x 1400 foot triangular area, did not appear to be farmed, but may have been used as pasture.  Mature trees appeared mostly on the northern third of the island.  The area between the island and the mainland appears to have varied considerably over the years, appearing as mixed marsh and open water in 1949, more solid marsh in 1952, more open water in 1957, managed with inclusions of diked areas in 1961, and open water in 1977.  The applicant and others have stated that the island has been used as pasture, the marsh area has been used as a hunting preserve, and there is ample evidence to demonstrate such prior human activities.

     We do not concur with assertions that the project area is a pristine or untouched native habitat.  However, our view of resource attributes must be one that incorporates not only a very long time scale, but also principles and assumptions about natural processes and temporal degrees of degradation due to human activities.  For example, vegetation strongly impacts habitat values.  Vegetation can be manipulated by agricultural activities, clearing and cutting, and the like.  Ecological succession will occur after any manipulation, so we view manipulations and the existing "crop" of vegetation only as a snapshot of the potential long term habitat.  The activities that we regulate, such as discharges of dredged and fill material, are landscape changes that have geological timeframes.  Cutting wetland vegetation is a short term impact, while filling a wetland is long term loss of the resource.  This is the timescale and perspective which we will use to value resources, assess impacts and weigh benefits and detriments in this review.

B.  Previous permit decisions:

     The site was previously proposed for development by others, including Marina Ventures International, Inc (MVI).  Detroit District letters dated November 30 (Encl 30a; review of revised development plan) and August 29, 1990 (Encl 30b; denial of initial proposal), as well as the SOF and EA dated August 27, 1990 (Encl 30c) are attached for reference.  The development concept focused on a large marina basin dredging project, but also included residential units, retail, and a hotel and conference center.  What has come to be known as Humbug Island was proposed for development with a causeway, residential lots, and a marina.   The concept went through several changes over a two year period, including a change in the participating developers.  Some of these changes were due to feedback during pre-application meetings, and from comments from members of the public and government agencies during regulatory permit processing.  We conducted a joint public hearing with the state agency then responsible for waterfront permitting, the Michigan Department of Natural Resources (MDNR).  The state denied one plan and eventually agreed to a "permittable project."  We subsequently denied a Federal permit for this plan on August 29, 1990 under Federal evaluation criteria.  Our denial letter and subsequent meeting spelled out particular major changes to minimize impacts and tip the public interest balance toward issuance.  MVI developed a revised plan which implemented these changes:  the plan deleted island development and disturbance of wetland shallows and habitat on old spoil piles along the northeast property line.  We agreed in writing to issue a permit pending results of an archaeological survey and chemical sampling of some areas of the site.  We had some additional contact with MVI to clarify certain points, but they did not respond.

C.  Conservation easement

    The State of Michigan acquired a conservation easement over the wetland complex located between the mainland and the island from Waste Management Inc., when the city of Wyandotte objected to the creation of 30 acres of mitigation wetlands near the site in a parcel known as the "Triangle site."  The mitigation was required for previously permitted destruction of wetlands associated with expansion of a landfill adjacent to I-275 in western Wayne County.  The conservation easement was recorded on August 17, 1996. The conservation easement area contains an upland buffer zone on both the mainland and the west side of the island, and the existing wetland complex located between the mainland and the island.  The easement consists of two parcels of approximately 106 acres and 6 acres located north and south respectively of the Handler Drain which crosses from northwest to southwest.  The upland portions of the easement area contained upland forest with a scrub-shrub understory.

    The Waste Management project site is located in a geographical area where Federal Section 404 authority has been delegated to the state.  However, in accordance with the agreement delegating that authority, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the Detroit District, U.S. Army Corps of Engineers maintain authority to comment on projects the magnitude of the Waste Management proposal.  Both USEPA and USFWS were actively involved in the negotiations leading to the acceptance of the easement.  Both agencies were insistent on the inclusion of the upland buffer in the easement to satisfy the Federal objection.   

D.   MDEQ vs. MID litigation. 

    In November and December of 1998, the applicant "brush hogged" portions of the site, including removal of vegetation from areas which are included in the conservation easement.  The applicant and MDEQ are involved in litigation regarding those actions in the State of Michigan 3rd Circuit Court.  

    The applicant has disputed that alteration of vegetation within areas protected by the easement is prohibited by the terms of the easement.  MID has indicated they believe the Conservation Easement does not forbid the cutting of vegetation in the upland portions of the Conservation Easement.  They argue that the issue is one of "contract interpretation" and that clearing of vegetation is not specifically listed in the easement as a prohibited activity. 

     MDEQ argues that removal of vegetation is an action prohibited by the easement.  The stated purpose of the conservation easement is to "maintain the easement premises in their natural and undeveloped condition".  MDEQ and others believe this is the primary purpose of conservation easements in general.  They maintain that although "brush hogging" may not be specifically named as a prohibited activity, it clearly alters or eliminates the natural condition. 

III.  Environmental Setting:

A.  Description of the Area:

     The Detroit River carries the outflow of Lake St. Clair to Lake Erie of the Great Lakes Basin.  It forms the border between Wayne County in southeastern lower Michigan and the Canadian Province of Ontario.  Area land use is high density residential/heavy industry/municipal.  Natural resources include the river itself, which provides residential and industrial water supplies, transportation of bulk materials and commodities along the St. Lawrence Seaway, and recreational opportunities.  Development is concentrated along the river area.  Recreational boating is popular within all of southeastern lower Michigan.  Much of the heavy industry, which tends to dominate the river shorelines, is in decline or has shut down within the last two decades.  This area south of the City of Detroit is known as "Downriver" and has been heavily hit by this economic dislocation.

B.  Waterway Characteristics: 

     The Detroit River has a large discharge averaging 144,400

cubic feet per second and a rapid flow with an average velocity of 1.4 feet per second.  Shorelines along most of the Detroit River are developed and armored by riprap or bulkheads, particularly on the mainland shore.   Both private and public boat docking facilities are common, but not as prevalent as industrial, utility, and factory uses.  Water quality in the Detroit River overall is considered fair, it generally meets established water quality standards due to recent controls

established on discharges.  This particular area, known as the Trenton Channel, receives outflows of the River Rouge, which is heavily polluted.  The sediments in the river have high concentrations of contaminants typical of industrial

wastes of many decades, such as heavy metals and organic compounds.  Slower and backwater areas of the river which are recognized for sediment accretion, including the shallows on this site and the drains on the property, are likely to have

particularly high concentrations of contaminants.

    The Detroit River is identified as an Area of Concern (AOC).  AOCs are degraded habitats identified by the International     Joint Commission (IJC).  Many areas within an AOC contain an elevated level of contaminants.

    The 32-mile Detroit River shoreline is highly developed.    From the Lake St. Clair outlet to the northern project boundary, the entire mainland side of the Detroit River is bulkheaded or armored and developed with homes, businesses, factories, or abandoned buildings.  Except for a small wetland at Elizabeth Park, Wayne County, all wetlands on the mainland side of the Detroit River upstream of the site have been filled or bulkheaded.  Some wetland complexes remain on the islands located on the Detroit River, the Canadian side of the Detroit River, and downstream of the site on the shoreline of Lake Erie.

C.  Project Area: 

    Corps of Engineers aerial photography dated 16 May 1984 is available for the proposed worksite (Encl 31).  Additionally, there is an undated oblique aerial view of the site, taken by the Detroit Free Press (Encl 32).  Also attached is aerial imagery taken during the spring of 1999, obtained from ERIM (Encl 33).

    Russell D. Kreis, Jr., Ph.D, Station Director, Environmental Research Laboratory - Duluth, U.S. Environmental Protection Agency provided a overview of primarily scientific and technical background information regarding the site and the the region, by letter dated May 6, 1998 (Encl 34).

    The project area is within and adjacent to the Trenton Channel of the Detroit River, upstream from the mouth of the Detroit River in Lake Erie. 

    The riparian parcel has approximately one mile of frontage on the Detroit River, comprising approximately 409 acres.  Of this 409 acres, approximately 231 acres is land area and approximately 178 are submerged by the Detroit River(below the Ordinary High Water Mark).  According to the applicant, the land area contains 54 acres of wetland.  There is an island known locally as Humbug island that is approximately 20 acres in size.  The site lies partially in the southernmost portion of the City of Trenton, and the northernmost portion of the City of Gibraltar, on the mainland.  Across the Trenton Channel lies the south end of Grosse Ile, a large island developed primarily with residential sites.  Lying close to Grosse Ile on that side of the Channel is a smaller island, known as Calf Island.

     The site is bounded on the north by the former Chrysler Brake Plant property, and there is a drain and plant outfall separating the two parcels along the property line.  To the west is Jefferson Avenue, a major thoroughfare for "Downriver" communities.  Beyond is the now inoperational McLouth Steel plant, a large industrial facility.  McLouth owned this property at one time but sold it to Waste Management, Inc. who placed a partial deed restriction on the property as part of an offsite mitigation package for development of one of the regions major landfills.  To the south is an apartment complex and several marinas, and the canal system that extends through residential and marina areas of the City of Gibraltar.  A major chemical producing facility is nearby, close enough that strong chemical smells have been noted during site visits.  A coal fired generating facility is located just upriver from the site. 

    Due to the natural appearance of the site and its surroundings, the site has special aesthetic and recreational characteristics.  Between the mouth of the St. Clair River, the location of a natural area known as the St. Clair Flats, and the project site, there are 45 miles of Lake St. Clair and some 22 miles of Detroit River mainland shoreline.  All of this shoreline is developed with urban, residential, and industrial uses and is devoid of such a large natural-appearing area.  If one is boating from this direction, there is an abrupt visual change of the mainland shore when reaching the project area.  To the south, Gibraltar has dense residential development extending for another mile, and there are two similar-sized natural areas of Lake Erie Metropark and Pte. Mouillee separated by another mile of residential shoreline.

     The project site is one of the few areas along the river where there is an opportunity for kayaking and canoeing in quiet backwaters within a natural surrounding.  

    Experts from the U.S Army Engineer Research and Development Center, Waterways Experiment Station (WES) provided an evaluation of buffer strips on the project site (Encl 35).  The report contains site descriptions and observations which are hereby incorporated by reference.

    The attached excerpts from the Atlas of Breeding Birds of Michigan by Brewer, et al, Riverine and Deepwater Habitats for Diving Ducks by Korschgen, The Great Lakes Marshes by Bookhout, and The Detroit River, Michigan: An Ecological Profile by Manny supplement information provided by WES and substantiate the sensitivity of diving ducks and wading birds which have been observed in and adjacent to Humbug Marsh (Encl 36a-d).

    For purposes of this assessment the site can be divided into three main areas - Humbug Island, Humbug Marsh, and the mainland (Encl 37). 

     Humbug Island is primarily upland with some wetland fringes, particularly at the north and south ends of the island.  The northern third of the island consists of mature hardwoods.  Second growth areas extend southerly, with dense shrubs along the western shore.  There are sand banks along the east side, some of which are eroding.  The overall habitat conditions are very diverse due to varied topography, and differences in age and physiognomy of vegetation.  Also, since it is an island, it is separated from disturbances near the mainland and surrounded by very shallow waters.  Discharges of warm water from industries upstream maintain a sizeable area along the east side of the island in an ice-free condition most winters.  The island provides potential and observed habitat for migrating songbirds, resting and feeding area for raptors, herons, and shorebirds.  The island provides a visual screen between the shallow marsh area and human activity of boating and recreational water use on the open river to the east. 

    During a site visit in October 1998, a biologist from the Detroit District and a representative of the Great Lakes and Ohio River Division observed a concentration of at least 5 osprey either roosting on or flying directly over Humbug Island.  Osprey are rarely seen in the metropolitan Detroit areas.  During the same visit, they saw numerous egrets roosting in trees on the Island.  A bald eagle was observed on Humbug Island during a site visit on August 19, 1999 by Gary Mannesto, Wally Gauthier, Melissa McPherson, and Dave Gesl, of the District's Regulatory Branch.  Other sitings of these raptors are reported in the public and agency comments which we received.  There have been reports of bald eagles and osprey eating their catches in the trees of the island. 

     In the past, we received much anecdotal information from local residents and others (Encl 38a-g) that there has been a unique congregation of great blue herons that overwinter in the area.  According to reports, the flock spends the day on Calf Island and then flies across the channel to the project island, and perhaps to the project mainland.  The reasons that observers give us for this use of these sites is that they are undeveloped islands where they are not disturbed by human or other intrusions, that the river stays open in this reach, probably due to thermal discharges upstream, and that there is an adequate food supply available.  These conditions are unique not only to the immediate area, but possibly to Southeast Michigan as a whole.  At other times of the year, numbers of herons are down, but other seasonal residents and migrants such as great egrets, greater yellowlegs, doublecrested cormorants, grebes, bitterns, and gallinules use the shorelines of the area because of its combination of favorable, undisturbed conditions.

     Humbug Marsh includes all of the shallow waters located between the island and the mainland, the shallows east of the island to a point where there is a distinct drop off into the river channel, and the shallow waters which extend up drains on the property.  In short, it includes all areas that are subject to inundation by the Detroit River, and to "seiche" events in which Lake Erie fluctuates due to sustained high winds blowing across its long axis.  It includes wetlands that are also more or less contiguous and banding upslope due to saturation, as opposed to runoff. 

    The east side of Humbug Island is bordered by a shallow water shelf extending up to 1,300 feet in length to the east, dropping off into deeper water.    Because of the man-influenced alterations of the majority of the Detroit River shoreline, the vast majority of similar shallow water shelf has been eliminated through filling and bulkheading.  Review of the navigation charts shows deeper waters along much of the mainland riverine shoreline.  This shelf supports several acres of communities of submerged aquatic macrophytes such as water celery, as well as invertebrate communities that afford feeding habitat for migrating and resident waterfowl, and fish spawning, nursery, and feeding habitat.  Vegetated shoals are relatively scarce in this riverine system.  Fishermen routinely drift fish with the current downstream from the power plant's warmwater effluent, along the deep waters east of the Chrysler site, fishing the edge of the drop off.  Scientific and local knowledge and belief suggests an abundance of walleye migrate in the Detroit River, with large seasonal congregations taking place adjacent to, and possibly to a lesser degree within the project site.  In the spring, large numbers of anglers are known to fish the waters east of the island during what is colloquially referred to as  "the spring walleye run".  This is one of the larger, if not the largest seasonal congregation of fishermen in the river.  Elizabeth Park, located upstream, has one of the most heavily used boat launch sites in the state, primarily used by fishermen in the spring. 

     The shelf is also used before and after the fishermen by  large rafts of canvasbacks, scaup, and many other species during seasonal migrations.  These birds are very wary of human disturbance.  During the summer, there are large congregations of other resident duck species.

    The portion of Humbug Marsh located between the mainland and the island varies in water depth and habitat compositions and is governed in part by water levels in Lake St. Clair, the Detroit River, and Lake Erie and can be influenced by wind direction.

It provides habitat for a variety of invertebrates and vertebrates including, fish, reptiles, amphibians, mammals, and birds.  Ducks nest and feed in and adjacent to the wetlands.  Muskrats and raccoons forage in the wetlands.  Raptors, including osprey and eagles feed on fish in the shallow waters of the wetland complex.  The site is protected from waves by Humbug Island.  The open water, wetland complex on-site is used as a nursery area for a variety of game fish species including Centrarchidae, Esocidae, Percidae, and forage fish from Cyprindidae.  Extensive fish sampling data is available for this site and immediately surrounding areas (Encl 39; see also Encl 34).  

     Continental migrations of songbirds such as warblers are known to occur up the river in the spring and fall.  Stopover habitat for these birds is known to depend on ever‑disappearing "islands" of trees and shrubs that still exist in an otherwise developed landscape.  This area, including the island, probably is such a stopover point, and one whose value increases as more development occurs elsewhere. 

     The mainland includes 6 wetland areas which, although "adjacent" by regulatory definition, do not directly abut the waterway or adjacent wetlands.  These areas are "distinct" in that they perform different functions and values than the open marshlands and their abutting and more fully contiguous wetlands.  These are primarily fingers or pockets of wetlands within the mainland primarily surrounded by upland; two of these pockets have direct, but narrow connections to areas which we are considering Humbug Marsh.  The pockets of wetlands integrated throughout the uplands on the mainland are not being considered part of "Humbug Marsh".  The upland portions of the site are not considered Humbug Marsh, though they do contribute to the functions and values of the marsh and river.  It is recognized by the regulatory and scientific community that vegetated buffers, including uplands, adjacent to open waters provide many of the same functions and values as wetlands (See WES report and "Vegetated Buffers" discussion within the Proposal to Modify Nationwide Permits, Federal Register Vol 64 No 139, Encl 41).

    In accordance with a mitigation agreement negotiated between the Michigan Department of Natural Resources (now acting as MDEQ), the USEPA, and Waste Management Inc., approximately  112 acres of the site are included in a conservation easement.  Approximately 101 acres of the easement is open water and marsh.

The remainder of the easement area, approximately 11 acres, is an upland buffer generally 60' wide.

    The unique combination of the shallow, open water marsh, the vegetated shelf, the undeveloped island with diverse transitional habitats including a substantial stand of large trees, and the undeveloped mainland, which also provides habitat diversity and large trees produces a unique, interrelated, interdependent habitat.  This combination is expected to be sensitive to disturbance. 

    According to the MDEQ record of decision, the Michigan Natural Features Inventory (NFI) determined that the site might contain habitat for the state threatened small mouth salamander and the king rail.  The NFI determined that the survey conducted by the applicant's consultant for the small mouth salamanders was conducted at the wrong time of the year and that the submitted survey was inadequate.

    The wetland/bottomland complex of the Detroit River is navigable and is used by fishermen.  Depending on water levels, boat access to the wetland complex is from both north and south of the island.  Fisheries sampling has revealed large numbers of game and forage fish species in the wetland complex. 

     Taken together, the site afforded a large, relatively undisturbed area of second growth uplands, several types of wetlands, shallow water riverine habitat, slackwater drains and streams, intermittent streams and drainageways, a forested mainland and island riparian shoreline, and other habitat niches.

Such an area exists nowhere else on the U.S. mainland side of the Detroit River.  

    A photograph of Humbug Island and Marsh is one of three featured on the website for the 1998 Binational Conference on Rehabilitating and Conserving Detroit River Habitats (http://www.mnsi.net/~cea/drhc/cover.htm)

IV.  Environmental Impacts of the Proposed Action

 A. Identified Physical Impacts

     1.  Effects on Water Quality

Public support:   Sedimentation rates are not expected to increase as a result of the bridge.  Comparatively, existing boat use in the area has a greater impact. 

FWS objections/comments:   Adequate storm water management be included to ensure contaminated runoff from residential lots, golf course greens, and roadways not be allowed into any wetland or waterway.

Public Objections/Comments:  The water quality functions (nutrient retention, sediment removal, groundwater recharge, flood storage and runoff delay) are considered ecologically significant to the Detroit River, and this is the only substantial piece of land capable of providing these functions.  The release of materials during construction will degrade water quality, and in the long term, nonpoint sources from use of the area will adversely affect the river, wetlands, and easements.  The amount of runoff from the site will greatly increase due to the increased ratio of impervious surfaces.  This runoff may contain fertilizer, pesticide, sewage, salt, and various other chemicals used to maintain the nearby homes and cars.  Many commenters also were concerned about sediment quality in the river and the potential release of contaminants during bridge construction.   A few commenters noted that there may be contaminants on the property itself from past industrial activities. 

Applicant's Rebuttals:

     Construction Impacts: 

     MID has committed to and MDEQ has conditioned its permit to preparation of a soil erosion control plan to insure that erosion into adjacent open water will not be created by the proposed activity.  Bridge construction will be regulated by the MDEQ permit which requires that MID prepare a sediment monitoring, containment, and disposal plan prior to bridge construction.  It is "unlikely that any dredging will be required to construct the bridge."  Some areas, such as the Monguagon Drain #2 have been sampled for contaminated sediments, and these PCB-contaminated sediments will be removed from the storm sewer catch basins upstream on the adjacent Chrysler property and from the upper storm drain as a precautionary measure.  Any other sediments to be removed from the drains will be characterized for proper management, with silt fences placed to prevent downstream migration of disturbed materials. 

     Operational Impacts:                        

     Final design of the development will include comprehensive management of site runoff through a combination of best management practices that collect, treat, detain, and reduce the discharge of surface water runoff into site waterways.  The development will be divided into 17 drainage districts that collect runoff from all impervious surfaces (including the bridge) and the majority of pervious surfaces.  There will be detention ponds that work in conjunction with the marsh system mitigation areas to allow for the settlement of solids and gradual release of water to surrounding areas.  "As a result of this series of interconnected filtration systems, the proposed project will not degrade, and has the potential to improve the overall water quality in the region."

     The design of the bridge would maintain existing water flow patterns within the marsh. 

     The golf course will have a management plan similar to other highly successful plans in the State of Michigan to control potential negative impacts to water quality.  MID's condominium plan will require the use of environmentally friendly fertilizers and herbicides.  MID quoted a book on golf course development that made a case, based on studies, that golf courses are not major sources of pollution from nutrients, as has been alleged.  MID has hired Arthur Hills, who won the International Audubon Signature Award for golf course design, and they trust that he can use techniques to achieve an environmentally friendly golf course design.

Findings:

     During construction of all proposed phases of the project, excavated, graded, and/or filled areas will be subject to erosion which will cause adverse negative impacts to water quality until these areas are stabilized against erosion. Typical sediment control measures incorporated into most approved development plans generally contain much of any generated sediment. 

    The site may contain levels of contamination which are of concern though we are not aware of available data which identifies hazardous waste levels on-site.  No information is available that indicates the worksite is not suitable for the proposed development with general land use and development site restrictions.

    We are not aware of any sediment testing efforts in the vicinity of the area which would be disturbed by the construction of the bridge.  The applicant has not specifically proposed how contaminated spoil would be managed, or indicated specific measures to be taken to avoid resuspension or release of any contaminants to the Detroit River or other aquatic resources.  In light of the limited disturbance of sediments which would occur during bridge construction, it is very likely a sediment handling and containment plan could be developed which could address a worst case scenario.  Such a plan could minimize the potential impacts of contamination.  Submission of such a plan prior to sediment disturbance would be required to minimize impacts.  If the applicant were to choose to sample and characterize the sediments, the results may warrant a less expensive handling and containment plan. 

    Construction activities associated with bridge construction will suspend sediments.  These sediments will include decomposing organic matter which will suspend in the surrounding water column, and where currents are present, be carried downstream.  This will cause a minor adverse impact on water quality by reducing dissolved oxygen levels within the mixing zones. If these sediments also contain high concentrations of deleterious contaminants, there is a potential for significant adverse impacts on water quality akin to those of a spill.  In addition, clearing of the site would increase runoff and soil erosion to the river.  The impacts of sediment suspension will be temporary with respect to dissolved oxygen and acute impacts of

contaminant exposure.  There may be long term chronic and secondary adverse impacts as this material spreads throughout the downstream waters, and as materials leach from the site to the waterway.  We do not have sufficient information on the nature of the sediments or of the potential upland contamination with which to assess the severity of these impacts.

     The proposed filling of wetlands and shallow water areas will disrupt and/or destroy areas that presently filter runoff components and small quantities of suspended and dissolved discharge constituents from outfalls in the river and the affected drains.  These would otherwise directly enter the waterway.  The various development features of the project that would replace these areas and to a more significant degree, areas of the present site which are converted from natural vegetation to paved and landscaped areas, will be new sources of pollutants.  These pollutants will include lawn fertilizers, herbicides, pesticides, road salt, oil, and grease. 

     Development of the uplands will cause increased

nutrient loading of the river and wetlands.  Development will cause additional nutrients to reach the wetland complex.  In areas of the development which would not abut existing open water areas, the development will incorporate stormwater detention basins to collect stormwater runoff and settle some solids prior to discharge to the wetland.  If the detention basins are designed with a permanent pool, wetland vegetation may grow and assimilate nutrients in the wetland vegetation from the collected stormwater.  Nutrients stimulate wetland plant growth and nutrients entering the wetland complex will be absorbed during plant growth. 

     However, MID proposes development of residential sites which would directly abut open water areas, such as the island and the mainland shoreline.  We have not seen final contours or grading plans for these areas, but standard practice is to design residential lots so that all drainage is away from the house. At least a portion of each lot would thus be sloped toward the open waters, and these areas of lawn would contribute runoff directly to the open waters.

    WES recommended buffer strips (natural, uncut vegetation) of at least 100 ft to adequately protect aquatic habitats from potential non-point source pollutants from the upland development.  They concluded the existing buffer strip(60 ft) likely is inadequate to provide proper buffering function from upland development to protect water quality.

    At present, much of the shoreline is protected by a conservation easement which prohibits individual boat mooring.  However, in areas which are not so protected, new boating and moorage areas, water quality degradation will occur due to gasoline and oil spills, boat service and maintenance, littering, and increased turbidity because of propeller wash.  In the event the easement is changed, violated, or not strictly enforced, the impacts of such activities could become significant.  Due to the sensitivity of the area offshore the eastern portion of the island, increased boat mooring and nearshore activity in this area could have significant adverse impacts if restriction against individual mooring access are not strictly enforced. 

    We would anticipate a need for heavy and constant application of deicing materials on the proposed causeway, leading to minor adverse impacts to the shallows.

     In summary, the proposed work would have at least minor short and long term negative impacts on water quality.  There is a potential for significant adverse short term impacts on water quality, but further study is needed to determine this.

     The negative impacts would be reduced greatly if the permit were denied, modified to further reduce the loss of wetlands and the size of new runoff source area, and/or issued with special conditions.  Requiring a minimum natural buffer width of at least 100 feet (as measured either from the Ordinary High Water Mark or the wetland boundary) along the entire mainland and island shoreline, including areas abutting the river, extending up the Handler Drain and its contiguous wetlands, and including the wetland complex at the northern portion of the property would minimize the adverse impacts by intercepting runoff.

     2.  Shoreline Erosion and Accretion Effects:

Public Objections/Comments:  The clearing of native vegetation will contribute to erosion and shoreline destabilization.  Development of the island will necessitate shore protection to forestall erosion. 

Applicant's Rebuttal:  Concerns have arisen over erosion of the island, and MDEQ's permit anticipates the "placement of only a bulkhead/seawall with toe stone at the shoreline after obtaining any and all necessary permits.

Findings:

    Clearing the site and land use conversion from undeveloped to residential/recreational use would increase erosion and sedimentation.

    It is probable that residential occupation of the island would lead to a desire to arrest natural erosion of the island, particularly on the east shoreline.  Removal of vegetation from this shoreline would increase the rate of erosion and would result in a need for shoreline protection.  Many shoreline protection measures which might be considered would interrupt the natural sediment budget and could increase erosion on other properties.  An increased demand and need for structures would result, thereby proliferating adverse impacts.

     In summary, minor long and short term adverse impacts are expected on erosion and sedimentation potential as a result of the proposed project.  The negative impacts would be reduced greatly if the permit were denied.

     3.  Effects on Flood Hazards and Floodplain Values:

FWS comments/objections: Lots platted in areas potentially subject to inundation be removed from consideration. In order to protect the homes and property from flooding, the applicant will have to conduct massive regrading of the project site or place large amounts of fill material within these floodplain areas.

Public Objections/Comments:  Work on the upland areas will alter the existing hydrology on the site.  As a result, the existing hydrology of the easement areas would be affected by changes in water flow and residence time.  Many commenters also expressed concern over potential hydraulic disruptions due to bridge construction. 

Applicant's Rebuttal:  MID wants to eliminate the possibility of residential homes being impacted by seiche events or other seasonal rainfall events.  MID stated that they have worked with FEMA to determine the appropriate design floodplain elevation.  They have elected to use an elevation 0.9 feet higher than that used by the surrounding community of Gibraltar, requiring each homesite to have a finish grade that is 1.1 feet above this, and a finished floor elevation at least 16 inches above that figure.

Findings:     The proposed work will take place in an area where water levels are primarily under static level control of the Great Lakes.  The volume of this contiguous water system is so vast that this project and cumulative similar projects will not induce any measurable change in the system's water level behavior.

    The project may encourage investment in and residential occupation of areas which are subject to flooding during seiche events.  The applicant has indicated a commitment to raise the elevation of such lots above the 100 year floodplain.  This could involve relatively large land mass changes which may drastically alter the overall development plans.  The lack of a specific final plan creates a situation which makes it difficult to assess other impacts of the project. 

    Likely, it is possible to undertake the proposed development of the site without adversely impacting this consideration.  However, the applicant's future actions would determine if this is the case. 

    We could include special conditions to insure that development is confined to grades above those where seiche action would impact properties or structure.  However, in light of the state of Michigan's regulatory authority over floodplains and the need to obtain floodplain permits, such considerations and concerned could be deferred to state agencies.

     In summary, the project would be expected to have very minor impacts on flood hazards and floodplain values.

     4.  Effects on Navigation

Public Objections/Comments:  The development will create an increase in boating traffic in the area.

Applicant's Rebuttal:  There will be no effect on navigation, since no boat slips are proposed and available areas will be restricted by easement.  A small area for moorage of boats at the island is within the scope of consideration by MDEQ, but is not being proposed.

Findings:

      The proposed bridge to the island is of an open pile design, with pilings set 60 feet on center.  The low beam elevation is 10 feet above mean water level.  The bridge design will not affect navigation for vessels of the size and type that normally would enter the area for fishing, exploring, bird-watching, and other passive activities which are the primary recreational boating purposes in the project area.

     A riparian owner has a general right of access to navigable waters of the United States.  This is subject to the similar rights of access held by nearby riparian landowners and to the general public's right of navigation on the water surface. 

The proposed project would not cause an undue interference with access to or use of the water's surface by riparians or the general public.

    The existing conservation easement and the state of Michigan's permit decision prohibit individual access to the waterway via individual properties.  However, it is a strong expectation of "waterfront" property owners to exercise individual access.  Issuance of this permit which facilitates the development as proposed may create the perception of riparian boating access rights by the new lot owners.  Lack of the ability to gain individual access would impact property values.  We expect, based on our permitting experiences over the years, that individual property owners will seek to reinterpret and\or challenge such restrictions.  Some property owners may violate those terms of the easement and state permit, and to construct mooring and access structures.   Any conditions restricting individual property owner access to the waterfront, particularly for mooring and or storage of watercraft, are considered unenforceable due to the inherent difficulties associated with monitoring numerous owners.   Enforceability would increase substantially if easements or buffers were to remain under common single ownership, with one responsible party.

    Conditions prohibiting individual access are virtually unenforceable under the present multi-owner proposal.  Enforceability would increase substantially if any easement or buffer were to remain under single ownership.

     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

Public support:   The project will not affect the local fishery resources. 

FWS objections/comments:  

There is preliminary evidence aquatic habitats near the mouth of the Monguagon Creek Drain may provide a refugia for native unionoid mussel species.

There may be additional secondary impacts on adjacent aquatic resources from development of Humbug Island at the density proposed.

The habitats between Humbug Island and Humbug Bar (approximately 50-80 meters to the east of the island) are important staging and feeding areas for migratory waterfowl.

Adding hard surfaced habitat to this area will provide areas for proliferation of zebra mussels. The area appears to have escaped colonization at this time.

Adequate storm water management be included to ensure contaminated runoff from residential lots, golf course greens, and roadways not be allowed into any wetland or waterway.

Michigan Department of Natural Resources comments:   Humbug Marsh is a "critical spawning and nursery habitat to sustain many area fish species."

Public Comments/Objections: 

    The area provides significant spawning and nursery habitat for the Detroit River and Western Lake Erie.  Because most of the Detroit River is deep and fast moving, even close to the shore, the slow water of the wetlands provides critical habitat to sustain the fish stocks.  The diversity of fish in the area is the highest known on the U.S. side of the Detroit River.  More than 45 species of fish spawn in the area, and walleye stage in this mile of river every spring, likely attracted by a combination of a resting area, temperature preference, basin structure, and forage species.  The area provides a world class walleye fishery as well as angling for other types of game fish, such as bass and northern pike.  Angling in the area contributes at least $1.5 million in revenue per year and also provides a great deal of recreational enjoyment. 

     Secondary impacts from development will alter aquatic vegetation and the communities that it supports.  The temperature, nutrient, and sedimentation character of runoff will be altered, which in turn will have a profound effect on macroinvertebrates and fish.  The attractiveness of the area to walleye is threatened by these secondary impacts.  Walleye may also be sensitive to the lights of the development.  In addition, release of contaminants in the sediments from bridge construction will accumulate in the food chain. 

Applicant's Rebuttal:  The project will create only minimal impact to fish resources at small open water areas during bridge construction.  Shoreline, marsh, and other open water will not be impacted by development, so there should be no impact for fish species currently using the area.  There should be no reason to expect a change in the existing fish community, since there will be little incremental change in ambient water quality, and the project is designed to protect the critical marshes necessary for the critical functions for maintaining the fish populations.  There should be no impact on walleyes due to lighting associated with the development.  The bridge design will allow free passage of flow and fish across a pre-existing berm along its alignment. 

     The zebra mussel is a firm ecological fixture in the Great Lakes, and the ability of mussels to colonize on the new bridge will not change that fact.

     There will not be any increase in boating traffic, nor any clearing of vegetation within the coastal marsh, so there should be no change in this aquatic and wetland vegetation community.  The existence of the bridge will not change the distribution of nuisance plants, such as Eurasian watermilfoil.

Findings:

    Lighting from proposed homes, roads, and automobile use would not disrupt feeding patterns of fish or other aquatic species.  We are not aware of any scientific information to support this concern and our personal experiences have been that such lighting, in fact, attracts insects and other components of the food chain and also predators such as walleye.

    Although the proposed work may provide zebra mussel attachment sites, we do not expect that this addition will adversely impact other mussel species.  It is unlikely that native mussels which could be out-competed by zebra mussels are found in this vicinity.  They are likely to have been extirpated.

    The individual size of an aquatic resource is a crucial factor in determining the relative influence and impact surrounding land use changes will have.  The smaller the site the more significant the impact; larger sites have a greater capacity to function independent of the surrounding landscape and to resist adverse impacts.  The following is a breakdown of avoided wetlands by size based on the latest summary sheet submitted by the applicant:

                   Preserved wetlands

< 1/3 acre         6 sites     0.86 ac

1/3 to 3/4 acre    3 sites     1.88 ac

3/4 to 1.5 acres   9 sites    10.32 ac

> 1.5 acres        7 sites    35.87 ac

TOTAL             25 sites    48.93 ac

The applicant's submissions are not of sufficient detail to determine the hydrological regime of individual mitigation sites nor preserved wetlands.  Based upon our experience with mitigation efforts and the impacts of surrounding land use changes on remnant wetlands, we can confidently conclude the following:

    1)  Sites < 1/3 acre would be expected to provide or retain minimal, if any, function or value in light of the proposed surrounding land use. 

    2)  Sites 1/3 to 3/4 acres are very unlikely to provide any value. 

    3)  Sites 3/4 to 1.5 acres may provide reasonable functions and values, if managed carefully and protected by substantial buffers. 

    4)  Sites > 1.5 acres would reasonably be expected to sustain or provide at least a moderate level of functions and values but still require a buffer.

    Concerns that some mitigation and preservation sites may be of limited value due to fragmentation, and surrounding land use or landscape position are valid.  To obtain or maintain at least a moderate level of aquatic habitat function, individual wetlands must maintain reasonable size and buffer standards.

    A more reasonable estimate of the actual wetland impact is at least 7.49 acres (4.75 proposed fill + 2.74 effectively eliminated) and will be approximately 17.81 (7.49 + 10.32 requiring a substantial buffer) without substantial buffers protecting the wetland.  We base this upon assessment of fragmentation and landscape position impacts on our regulatory experiences and professional judgement.  

     Construction of the proposed causeway and access road to the island would directly eliminate submersed and emergent aquatic vegetation and associated invertebrates.  Benthic communities, sedentary life stages, and eggs would be directly buried by fill, removed by excavation for pilings, or subject to smothering from sedimentation due to the disturbance of the existing bottom.  Disturbance of sediments during construction would release contaminants to the ecosystem, however most of these impacts could be minimized by proper containment and sediment handling practices.  In the proposed residential development areas and golf course, emergent vegetation and associated aquatic communities would be eliminated by fill activities.

     During construction, the turbidity caused by the runoff of unstable soils on the work site and the construction activities themselves would result in reduced phytoplankton productivity for the area, and may cause fish to relocate from the immediate area until work is completed.  The proposed fill areas along the river, particularly those associated with the approach fills, would directly destroy fish and their spawning, nursery, and feeding habitat, including species utilized in recreational or commercial fisheries.

     Construction of residential homes along riparian and wetland areas will engender serious secondary adverse impacts to aquatic resources from vegetation removal or alteration, and non-point source runoff.  Increase in nutrients due to the project would favor algae growth over rooted aquatic vegetation, causing a shift in the rest of the aquatic community.  The proposed work will alter the character of runoff on the site so as to eliminate or alter the existing algae, plants, invertebrates, and fish that inhabit the nearshore area and favor colonization by species more tolerant of the new conditions.

    Surrounding land use and treatment is a critical factor in determining the integrity of aquatic resources, including the level of functions and values.  While the direct impact area of this proposal is relatively low, it is expected that subdivision development, including large scale earth movements, will have a substantial adverse impact on many "avoided" wetlands as well as on proposed mitigation sites.  Typical subdivision and golf course construction involves significant land mass changes.  Vegetation is near totally removed, topsoils are bulldozed and stockpiled (oftentimes sold and replaced with sod), and extensive regrading of the surface occurs, with attendant alteration in natural drainage patterns.  Unless a substantial buffer remains around aquatic habitats, the impact on their biota would be substantial.

    According to technical information provided by the state of Michigan, a shallow water, vegetated, submerged shelf ranging from 300 feet to more than 1,300 feet exists east of the island. Navigation charts of the Detroit River indicate limited shallow water shelves next to deep water on the mainland side of the lower Detroit River.  The drift fishermen fish the drop-off along the deepwater edge east of the island.  Dock construction and dredging for improved open water access by riparian owners would impair and destroy this prime shallow water habitat, thereby adversely affecting fishery and wildlife resources.  Island development would encourage this type of activity.

    Waterfront property owners are very likely to have expectations of access to and an unobstructed view of the waterway.  It is anticipated that individual property owners would seek to challenge the easement restrictions, and others would violate the terms of the easement and State permit.  In addition, if the applicant's legal challenge of the "natural state" term within the easement is successful, it will severely diminish the effectiveness of any easement.  The proposed easement conditions on individual property owners are considered unenforceable due to the inherent difficulties associated with monitoring numerous owners.   Enforceability would increase substantially if easements or buffers were to remain under common single ownership, with one responsible party. 

     Construction of a bridge to the island and development of the island with homesites would promote significant cumulative and secondary impacts to aquatic resources.  Although the MDEQ permit restricts docks and dredging on the east side of the island, there is no proposed buffer requirement in this area.  The absence of a vegetative buffer would have adverse impacts on the aquatic resources offshore this area, which is known for its submersed aquatic vegetation and excellent foraging and nursery areas for fish. 

     Buffer width and condition are crucial factors in determining impacts.  Throughout the site, the proposed buffer areas are inadequate to protect aquatic resources.  The WES review determined that buffer strips (natural, uncut vegetation) of at least 100 ft are necessary to adequately protect wetland and aquatic habitats from potential non-point source pollutants from the upland development.  Based upon our staff's professional judgement wider buffers would be necessary to protect the aquatic habitat capacity of the marsh and open waters of the site. 

    The direct impacts of the proposed work (i.e. the impacts directly caused by the permitted activity) are relatively minor in comparison to the secondary impacts (i.e. those which would not occur but for the fill).  The actual acreage impacted which provides habitat for aquatic biota appears somewhat small.  However, as a result of the fill, there will be significant ecosystem impacts which adversely effect aquatic biota.  For example, removal or alteration of vegetation from the riparian zone will adversely impact areas which provide or facilitate important contributions to the food chain, provide critical habitat for certain life history stages of aquatic species, and are important components of the biogoechemical cycle.

     The proposed mitigation areas may afford some new areas of aquatic vegetation and benthic invertebrates, but we have no detailed plans with which to draw this conclusion.  The nature of the proposed mitigation in small pieces, scattered throughout the residential development and golf course would reduce their value.  The net impact on aquatic weed beds and associated invertebrates is expected to be a trade off of one type for another, most likely with lower diversity and density.  If sound measures are incorporated to ensure that the basins aren't stagnant and heavily polluted, and design of mitigation includes these types of communities, the trade‑off may be more favorable.

     There may be some replacement of habitat by the construction of the mitigation areas.  Within these areas, however, as within the uplands that will be developed, the existing upland habitat and its productivity will be eliminated, along with the allochthonous productivity that these areas presently contribute to the aquatic ecosystems that lie downslope.  Without this productivity component upslope, the nutrient budget of this edge community will be impacted.  Also, the transitional vegetation, water regime, and microtopography of these areas will be eliminated.  Therefore, we expect a major net detriment to the amphibian and lower animal edge community within the project area.

     The net result of the proposed exchange of habitats that are increasingly rare in the area for habitats that are abundant will be an overall decrease in aquatic biota diversity and productivity.  

     In summary, there would be major long and short term negative, and minor long term negative impacts on aquatic plants and animals as a result of the proposed work.  The cumulative impacts of numerous such projects would be substantively more serious.   Negative impacts could be greatly reduced if the permit were denied, modified to eliminate specific aspects of the project which will encourage significant secondary impacts, such as the causeway, and/or issued with special conditions to require a substantial  buffer strip in common ownership, and to control turbidity during and after construction.

     The existing conservation easement and the proposed easements or buffer required by the MDEQ would reduce, but not eliminate nor minimize, adverse impacts on aquatic resources. 

     2.  Effects on Terrestrial Biota

Public support:   No terrestrial species will be harmed by the proposed development.  Other developments have taken place throughout Detroit without diminishing animal populations. 

FWS objections/comments:  

The habitats between Humbug Island and Humbug Bar (approximately 50-80 meters to the east of the island) are important staging and feeding areas for migratory waterfowl.

There are reports of bald eagle (Haliaeetus leucocephalus) sightings within the project area.  

Public Comments/Objections:

    The area provides permanent and migratory habitat for more than 65 species of birds, including 17 species of raptors.  Urban natural areas such as this are particularly important to migrating birds.  Species noted from the site include: osprey, black-crowned night heron, caspian tern, common tern, great blue heron, common loon, belted king fishers, and lesser yellowlegs.  Many of these species, especially Neotropical migrants, are experiencing population decline due to loss of habitat.  The North American Waterfowl Management Plan also identifies Humbug Marsh as an area of critical waterfowl habitat.  The marsh is one of the few remaining areas of the river producing beds of wild celery, a critical food for migrating waterfowl, particularly redheads and canvasbacks.  Large groups of diving ducks have been observed rafting at the south end of Humbug Island in late winter.  Species observed regularly at the site include: blue-winged teal, wood ducks, mallard, American black duck, northern shovelers, green-winged teal, ruddy duck, goldeneyes, scaup, redheads and canvasbacks. 

     Development of the site will remove vegetation critical to wildlife populations.  Research on bird populations adjacent to developed areas has documented reduced numbers.  Similar research on waterfowl has demonstrated human activity adversely impacts foraging and social behavior, disturbs bonding, increases predation, and leads to decreased waterfowl density.  Amphibians will also be at risk, as vegetation removal has been demonstrated to reduce amphibian populations.  A buffer over 500 feet is necessary to protect amphibians.

Applicant's Rebuttal:

    MID strongly disagrees with FWS characterization of uplands on the project site.   The vast majority of upland on the mainland is either disturbed, or exhibits low quality, scrub vegetation with a predominance of hawthorne and scattered areas of cottonwood, elm, and silver maple.

    Waterfowl would easily move under, over, or around the bridge, therefore, flight patterns would not be significantly affected.  The project will have no effect on nesting habitat for ducks.  Any disturbance to sensitive wildlife in the marsh will be extremely limited to the location and period of individual house construction.  After construction, human activities will be largely restricted to the inland portions of the development, away from the environment used by waterfowl for nesting, cover, and feeding.  Uncontrolled hunting would cease.

    Statements about the biodiversity of bird species and insect life in and around the project site are very broad and unspecific, and they require more specific data and information to be evaluated.  They are subjective beliefs not based on objective information. 

     The golf course will be designed to foster wildlife conservation, habitat conservation, and serve as an ecological sanctuary.  The ducks which use the riverine habitats will not be impacted because there is no work proposed for these habitats.  Although bald eagles and osprey may have used the trees on the island for perching, their are no indications that either species uses the area for breeding purposes.  Reports of persistent eagle activity at Humbug Marsh are lacking.

Findings:

     The project, specifically clearing of the riparian area,  would eliminate/alter reproductive, foraging, and resting habitat, and interrupt a travel corridor for upland game birds, waterfowl, wading birds, shorebirds, songbirds, small and large mammals, as well as for reptiles, amphibians, and invertebrates which are important in the food chain. 

     Construction and clearing along the shoreline would eliminate/alter habitat for amphibious animals and other organisms which require the natural land-water transitional habitat and sheltered shallow waters.

     The project, in particular, the proposed causeway allowing development of the island, would create some areas of landscaped upland that will furnish habitat for those few species adapted for life under these maintained conditions.  The net exchange of habitats that are increasingly rare in the area for habitats that are abundant will be an overall decrease in terrestrial biota diversity and productivity.  

    Wildlife impacts on the site are potentially the most significant adverse impact associated with the project.  The overall site is a relatively rare and unique habitat and is one of the few remaining vestiges of a habitat which was once regionally abundant.  There is ample documentation and testimonials included in the attached Enclosures to support this conclusion.

     The project site is currently large and undeveloped, is highly productive and diverse, and relatively restricted from humans, machines, and in the case of the island, from some predators. 

    Proposed construction of the residential development and golf course would remove existing habitat in the wetland impact areas and over most of the uplands on the site.  This would cause a substantial long term adverse impact on nesting, feeding, and resting habitat for waterfowl, wading birds, shorebirds, and songbirds, as well as for small and large mammals.  Upon completion, human activity, including noise, people, and vehicle movement, would displace wildlife that exist on the site and those that use the area for roosting, resting, rearing, and the foraging habitat of the adjacent upland.  The raptors, predators, and deer would likely not use the area after development of the mainland and island because of the human presence in the uplands.

     The development of the uplands on the island and the mainland would destroy a large area that is currently used by many species of migratory songbirds and other types of birds.  Current research on migratory songbirds has focused on habitat loss all along their routes as a key to declining populations.

    At the uplands immediately adjacent to Humbug marsh, there will be considerable clearing of vegetation, even if the state of Michigan is successful in its enforcement of "no clearing" on their 60' buffer.   There will be a tremendous change in the level of human activity in terms of construction and subsequent occupation of housing.  This would be expected to increase stress and/or drive away more sensitive wildlife species, including some migrating ducks, eagles and osprey, and other wild birds.  Only those species or individuals that are tolerant of such conditions will use the area.  We would not expect eagles and osprey or other birds of prey to use the island nor the upland edges of the mainland adjacent to the marsh and open waters to the extent they do now, and there is a good possibility that they will not use them at all.  The conclusions about the bird life would extend to mammals, as well.

     The existing conservation easement and the proposed easements or buffer required by the MDEQ would reduce adverse impacts on terrestrial resources.  However, waterfront property owners are likely to have expectations of access and an unobstructed view of the waterway.  It is anticipated that individual property owners would challenge the easement restrictions, and others would violate the terms of the easement and State permit.  In addition, if the applicant's legal challenge of the easement is successful, the easement will be ineffective in preserving overall environmental quality and integrity.  The proposed easement conditions on individual property owners are not effectively enforceable due to the inherent difficulties associated with monitoring numerous owners.   Enforceability would increase substantially if easements or buffers were to remain under common single ownership, with one responsible party. 

     Although the MDEQ permit restricts docks and dredging on the east side of the island, there is no proposed vegetative buffer requirement in this area.  In this area, the most "wildlife beneficial riparian vegetation (i.e. large trees, snags, shrubs, thick tangled impenetrable vegetation) could be removed by property owners. 

    Throughout areas of the site restricted by the conservation easement, their size is considered inadequate to protect terrestrial resources.  As a result, there would be a loss of perching and nesting sites for wary birds, a loss of songbird breeding and migratory stopover areas, a loss of habitat for amphibious animals and other organisms which require the natural land-water transitional habitat, and disturbance of aquatic avifauna by human activity and pets.  The review by the Waterways Experiment Station determined that a buffer width of 300 feet is necessary to provide suitable wildlife habitat and movement corridors.  

Mitigation -- 

    The proposed wetland mitigation areas would, in some cases, be converted from existing upland that already furnishes wildlife habitat both by itself, and as part of an edge effect among the interwoven wetlands.  Creating a different edge of new wetlands would provide a trade off and no expected net gain.  Mitigation of lost wildlife habitat functions is not expected to result from these efforts.

Summary --

      The project will cause a significant long term adverse impact on nesting, feeding, and resting habitat for waterfowl, wading birds, shorebirds, and songbirds, as well as for small and large mammals.  For bird life in particular, the proposed mitigation measures of preservation or setting aside a 60' strip on the west side of the island and along the eastern shore of the mainland, as well as the proposed wetland creation, will not prevent the significant loss or degradation of the most significant attributes of this area.  The area is currently large and undeveloped, is highly productive and diverse, and is relatively restricted from humans, machines, and in the case of the island, from some predators.

     The project is expected to have significant short and long term adverse negative impacts on terrestrial organisms.  While there are large areas of upland at the site that would be lost through development outside of Corps jurisdiction, the most significant impact would occur from the elimination of wildlife habitat on the island if the permit is issued as proposed.  The cumulative impacts of numerous such projects would be more significant.

     Negative impacts would be greatly reduced if the permit is denied or modified to exclude the island causeway (and therefore the island development) and to revise, relocate, and possibly consolidate the wetland creation to compensate for wildlife impacts.  Special conditions which would establish easements/buffer strips of sufficient width to preserve wildlife use levels within the waterway, wetlands, and an appropriately sized upland buffer could decrease secondary impacts of development.   It would be crucial to  maintain easements/buffers in one ownership to increase enforceability.

ALTERNATIVES

    WES recommended:

    1.  Buffer strips of at least 300 ft for provision of suitable wildlife habitat and movement corridors.

    2.  Impacts of the clearing operation conducted in the conservation easement be offset by rehabilitating the existing easement area with plantings of preferred wildlife trees (e.g. oaks, hickories) and shrubs, and by extending the width of the buffer to reclaim habitat lost by the clearing operation.

We are considering the following alternatives to address adverse impacts (See Encl 42a-c):

    1.  Full application of WES' 300' recommendation to all areas including the island, the mainland shoreline along the open water, handler drain and adjacent wetlands, and to all 6 pockets and fingers within the upland portion of the site.

    Benefits:  Minimizes the adverse impacts to aquatic resources and preserves a substantial amount of wildlife habitat.  Wildlife habitat protected would include that which is crucial to the continued use of species which have life histories directly related to or dependent upon the aquatic environment (water dependent [WD] species).  Examples of such species are bald eagles, osprey, great blue herons, black crowned night-herons, great egrets, waterfowl, shorebirds, terns, gulls, kingbirds, turtles, amphibians, specific life stages of certain aquatic insects.  Also protected would be species which are not dependent upon the adjacency of large scale aquatic resources.  This would include passerine birds, potentially deer, squirrels, rabbits, some reptiles, and other species which are important in the food chain.

    Detriments:  Substantial loss of wildlife habitat outside protected buffers.

    2.  Full application WES' 300' recommendation to the island, to the peninsula of upland on the north portion of the site, to the remainder of the shoreline beginning at the northeast portion of the site (adjacent a major wetland area) and continuing southeast along the shoreline abutting Humbug Marsh, to the uplands adjacent to the major wetland area located on the extreme southeast portion of the mainland, and to the uplands extending approximately 1/2 way up each side of Handler Drain (incorporating the widest portion of the drain and the contiguous wetlands).

    Areas not included would be the wetland pockets and fingers, which are either separated from the marsh or only contiguous by a narrow connection, and the upper reaches of Handler Drain, where it narrows.  We would not be applying the WES 300' recommendation to areas were we would expect the level of usage by the WD species to fall off dramatically.  

    Benefits:  Still protects the most critical habitat for WD species. 

    Detriments:  Sacrifices some habitat for WD species, substantial loss of habitat for non-WD species, loss of important and productive vernal pool habitat, loss of areas which would provide greater habitat to WD species during higher water level periods.

    3. Full application of the WES 300' recommendation to the island and to the peninsula of upland on the north portion of the site.  Require a 150' buffer along the remainder of the shoreline beginning at the northeast portion of the site (adjacent a major wetland area) and continuing southeast along the shoreline abutting Humbug Marsh, to the uplands adjacent to the major wetland area located on the extreme southeast portion of the mainland, and to the uplands extending approximately 1/2 way up each side of Handler Drain (incorporating the widest portion of the drain and the adjacent wetlands).

    Benefits: 

       --Fully implements the recommendation in the most valuable areas, the island and the peninsula (approximately 45% of the shoreline).   Protects slightly less valuable shoreline areas (65%) to a lesser degree.  It is likely there will remain a relatively high degree of protection for the WD species.

    Detriments:

       --Increases (balances) development potential at the cost of wildlife habitat.

    Additional measures to be considered for this alternative:

       -  The 150' area upland area adjacent the waterway and/or associated wetlands which was cleared must be rehabilitated to increase the buffering capacity

       - more liberal application of 404(b)(1) guidelines for wetland fills in wetland pockets and fingers to increase development potential.  Impact area may increase but loss of functions and values not as serious as in areas adjacent to major wetland resources.

    4.  Further reduction of buffer on Island or Peninsula and/or further reduction of 150' buffer:  Represents a significant degradation of aquatic resources.

     3.  Effects on Wetlands:

EPA objections/comments:  The proposed mitigation would be scattered throughout the site and "will only further the fragmentation of habitat on the site and is not likely to offset project losses."

FWS objections/comments:  

Individual lots platted within the easement boundary create additional likelihood of secondary impacts to the valuable coastal wetland communities.

Residential lots should be reconfigured to avoid filling in palustrine wetlands for the purposes of house construction and golf course development.

The applicant should be required to provide for agency consideration, in advance, a detailed mitigation plan that meaningfully replaces wetland functions and values impacted.

No authorization should be given for the placement of fill material in coastal marsh habitats.

FWS is opposed to giving mitigation credit for replacement of forested and scrub-shrub wetland habitats with storm water detention/retention basins or secondary/tertiary storm water treatment areas.

Regrading or filling of low lying areas adjacent to the current emergent marsh habitats will serve to prevent the natural shifting and "migration" that occurs during years with high water levels.

Recommendation-- Lots adjacent to the conservation easement should be separated from the coastal marsh habitats by a platted commons area within the easement boundaries.

Recommendation-- Lots adjacent to wetland communities and not within the conservation easement be required to maintain a buffering strip of natural vegetation between the landscaped areas surrounding any development and the marsh communities.

Recommendation-- The applicant should be required to provide additional documentation, including cross-sections, in order to better determine potential impacts that development of flood prone areas may have on the adjacent aquatic communities.

Recommendation-- Wetland fill on the northern property line for the proposed access road be further reduced with no fill permitted in open water areas.

Public Comments/Objections:  Changes in hydrology will alter the source and balance of nutrients entering the wetlands from runoff.  This in turn will cause a disruption of the biotic community. 

Public support:  Wetland impacts are limited to road crossings, and they will be located on the periphery. 

Rebuttal:  See mitigation discussion below.

Findings:

     According to the applicant's plans, approximately 4.78 acres of palustrine emergent, forested, and scrub-shrub wetlands would be eliminated or covered as a direct result of the proposed discharge.

    A more reasonable estimate of the actual wetland impact is at least 7.49 acres, and likely approximately 17.81 acres without substantial buffers to protect the wetland.  This estimate is explained in section B.1. Effects on Aquatic Biota, above.  

    Surrounding land use and treatment is a critical factor in determining the integrity of aquatic resources, including the level of functions and values.  While the direct impact area of this proposal is relatively low, it is expected that subdivision development, including large scale earth movements, will have a substantial adverse impact on many "avoided" wetlands as well as on proposed mitigation sites.  Typical subdivision and golf course construction involves significant land mass changes.  Vegetation is near totally removed, topsoils are bulldozed and stockpiled (oftentimes sold and replaced with sod), and extensive regrading of the surface occurs, with attendant alteration in natural drainage patterns.  Unless a substantial buffer remains around aquatic habitats, the impact on their biota would be substantial.

    The applicant refers to impacted wetlands as "marginal" or low quality and suggests that mitigation wetlands would be of higher quality than those replaced.  The applicant has not offered a scientific basis for such a determination.  Permit applicant's commonly assert a "value" judgement based primarily upon the hydrology of the wetland.  Wetland hydrology is a continuum, ranging from permanently inundated to seasonally or periodically saturated or flooded.  It appears the applicant equates "marginal" quality with "dryer end" wetlands and high quality with a greater frequency, duration, and or level of flooding or inundation.  This viewpoint equates wetland "recognizability" with value, which does not have a scientific basis.  For example, many vernal pools have a hydrologic regime which barely meets the regulatory criteria for jurisdiction.  However, these areas are recognized by the scientific community as among the more productive wetlands known, with the majority of that productivity occurring within a short, critical time frame.  These areas are important and valuable because the timing of that productivity coincides with the early growing season, when food sources are otherwise limited and when many species are in migration and in need of high energy food sources.  They are significant contributors in the food chain.  Many of the "marginal" quality wetlands on this site are expected to serve this function. 

    There are two distinguishable wetland groups on this site.  The most significant is the area we previously defined as Humbug Marsh.  The second group is the wetland pockets and fingers which are either not within or contiguous to the River or Handler Drain or are linked by narrow connections.  There is not sufficient basis to term the pockets/fingers as "marginal" or "low quality", however, it is reasonable to conclude that the relative value of Humbug Marsh is greater.  We base this primarily on the fact Humbug Marsh is critical wildlife habitat (particularly for the water dependent species defined earlier). 

     The recognized wetland functions which would be affected as a result of the project are:  natural drainage; sedimentation patterns; runoff filtration and purification; erosion protection; food chain production; general habitat and nesting, spawning, rearing and resting sites for aquatic and terrestrial species.

     The effects on each of these functions are as follows:

          a.  Natural Drainage:  Construction of the proposed residential areas and golf course basins would increase runoff rates over the existing undeveloped forest and scrub.  Downslope, the water budget of receiving wetlands would be greatly altered.  It is fully expected that wetlands which may be "avoided" under the current plan could be eliminated by drainage basin changes.

          b.  Sedimentation Patterns:  Runoff characteristics would change as uplands are developed, changing from stabilized soils to unstable, erodible soils during construction, and eventually to impervious surfaces.  Failure to implement appropriate soil erosion sedimentation control measures could result in substantial impairment of the easement area and wetland resources through soil runoff during construction and storm events.  If the proposed project were constructed with appropriate environmental safeguards to insure that soil and debris does not wash or erode into the easement area, direct impacts on sedimentation patterns in wetlands could be minimized.

          c.  Runoff filtration and purification:  Wetlands which currently serve filtration and purification functions would be eliminated by fill.  Some of these areas, along with development on the uplands would convert potentially valuable runoff filtration areas into new source areas for runoff.

         d.  Erosion protection:  Some of the wetlands along the existing drains and open water areas will be either directly eliminated or will be degraded by secondary impacts.  These areas presently provide a measure of protection for uplands and wetlands shoreward of them, and destruction of the wetlands may increase erosion.  Overall, this adverse impact would be minor.

          e.  Food Chain production:  The wetlands that would be destroyed or otherwise altered by the project are of various types, each of which converts carbon, water, and nutrients into large amounts of plant materials.  These are in turn used within the food web of the ecosystem by other organisms. The wetlands would be converted to far less productive areas.  The wetland

creation areas, even if successful, would probably not be as productive. 

          f.  General Habitat and Nesting, Spawning, Rearing, and Resting Sites for Aquatic and Terrestrial Species:  This is  described in other sections of this assessment.  This is one of the main functions of the wetlands that would be destroyed by the project. 

     As these are the last substantial wetland resources remaining on the U.S. mainland side of the Detroit River from Lake St. Clair to Lake Erie, the project will result in an impairment of wetland resources. 

MITIGATION PLAN---

Public support:  The proposed mitigation of 12.56 acres will compensate for the loss of 4.75 acres expected to be impacted.

Public comments/objections:  Wetland mitigation is an inappropriate and often ineffective substitute for an intact ecosystem.  The proposed mitigation plan is inadequate, due to the size and location of mitigation areas.  The existing easement is too narrow to protect the marsh due to the density of the proposed housing.  The existing easement will also be compromised by adjacent development activities.  Many of the proposed features of the development are located immediately adjacent to the easement, and are bound to have impacts on the easement both during construction and operationally after they are completed.  Commenters also questioned the enforceability of the proposed easement, given the numerous property owners involved, and their inevitable temptation to use or alter the easement areas. 

Applicant's rebuttal: 

     The proposed mitigation is totally appropriate for the type and function of wetlands that are to be impacted by the project.   All mitigation wetlands will be hydrologically linked to the Detroit River and will replace marginal, isolated wetlands to be impacted by the development.  "No high quality marsh habitat will be impacted and no open water will be filled."  A total of 12.5 acres of wetland will be created, including two acres of coastal marsh, as required by MDEQ.  The replacement wetlands will be linked wetland systems incorporating diverse ecosystems.  The less than 5 acres of wetlands that will be impacted by MID are small isolated pockets of wetlands that are marginal, separate, and distinct, existing "wholly on upland areas that will be disturbed primarily for the purpose of road and utility crossings.  The wetland mitigation plan is a state-of-the-art plan that will ensure that mitigation wetlands will have adequate supplies of water in which to maintain the flora and fauna associated with wetlands.  The mitigation wetlands will be a higher quality than the wetlands which they will replace.  They will depend on existing storm water drainage patterns on the site that will be captured to recreate the same drainage patterns that allowed these existing wetlands to develop.  The small watersheds will feed into a series of detention areas, maintaining the general and current flow of water from the northwest to the southeast toward the river.

   The majority of the mitigation wetlands connect to existing wetlands and provide a mix of emergent and scrub environments.  This habitat will be more diverse and higher functioning than the existing scrub-shrub wetland habitat and the Corps' proposed more consolidated mitigation site.  Similar integration of stormwater detention basins with wetland mitigation have been utilized at other sites in southeast Michigan, and have been endorsed by local regulatory agencies and MDEQ permit.  The replacement wetlands will be "planted with wetland vegetation to establish an integrated wetland community, consisting of scrub-shrub, high marsh, and low marsh environments.  The individual basins will be similar in design, with intermittent scrub-shrub areas intermingled with high and low marsh areas, forcing water through a variety of environments.  Within the scrub-shrub areas, plantings will consist of red and silky dogwood, highbush cranberry, and button bush.  High marsh plantings will include pickerel plant, wapato duck potato, hardstem bulrush, burreed, and cattails.  Low marsh vegetation will include bassweed, sage pond weed, coontail, and wild celery."

     "As wetland vegetation establishes within the mitigation areas, it is anticipated that a variety of wetland-dependent animals, micro-invertebrates, amphibians, reptiles, mammals, and bird species will begin to colonize the site."  MDEQ conditions require very specific plans, monitoring plans, a $250,000 performance bond, and other very stringent conditions in order to ensure success.

Findings:

     According to the wetland summary acreage chart in the applicant's latest submitted mitigation plan (see Encl 1), MID is proposing to create 21 sites to provide 12.56 acres of mitigation.  Review of the individual plan sheets suggests the proposal also involves an additional 6 sites which we estimate would provide approximately 1.22 acres (the applicant did not provide acreage estimates).  An additional site (M22) was referenced but not shown on any plan.  Another site (M-28) was not indicated on the overall plan view and acreage was not provided, however, it was estimated to be approximately 1.5 acres by comparing the pond size dimensions to the mitigation area, as shown on the individual drawing.  It appears the plan proposes approximately 15.3 acres mitigation.  The mitigation ratio is approximately 3:1 (assuming approximately 4.8 acres of direct wetland loss).

     The proposed mitigation plan, while recreating wetlands at a larger ratio, will not provide functional replacement of wetlands impacted by the proposed project.  The loss of 1.00 acre of coastal wetlands (fully contiguous to and actually within the Detroit River), due to fills associated with bridge access approaches to the island is not functionally replaced under the proposed mitigation plan.  The proposed plan will not successfully provide mitigation wetlands which are contiguous to Humbug Marsh or the open waters of the Trenton Channel and will not result in an overall net ecological gain.  Several of the mitigation sites are adjacent to remnant wetland pockets which would themselves be fragmented by development. 

    Overall, the existing mitigation plan does not provide adequate detail regarding wetland construction design, hydrology, and planting.

    Based on the plans which the applicant provided and in consideration of our experience with wetland creation as mitigation, several conclusions can be drawn:

    1.  There is a high degree of uncertainty or an expectation of failure for a critical component of the mitigation plan on 25 out 28 mitigation sites (8.0 out of 15.3 acres).  The applicant's plans show most of the final created wetlands as providing three habitat types (high marsh, low marsh, scrub-shrub) with a high degree of interspersion to enhance wetland function and values.  The overall size of a wetland is a crucial factor in determining potential to provide such characteristics. 

Sites less than 1/3 acre in size are not likely to accomplish this successfully.  Consequently, 12 sites (approx 2.3 acres) will fall short of this expectation. 

It is difficult to provide such characteristics for mitigation sites between 1/3 and 3/4 acres; the degree of uncertainty is high.   This applies to 12 sites (approx 5.7 acres). 

The degree of uncertainty is reduced substantively, for sites greater than 3/4 acre.  Either 2 or 3 sites fit in this category (approximately 5.6 to 7.1 acres).

    2.  It is unlikely that 9 proposed mitigation sites (4.0 acres) will provide a net water quality benefit.  It is recognized that uplands adjacent to waters of the United States provide many of the same functions and values of wetlands, including removal of pollutants and nutrients from water, and support aquatic habitat value.  The mitigation effort at these sites primarily involves conversion of upland areas to wetland.  There will not be a net water quality benefit as a result of this action at these 9 sites, based on the information which was supplied and our best professional judgement.

We have strong reservations concerning the applicant's claims the plan is state of the art and the integration of retention basins and mitigation wetlands will result in a net water quality enhancement.  It appears the concept of collecting water from surrounding paved and developed areas and releasing it to wetlands, thereby utilizing those wetlands to treat runoff which would otherwise directly enter the waterway appears reasonable.  The actual ability of these wetlands to perform that function would be heavily dependent on the final design, construction, and maintenance of these areas, introducing a moderate to high degree of uncertainty.  There is a potential for 18 sites (6.9 acres) to achieve this net benefit. 

We can not determine if one site (M6-4.2 acres) would result in a net water quality impact gain, since the plan shows an "irrigation supply" pond and it is not evident if this is a retention/collection pond or groundwater discharge/intersection area.

    3.  It is unlikely the proposed mitigation plan will result in a net habitat gain at 11 sites (7.67 acres), and is likely to have a net adverse impact at 18 sites (7.85 acres).  Again, it is recognized that uplands adjacent to waters of the United States provide many of the same functions and values of wetlands, including removal of pollutants and nutrients from water and support of aquatic habitat value.  The mitigation plan involves the conversion of areas which would, in there present state, act as buffers and/or increase habitat diversity (i.e. fingers or islands of upland within or surrounded by wetland).  It is likely the applicant's plan would reduce diversity and overall habitat quality.  We would expect little or no net habitat gain in situations where the mitigation site is of small size, is not adjacent to other habitat, and/or is isolated from other habitat by residential or other development. 

BUFFER WIDTH

    This factor has been discussed in previous sections.

the concepts and conclusions should be considered within this section also. 

    The proposed buffer width of 60 feet is not considered adequate to protect the wetland resources.  Human and domesticated animal intrusion into the wetlands of the

easement area would cause impairment and destruction of the

natural resources of the easement, particularly affecting wildlife that resides in the vegetation and use the open waters and wetlands. 

    Waterfront property owners are likely to have expectations of access and an unobstructed view of the waterway.  It is anticipated that individual property owners would challenge the easement restrictions, and others would violate the terms of the easement and State permit.  In addition, if the applicant's legal challenge of the easement is successful, the easement will be ineffective in preserving overall environmental quality and integrity.  The proposed easement conditions on individual property owners are not effectively enforceable due to the inherent difficulties associated with monitoring numerous owners.  Enforceability would increase substantially if easements or buffers were to remain under common single ownership, with one responsible party. 

     In summary, the project will have significant, long term, negative impacts on wetlands.   The mitigation plan would not be expected to offset the adverse impacts of the project.  There would be a substantial net loss of wetland functions and values. 

     Negative impacts can be reduced if the permit is  denied, modified to eliminate the causeway to the island, and/or issued with special conditions substantially increasing the width of the buffer areas.  

We are considering the following alternatives to address adverse impacts (See Encl 42):

    1.  Full application of WES' 300' recommendation to all areas including the island, the mainland shoreline along the open water, handler drain and adjacent wetlands, and to all 6 pockets and fingers within the upland portion of the site.

    Benefits:  Minimizes the adverse impacts to wetland resources and preserves a substantial amount adjacent buffer and edge habitat.  Edge  habitat protected would include that which is crucial to the continued use of species which have life histories directly related to or dependent upon the aquatic environment (water dependent [WD] species).  Examples of such species are bald eagles, osprey, great blue herons, black crowned night-herons, great egrets, waterfowl, shorebirds, terns, gulls, kingbirds, turtles, amphibians, specific life stages of certain aquatic insects.  Also protected would be species which are not dependent upon the adjacency of large scale aquatic resources.  This would include passerine birds, potentially deer, squirrels, rabbits, some reptiles, and other species which are important in the food chain.

    Detriments:  Substantial loss of wetland resources outside protected buffers.

    2.  Full application WES' 300' recommendation to the island, to the peninsula of upland on the north portion of the site, to the remainder of the shoreline beginning at the northeast portion of the site (adjacent a major wetland area) and continuing southeast along the shoreline abutting Humbug Marsh, to the uplands adjacent to the major wetland area located on the extreme southeast portion of the mainland, and to the uplands extending approximately 1/2 way up each side of Handler Drain (incorporating the widest portion of the drain and the contiguous wetlands).

    Areas not included would be the wetland pockets and fingers, which are either separated from the marsh or only contiguous by a narrow connection, and the upper reaches of Handler Drain, where it narrows.  We would not be applying the WES 300' recommendation to areas were we would expect the level of usage by the WD species to fall off dramatically.  

    Benefits:  Still protects a relatively substantial buffer/edge and protects the most critical habitat for WD species. 

    Detriments:  Sacrifices some buffer, edge, and habitat for WD species, substantial loss of habitat for non-WD species, loss of important and productive vernal pool habitat, loss of areas which would provide greater habitat to WD species during higher water level periods.

    3. Full application of the WES 300' recommendation to the island and to the peninsula of upland on the north portion of the site.  Require a 150' buffer along the remainder of the shoreline beginning at the northeast portion of the site (adjacent a major wetland area) and continuing southeast along the shoreline abutting Humbug Marsh, to the uplands adjacent to the major wetland area located on the extreme southeast portion of the mainland, and to the uplands extending approximately 1/2 way up each side of Handler Drain (incorporating the widest portion of the drain and the adjacent wetlands).

    Benefits: 

       --Fully implements the recommendation in the most valuable areas, the island and the peninsula (approximately 45% of the shoreline).   Protects slightly less valuable shoreline areas (65%) to a lesser degree.  It is likely there will remain a relatively high degree of protection for the WD species.

    Detriments:

       --Increases (balances) development potential at the cost of wetland ecosystem function and value.

    Additional measures to be considered for this alternative:

       -  The 150' area upland area adjacent the waterway and/or associated wetlands which was cleared must be rehabilitated to increase the buffering capacity

       - more liberal application of 404(b)(1) guidelines for wetland fills in wetland pockets and fingers to increase development potential.  Impact area may increase but loss of functions and values not as serious as in areas adjacent to major wetland resources.

    4.  Further reduction of buffer on Island or Peninsula and/or further reduction of 150' buffer:  Represents a significant degradation of aquatic resources.

     4.  Effect on Conservation and Overall Ecology:

FWS Comments/objections:

The site is important to both resident and migratory fish and wildlife species.

The coastal wetland complex on the project site represents the last remaining coastal wetlands on the Michigan mainland shoreline of the Detroit River.

The project will have significant negative impacts to valuable habitats within the easement.

The basis for acceptance of preservation as the sole means of compensatory mitigation in the Waste Management, Inc. case was the high value of the subject marsh complex and the extreme scarcity of this habitat type and quality on the Detroit River.

Congressman Dingell's comments/objections:  "Having reviewed the revised application, it is not clear to me that changes to protect the geographical integrity of the easement will provide ecological protection for the observed fish, birds, and mammals within the Humbug Marsh or the vegetation and other aquatic food sources on which they depend." 

Michigan Department of Natural Resources comments:   Humbug Marsh provides "quality habitat for a variety of wildlife species"

Public Comments/Objections: 

    Approximately 97% of coastal wetlands along the Detroit river have been destroyed in the last seventy years.  The project site is an area with regional significance for fish and wildlife resources.  The wetlands in question are a significant part of the remaining three percent.  Disturbing the area makes it vulnerable to invasive species of plants and animals, such as purple loosestrife, common buckthorn, reed grass, zebra mussels, and round gobies, which can have an adverse effect on the entire ecosystem.  These invasive species are virtually absent under current conditions. 

     There are plant and animal species in the area that are listed as endangered, threatened or special concern.  These include: the proposed Michigan endangered pugnose minnow, the threatened arrowhead, bald eagle, caspian tern, eastern fox snake, fire pink plant, small-mouth salamander, and osprey.  Species of Special Concern include: black-crowned night herons, great egrets, and swamp rose mallow. 

     Development of this tract of land on the Detroit River is contradictory to the recognized value of the area and would foreclose opportunities for public ownership, access, and use of the property, and habitat improvement.  The site has been recognized by the following:  i) Detroit River Remedial Action Plan (RAP) 1996 - Identifies Belle Isle, Grassy Island, and Humbug Marsh as key habitat and restoration sites; ii) State of the Lakes Ecosystems Conference 1998-  Identified Humbug Marsh as the most significant natural area yet remaining on the U.S. side of the Detroit River; iii) President of the United States, Bill Clinton 1998- Named the Detroit River an "American Heritage River". 

Applicant's Rebuttal:

    The site is not unique, since it is within 10 minutes of Lake Erie Metropark and the Pointe Mouilee State Game area.  These facilities protect and reserve for hunting, recreation, and wildlife refuge approximately 7,000 acres of forest scrub and coastal marsh.  In addition, several hundred acres have been reserved in the City of Gibraltar.  There are other wetlands along Grosse Ile and Celeron Island, as well.

    MID insists that no "globally rare" environments will be disturbed by their project.  Much of the wetland on the site is marginal in character, are not diverse and provide only low quality habitat for breeding and nesting purposes.  Uplands are already disturbed or are of low quality.  The attributes of the site that are most valuable for conservation and resource protection have been preserved within the proposed plan, providing the natural beauty that MID sees as an asset to the development.

    There has been neglect of the site over the years by previous owners which has allowed encroachment by poachers, trespassers, and midnight dumpers.  Homes on the site will be more likely to prevent abuse of the resources of the area and encourage their protection.

     MID's development is "totally consistent with the American Heritage Rivers Initiative...Projects consistent with the initiative seek to reconnect the city to the riverfront, make the riverfront attractive to new industry, provide recreational opportunities for all the people along rivers, save and celebrate downtowns, and strengthen  the local economy.  MID's development of the riverfront property is completely consistent and supports the state public goals of the American Heritage Rivers Initiative."

     There are concerns that there may not be a way to prevent encroachment on the easement area, especially since the easement includes portions of many lots.  The MDEQ permit requires that a fence be erected to ensure this, and existence of homes on the site will prevent degradation by poachers, trespassers, and midnight dumpers. 

Findings:

    In their ROD, MDEQ concluded "The existing conservation easement area is a locally scarce resource and the easement area and bottomland is considered a rare resource."  We concur

with that finding.

    The site has over one mile of frontage on the Detroit River and contains a state held conservation easement area.  It is the last remaining wetland complex of significant size on the mainland side of the Detroit River from Lake St. Clair to this site.

     Development of the uplands will alter the existing habitat and cause the loss of wildlife habitat on size. 

     Federal and State endangered species lists were consulted.  The following endangered or threatened species have been observed on this site:

Bald Eagle‑                  Fed. Threatened.

Osprey‑                      MI Threatened

black-crowned night heron    MI Special Concern

Forster's tern               MI Special Concern

Common tern                  MI Threatened

American Bittern‑            MI Special Concern

Least Bittern‑               MI Threatened

Information obtained during the public notices and public hearings suggest potential concern for the additional species:

Pugnose minnow               MI Endangered

arrowhead                    MI Threatened  

caspian tern                 MI Threatened

eastern fox snake            MI Threatened

fire pink plant              MI Threatened

small-mouth salamander       MI Endangered

swamp rose mallow            Special Concern

    According to the MDEQ ROD, the MDNR has not concurred that the proposed development is consistent with the provisions of their Endangered Species Section.  The DEQ can neither confirm nor deny that the proposed project will effect state-threatened plant or animal species.

    Further study of the area and its value for these and other species is necessary before true impacts can be judged.

    Concerns were raised regarding the potential for endangered mussel (northern riffle shell) populations and impacts as a result of the proposed work.  Based on communications with a mussel expert, it is unlikely any live specimens inhabit the project work site.

    USACE staff observed a bald eagle on the site and there are numerous other reportings of eagles flying over or fishing Humbug Marsh and surrounding waters, as well as roosting in trees within the riparian area.  Staff biologists have determined that the site is likely to provide feeding and roosting habitat and potential nesting habitat for this species.  There will be no effect on this species if the Island is not cleared/developed, a 300' natural buffer is maintained on the northernmost triangle, and a 150' buffer is maintained along mainland shoreline and up Handler drain to the pumphouse.  If the buffer is reduced in any of these areas, or large trees and snags are removed from the riparian area, the project "may effect" the species and formal consultation with the USFWS will be required. 

    Refer to the discussion of WES recommendations and buffer width alternatives in previous sections of the assessment.

    The inclusion of a fence and signage is a mechanism to attempt to reduce potential intrusion upon and impact to the conservation easement and/or buffer which would exist upon numerous individual properties.  However, it is a strong expectation of "waterfront" property owners to both access the waterway and to have a clear unobstructed view of the water.  Lack of the ability to easily traverse and clear the immediate shoreline would impact property values.  It is expected that individual property owners will seek to reinterpret and\or challenge such restrictions.  Some property owners may violate those terms of the easement and state permit.  The proposed easement conditions on individual property owners are considered unenforceable due to the inherent difficulties associated with monitoring numerous owners. 

    The applicant's interpretation that clearing of vegetation is not contrary to the easement's requirement that the site remain in a "natural, undeveloped condition" strongly suggests they will encourage and/or facilitate clearing and or thinning of vegetation within the easement or any buffer area.  The ability to easily traverse an easement/buffer and to alter vegetation to improve views would have a major impact on the marketability of the site. 

     Implementation of the proposed activity would impact upon the ecological balance and integrity of a valuable resource (i.e. wetlands, seasonal use area for large wading birds, feeding and resting area for migratory waterfowl, songbirds, raptors, and shorebirds, fish spawning or cover areas).  The proposed project would change an area that now supports a variety of species into one which will probably support considerably less diversity.

     In summary, as proposed, project impacts on the overall ecology are expected to be significant, and further study may be required to ascertain their extent.

C.  Identified Social Impacts

     1. Visual Aesthetics

Public support:  The project would provide a more attractive shoreline than the current one which is littered with trash and illegal duck blinds. 

Public Comments/Objections:  The project will result in the loss of a significant scenic area.

Applicant's Rebuttal:  MID appreciates the natural appearance and intends to market it as an amenity.  They will remove trash and debris and cease illegal dumping that have blighted the site.

Findings:

      This project would represent a drastic change in the appearance of the area from an undeveloped area of mixed natural cover types to one of intensive development of various types.  The effect of this transformation would depend on personal taste, but the gain in another mile of developed shoreline would be minimal incremental benefit to those who prefer such scenery.  There would be a significant loss to those who value at least some vestige of natural riverfront.  Much of the adverse public comment on this project relates to this potential loss, and though this perceived loss is subjective, it cannot be discounted.  The general level of this impact would be greatly expanded during the project's construction and eventual use.

    MID's removal of trash and debris, as well as ceasing some of the current land use practices on the site (e.g. dumping) would have a positive impact on aesthetics for those who have opportunity to encounter it on-site.  Absent MID's opening of the site and providing access, the receptors would not be the general public nor those who would view the site from the river.

     In summary, the project would have both positive and negative effects on aesthetics.  The loss of the natural area (negative) would be of a greater magnitude than the clean-up of the area (positive), in recognition of the rarity of similar natural areas.  Loss of a natural area would have regional implications whereas site cleanup would have more proximal benefits. 

     Many of the adverse impacts can be minimized if the permit is denied or modified to limit the extent of clearing on the project site, particularly along the immediate mainland shoreline and on the island.  Residential and golf course development could be totally screened from waterway users if a natural, undeveloped (including no clearing or thinning of vegetation) buffer is maintained.  This would partially address concerns that conversion of the area would eliminate one of the last and most important undeveloped natural shorelines remaining along the Detroit river mainland shoreline.

     2.  Noise

Public comments/objections: The removal of vegetation on the site will eliminate the sound buffer which shields the wetlands from the surrounding industry. 

Findings:

    Construction activities, will increase ambient noise for a period of several years.  After construction, operation and use of the project area would not create excessive noise levels, particularly in light of surrounding land use.

     3.  Designated Historic, Cultural, Scenic, and Recreational Values

Public support:   Fishing opportunities are available at many other areas in the lower Detroit River. 

Public comments objections:  The project area is of significance to native American tribes, and the island is a likely burial ground.  According to John Hartig, Secretariat to the Great lakes Water Quality Board of the International Joint Commission, "400 experts from the U.S. and Canada gathered for the State of the Lakes Ecosystem Conference (SOLEC).  At this event, U.S. EPA, Environment Canada, and numerous other Federal, state, and provincial agencies designated the Detroit River-Lake St. Clair system as one of only 20 "Biodiversity Investment Areas" in the Great Lakes Basin. SOLEC recommended that a high priority be placed on protecting natural areas such as Humbug Marsh.".

Findings:

     The National Register of Historical Places was consulted.  Registered Historical sites would not be affected by the proposed work.  An archaeological reconnaissance and survey of both the mainland and the island were undertaken.  The final report was reviewed by the State Historic Preservation Officer who concluded it is unlikely the proposed work area contains potentially eligible sites.  

    The proposed work would not affect an area designated under the Federal Wild and Scenic Rivers Act, or being considered for such designation.  The proposed work would not affect areas designated as Natural Landmarks, National Rivers, National Wilderness Areas, National Seashores, National Recreation Areas, National Lakeshores, National Parks, National Monuments, archaeological resources, including Indian religious or cultural sites.  We know of no applicable or affected state, regional, or local land use classification due to historic, cultural, scenic, or recreational values.

     4.  Land Use Patterns

Public Comments/Objections:  The project would be better suited to a previously developed but presently abandoned site, rather than undeveloped land on the Detroit River.

Applicant's Rebuttal:  The proposed development complies with local zoning.

Finding:

    Although the site has been rezoned so as to accommodate the development, there are some overriding national issues that extend beyond local zoning considerations.

    Aerial photography shows the project area is a remnant of natural (not pristine) habitat, at least somewhat rare for the region, surrounded by intensive industrial, commercial, recreational and residential development.

    There is an interest among local, regional, and state residents, organizations and governments in improving the area's image and refocusing the economic base from heavy industry.  This proposal would accomplish this by using relatively undeveloped "greenfield properties" rather than by recycling abundant, heavily impacted sites.  Therefore, the effect of this project will be to encourage non-industrial development in open (greenfield) areas, such as special aquatic areas, without the favorable changes in land use in the abandoned industrial sites.  

     The Federal RCRA and CERCLA laws are set up to encourage cleanup of polluted sites and allow for reuse.  Golf courses can be sited on remediated sites.  The example set by this proposed project would supply an additional disincentive to clean up those industrial sites, contrary to stated goals of Congress in RCRA and CERCLA. 

     Many areas of metropolitan Detroit have degraded and abandoned housing while new construction continues in surrounding greenfields.  This proposed development would continue this drive toward sprawl and inner city abandonment.

     There are significant natural resource features worthy of preservation on some areas of the site.  Other areas of the site could be developed without serious consequences to the wetlands and aquatic ecosystem.  The zoning of the site is residential, and the proposed development will degrade the aquatic ecosystem to the extent that it will change a de facto wildlife refuge into a residential development. 

     In summary, major adverse impacts on land use are expected as a result if this permit is issued.  Adverse impacts can be reduced if the permit is denied or modified such that a substantial natural vegetation screen (no clearing, cutting, thinning, etc.) remains along the entire mainland and island shoreline.

     5.  Economic Effects

Public support:  The proposed development will be economically beneficial to the area due to the increased tax base.  The project will attract a diverse population which will utilize business services and support cultural activities and charities in the region.  The proposed project will stimulate economic and cultural growth in surrounding communities, and will make the overall region attractive as a whole. 

Public comments/objections: The economic benefits to the community are questionable.  The tax base increase will be accompanied by an increased need for public services and utilities.  In order to accommodate the new population, the community may need to repair and/or restructure the school system, sewer system, roads, etc.  The economic situation should be assessed by an expert to determine if it would be a benefit to the community.  Several commenters questioned the dollar figures which MID suggested as benefits, based on their observation that the benefit value did not change as the project was downscaled or as phases were removed from consideration, and/or that the reported dollar benefits actually increased in proportion to level of opposition to the project.

Applicant's rebuttals:

     The residential project will address significant and long-standing needs of local and regional communities.  The local economy has suffered due to the loss of industries and a legacy of abandoned industrial sites that have driven new business ventures and entrepreneurs elsewhere.  Local governments support the MID plan because it will produce $308M in construction expenditures, generate over 4,000 jobs and construction wages in excess of $137M.  New residents of Gibraltar Bay will pay over $6M in property taxes, which in turn will provide much needed revenue to assist the cities and their respective school districts and services.  The residents of the development will spend over $54 mill annually in the local community and the surrounding region.

Findings:

    The proposed site development would provide economic development to the area.  The development would provide an increased tax base for the communities, as well as demands for local services such as infrastructure and schools.  Although a development of this nature and magnitude would likely contribute to the economy, if successful, we cannot verify the employment and economic claims made by Made in Detroit.  

    The applicant's economic benefit figures are subject to modification, potentially substantial, in the event the project is downscaled or altered as a result of eventual financing, cost/benefit, and/or marketing considerations.  Additionally, MID's projections assume the project will be successful, which has been called into doubt by numerous commentors.  If the project is less than successful or fails, the purported economic gains would be less than anticipated, and could become economic liabilities.  The sheer magnitude of the proposal, and the fact it is a completely new development, rather than an expansion of an existing development, increases the uncertainty of success.  The applicant does not have an established record for developments of this magnitude.

     Contractors, equipment suppliers, and other commercial enterprises would greatly benefit from the proposed work.  Property values would greatly increase as a result of the proposed work.  Increased use of the area will greatly benefit local businesses, and new businesses are likely to start and flourish.  The local tax base is likely to expand. The proposed work would provide the applicant with a major expansion and improvement in their interests, which may result in an economic gain for them and their partners.

    The development will provide local positive impact on commerce and industry during construction.  The local tax base will be enhanced by the construction.  The development will employ persons that shop in the immediate area.

     In summary, positive economic impacts are expected as a result of issuing the proposed permit.  It is uncertain what denial or modification of the permit will yield since there are many acres of upland on the site that could be developed, and there are other sites that could accommodate the various facets of the proposed development. 

The following alternatives, or applications of the WES recommendation, are being considered:

    1.  Full application of WES' 300' recommendation to all areas including the island, the mainland shoreline along the open water, handler drain and adjacent wetlands, and to all 6 pockets and fingers within the upland portion of the site.

    Benefits:  Maintains a significant natural quality to the site which could be considered an amenity.  Also, preserves sites marketability as a natural area.

    Detriments:  Places severe restrictions on the use of the property and the viability of large scale development of the site.  Precludes development of the island and the peninsula of upland on the north portion of the site.  Severely reduces the availability of potential homesites. 

    2.  Full application of WES's 300' recommendation to the island, to the peninsula of upland on the north portion of the site, to the remainder of the shoreline beginning at the northeast portion of the site (adjacent a major wetland area) and continuing southeast along the shoreline abutting Humbug Marsh, to the uplands adjacent to the major wetland area located on the extreme southeast portion of the mainland, and to the uplands extending approximately 1/2 way up each side of Handler Drain (incorporating the widest portion of the drain and the adjacent wetlands).

    Areas not included would be the wetland pockets and fingers, which are either separated from the marsh or only contiguous by a narrow connection, and the upper reaches of Handler Drain, where it narrows.    

    Benefits:  Substantial natural quality marketability and appeal.  Increases the potential for development.

    Detriments:  Limits development potential, though less than alternative 1. above.

    3. Full application of the WES 300' recommendation to the island and to the peninsula of upland on the north portion of the site.  Require a 150' buffer along the remainder of the shoreline beginning at the northeast portion of the site (adjacent a major wetland area) and continuing southeast along the shoreline abutting Humbug Marsh, to the uplands adjacent to the major wetland area located on the extreme southeast portion of the mainland, and to the uplands extending approximately 1/2 way up each side of Handler Drain (incorporating the widest portion of the drain and the adjacent wetlands).

    Benefits:   Substantial natural quality marketability and appeal.  Increases the potential for development.

    Detriments:  Severe limits of development potential on island and peninsula, less limitation on mainland

    Additional measures to be considered for this alternative:

       -  The buffer which was cleared must be rehabilitated to increase the buffering capacity

       - more liberal application of 404(b)(1) guidelines for wetland fills in wetland pockets and fingers to increase development potential.  Impact area may increase but loss of functions and values not as serious as in areas adjacent to major wetland resources.

    4.  Further reduction of buffer on Island or Peninsula and/or further reduction of 150' buffer:  Represents a significant degradation of aquatic resources, fails 404(b)(1) guidelines, not permissible.

     6.  Effects on Recreation

Public comments/objections:  The site provides hunting, fishing, and bird watching opportunities.  These generate revenue and provide recreational enjoyment.  Hunting opportunities will likely be foreclosed due to laws and safety zones that are required around residential areas.

Applicant's rebuttals:  Hunting on the site occurs under trespass.  The project will not effect fish populations nor angling opportunities in the area.

Findings:

    Navigation of recreational craft on the waters will not be impaired by the open pile bridge design.

    There is evidence of hunting activity in and adjacent to the open waters of the site (i.e. blinds).  If the site is developed it is probable that such recreational activity would be in conflict with residential use of the site and would no longer be safe.  Some of the hunting activity appears to be occurring under trespass.  There is evidence the open waters of the site, which are considered waters of the U.S. where public access is not under trespass, are also used for these purposes.

     The proposed work will significantly degrade an area which is important to maintenance of populations of fish and game, although part of the site is not open to public use for hunting and fishing. 

    The area had been used as a private hunting preserve in the past, and recreational hunting opportunities would be eliminated by the proposed development.

     The project will reduce opportunities that exist for passive recreation based on natural surroundings such as birdwatching and photography.  Canoeing and fishing in the shallows will not be changed as a result of the project.

     Recreational opportunities typically associated with waterfront property will be limited on this site by the conditions of the conservation easement.  The easement restricts individual property access and views should be severely restricted by the "natural and undeveloped condition" of the easement.  However, it is a strong expectation of "waterfront" property owners to both access the waterway and to have a clear unobstructed view of the water.  Lack of the ability to easily traverse and to clear the immediate shoreline of vegetation would impact property values.  It is expected that individual property owners will seek to reinterpret and\or challenge such restrictions.  Some property owners may violate those terms of the easement and state permit.  The easement conditions are not effectively enforceable due to the inherent difficulties associated with monitoring numerous owners.  Enforceability would increase substantially if easements or buffers were to remain under common single ownership, with one responsible party. 

     The project and spin‑off activity may cause a large increase in the number of people in the area, who may in turn degrade the existing public recreational facilities in the area.

    Angling is a major recreational activity in this waterway, particularly in the locality of the subject property.  Any activity which adversely impacts the food chain, and or reduces spawning or nursery habitat for game or forage fish will adversely impact this activity.  See previous sections for a discussion of these impacts.

     In summary, major adverse and limited positive impacts are expected on recreational opportunities for the public as a result of the proposed project.

    Adverse impacts can be minimized if the permit is denied, modified, or issued with special conditions as detailed in previous sections discussing wetlands, aquatic biota, terrestrial biota, and conservation. 

     7.  Effects on Safety

     Increased traffic on the area's roads and waterways will occur as a result of this project.  It is unlikely that this will cause any substantive negative impacts.  There may be safety and health implications of the sediment and excavated material handling and disposal practices, depending on the level and nature of contaminants.  Once again, further study is required,

and a management strategy must be devised and analyzed.

     This will cause a minor adverse impact on safety as a result of the project, but more serious impacts may be apparent when details of contaminants and materials management are available.

     8.  Food and Fiber Production

     No impacts would be expected.

     9.  Mineral Needs

     No impacts would be expected.

     10.  Energy Conservation and Development.

     No impacts would be expected.

     11.  Consideration of Property Ownership.

Applicant's comments:  MID has purchased the property, has made a commitment to develop it in an environmentally responsible manner, and cannot be restricted from doing so by any existing law so as to infringe upon constitutionally protected property rights.

Findings:

     The applicant has a right to reasonable private use of the property, subject to the rights and interests of the public in the waters of the United States, including federal navigation servitude and federal regulation for environmental protection.

    There are less damaging alternatives that will still afford reasonable private use of the property.  These are discussed in previous sections of this document. 

D.  Cumulative Effects

     For the purpose of this application review, the geographic area for which cumulative effects are being reviewed is the Detroit River.

     Within this area, historical permitting and pre‑permitting activity includes several marinas, factories with outfalls and moorage structures, canal developments, bulkheading or other armoring of virtually the entire shoreline, dredging, and fill of all other wetland areas.  Cumulatively, these activities have eliminated most wetlands, natural shoreline, and most natural

vegetation areas on the U.S. side of the River and around most of Grosse Ile.  There are other remaining undeveloped islands, such as Round Island, Calf Island, Celeron Island, and others.  Whether or not these islands and other remaining undeveloped areas are in public ownership or private, their ownership status can change.  This permit would set precedent since similar permit requests may be anticipated if this permit were to be issued and facilitate development.  If development of Humbug Island means potential value of $75M (as estimated by the applicant), there will be a powerful incentive for similar projects not only within the local area, but upon undeveloped islands elsewhere. 

    In summary, there is a potential for major long term adverse impacts.  Denial of the permit would avoid the impacts.  Modification to delete the island and preserve the most ecologically sensitive facets of the site would minimize adverse impacts and serve as a less-damaging precedent.

E.  Secondary Effects

Public Comments/Objections:  The increased population will bring additional boat traffic, as well as construction of sea walls, jetties, and bulkheads.  Human encroachment will eventually destroy the easement.  The actual impacts of the project go far beyond the reported wetland impacts - the secondary impacts to fish and wildlife, wetlands, water quality, and general environmental concerns are more significant.

Rebuttal:  MID has stated that they are not proposing any additional such activities and would have no control over such activities.  MDEQ permit requires deed restrictions and the easement, which should control impacts.  Since the Corps does not regulate uplands, impacts to uplands are beyond their purview and control.

Finding:

    If the permit is issued, we may expect additional permit requests for work on the site, barring the imposition of an iron‑clad conservation easement or other restriction.  Examples of the requests would be shoreline protection of eroding slopes, such as on the island, breakwater requests if conditions turn out to warrant them, etc.  Our experience is that we've never worked with a large project, particularly one this large, where additional applications and modifications were not requested. 

    It is a strong expectation of "waterfront" property owners to both access the waterway and to have a clear unobstructed view of the water.  Lack of the ability to easily traverse and clear the immediate shoreline would impact property use and values.  It would be expected that individual property owners will seek to reinterpret and\or challenge such restrictions.  Some property owners may violate those terms of the easement and state permit.  We would anticipate great difficulty in enforcing those conditions/constraints on individual property owners.

    The applicant's interpretation that clearing of vegetation is not contrary to the easement's requirement that the site remain in a "natural, undeveloped condition" strongly suggests they will encourage and/or facilitate clearing and or thinning of vegetation within the easement or any buffer area.  The ability to easily traverse an easement/buffer and to alter vegetation to improve views would have a major impact on the marketability of the site.

    If individual lot ownership extends to the waterway (i.e. shoreline buffers or easements are not held in common by an independent entity), individual property owners will expect and insist upon the exercise of typical riparian rights (individual boat access, clear unobstructed views) normally associated with waterfront lots which are not encumbered by easements/buffer restrictions.  An overwhelming impetus for unauthorized activities may occur.

    We also note that as currently proposed, the buildable portion of many lots is limited and it is expected that structures (homes) may be constructed so as to abut areas which are protected by the easement or buffers.  It is likely that upscale property owners would be unwilling to accept an unmowed, naturally vegetated (in this case thick, tangled vegetation) area abutting their residence and separating or isolating it from the waterway. 

    It is essential to the viability and enforceability of any easement or riparian buffer area that it be held in common, rather than held by individual property owners (as proposed by the applicant). 

     Federal regulations require that USACE examine secondary impacts that would not occur "but for" regulated activities.  In this case, although many of the most serious project impacts involve uplands which are on the island or which are adjacent to the marsh, it is within our authority and responsibility to include impacts to those areas in the permit decision.  Corps authority to consider these impacts is well documented and supported in the legislative and judicial history of the USACE regulatory program. 

    We have identified significant degradation to the aquatic ecosystem as well as other major adverse impacts in other sections of this evaluation.

G.  General Criteria:

     1.  The relative extent of the public and private need for the proposed structure or work:  There are conflicting public needs in this case.  There is a public need for economic development, for conservation of wetlands, for protection of the biological, chemical, and physical integrity of the Detroit River, and for the conservation of important rare and/or unusual examples of our natural heritage.  On the other hand, the market for upscale housing with a golf amenity can be construed as a private need, as can the need for the investors to recoup costs and a fair profit.

     2.  Where there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the object of the proposed structure or work:  There are unresolved conflicts, and practicability considerations are described in detail in Section V. below.

     3.  The extent and permanence of the beneficial and/or detrimental effects which the proposed structure or work is likely to have on the public and private uses to which the area is suited:  A discussion on suitability of uses is not relevant to this situation. 

H.  Alternatives:  The following administrative alternatives have been considered:  

     1.  Issue the permit as proposed.

     2.  Issue the permit with modifications.  As mentioned in paragraphs above, a permit issued which deletes northerly approach fills, and reconfigure development elsewhere would reduce the detriments to fish and wildlife resources, water quality, wetlands, conservation, land use, navigation, aesthetics, and recreation, while still fulfilling the some of the project's purposes and beneficial effects on the economy, recreation, and rights of property ownership.

     3.  Issue the permit