A Heroic Victory

The McCarter Wetland Dispute

HOWARD MCCARTER IS the third generation of his family to live on a four-acre parcel located in Washtenaw County's Webster Township. He and his wife Amy faced losing that homestead in a battle that is becoming all too familiar in Michigan — a legal dispute with the Department of Environmental Quality over wetland regulation.

The McCarters' story, recounted in the Sept. 30, 2008, Michigan Farm News (and the basis for much of the story here), begins in 1979, when an excavation company was hired to dig out a drainage area. The material removed was dispersed in a way that caused runoff from the neighboring farm to be diverted onto the McCarters' property.

Howard McCarter's father subsequently joined with three other neighbors to have a ditch dredged out on the McCarters' property. The ditch resolved most of the drainage issues, and is wet only after a heavy rain.

The ditch divides the McCarters' property and impedes the use of their tractor, so they decided to create a culvert in 2005. Because they live on agricultural land, they saw no problem with the culvert's placement. They used the leftover dirt from digging out the ditch to fill around the three-foot diameter culvert.

In the spring of 2006, Washtenaw County notified the McCarters that they needed a soil erosion permit for the culvert. The McCarters obtained the permit only to discover that they needed an additional permit from the Michigan Department of Environmental Quality. They applied for the DEQ permit and were denied. The DEQ inspected the site, and found that the McCarters had placed fill on 0.06 acres of a regulated wetland and had built a culvert in a "regulated stream."

In February 2007, the McCarters received a letter stating that they had to remove the culvert by the following June. At the time, the McCarters had an environmental lawyer who urged them to comply with the DEQ, saying it would be difficult to beat the DEQ in court. After working with the lawyer, Howard McCarter observed, "I'm convinced that, for the most part, environmental lawyers are not on our side."

The McCarters did not comply with the DEQ's request. Shortly after, in January 2008, the Jackson district office of the DEQ filed criminal charges through the local prosecutor. The McCarters faced up to $11.5 million in fines, assessed at $12,500 per day since the culvert went in, and an additional $2,500 fine each for violating regulated wetlands. This left the McCarters in a dilemma. If they fought this case in court with a lawyer, it would cost them around $50,000 whether they won or lost. Essentially, the McCarters would have to sell their property to pay the lawyer fees. This left them with only one way to keep their property: represent themselves in a case against the DEQ.

They chose to do so and Reuel Long, Amy McCarter's father, helped them with the case. The McCarters began spending most of their free time studying law and preparing for court.

The court date was set for May 8, 2008. The McCarters were charged on two counts:  depositing or permitting the placing of fill material in a wetland without a permit, and constructing or enlarging a structure on the bottomland of a stream without a permit.

In response to the first charge, the McCarters argued that there was no regulated wetland because there was no stream nearby — a precondition of DEQ jurisdiction under state statute. If there was no stream in the area, they observed, then the wetland was too small to regulate.

They also claimed that even if the wetland were regulated, the DEQ's environmental quality analyst did not adequately demonstrate there was fill in the wetland. The analyst used photos taken on a single day (as well as some subsequent sketches) as evidence that fill had been placed on the wetland in the past. The McCarters argued that it is impossible to use a photo taken on a single day, with no past photos to compare to, as evidence of fill.

The McCarters contested the second count by stating that agricultural drains like theirs are exempt from permit requirements. They also argued once again that there was no stream nearby, as the statute required, but rather a private agricultural drainage ditch that is dry for most of the year. The McCarters believed that under the DEQ's overbroad definition of a stream, any agricultural ditch could be considered a stream.

The DEQ argued on the first count that there is a stream, not an agricultural ditch, on the McCarters' property. The DEQ acknowledged that its analyst failed to conduct a proper dye test to determine if there was a regulated stream. The analyst also stated that he had not walked the entire length of the ditch and only inspected the property three times. The bulk of the DEQ's argument was that its analyst was the only expert to testify, and thus that his opinion trumped all others.

On the first count, the court found the McCarters' evidence more persuasive and concluded that the alleged stream is nothing more than an agricultural ditch, which was dug many years prior. Because there was no stream, the second charge was dropped as well. Against the odds, the McCarters won their case.

The DEQ could bring a civil suit against the McCarters. But the Michigan Farm News quoted a DEQ official who said the department is unlikely to do so, since the DEQ considers this case a low priority among the plethora of cases pending at the attorney general's office. The official nevertheless defended the DEQ's decision to prosecute such a minor case, telling the Farm News: "[O]ur action sends a message to small farmers that the DEQ still cares, even about the small stuff. And the message has been sent out that even though we lost, it doesn't mean we won't take someone else to court, and next time, we may win."

In an email to the Refuge, Robert McCann of the DEQ stated: "Wetland regulations are often the most difficult regulations the DEQ administers because they often have the most direct impact on Michigan's property owners. The DEQ, however, makes every effort to administer the laws passed by the Legislature in as uniform and fair way as possible."

But for property owners, the McCarters' heroic defiance is a reminder that the DEQ's interpretation of the wetland statute, while usually deferred to by the courts, contains serious flaws. With popular resolve and common sense, reason may yet prevail in Michigan wetland law.