The possibility of driving away businesses is only one of the costs of the shortcomings of Michigan’s wetland law. Another is that homeowners and business owners alike face a law that makes planning difficult and imposes new costs and uncertainties on expanding a home or business.
Such uncertainty devalues property rights, since a "right" which an individual must always ask permission to exercise is more like a privilege, especially when it is granted by an agency of unelected officials who cannot describe a concrete method by which they grant their approval. It is no slur on the motives or professionalism of DEQ staff to say that the Legislature should never hand a department this sort of power.
Our wetland regime also affects Michigan’s economy. Many states have relatively flexible wetland regulation, and very few have our abundance of freshwater lakes, rivers, streams and ponds. As a result, a landowner is much likelier to run afoul of a wetland statute here than elsewhere. This risk lowers the value of property and businesses in Michigan and makes the state less attractive to investors. In the case of Hart Enterprises, the threat may drive out scores of the "high-skilled, high-wage jobs in emerging, technology-based industries" that Gov. Jennifer Granholm and others praise.
At the same time, the DEQ’s broad interpretation of the statute is environmentally counterproductive. Small patches of land with a few wetland characteristics do not produce a true wetland’s environmental benefits, such as biological and chemical oxidation. In fact, a DEQ study of man-made wetlands designed specifically for environmental purposes found that many were ineffective over time. Wet areas incidental to human activity are even less likely to provide ecological value, and protecting them drains DEQ resources from meaningful goals, such as the preservation of true wetlands.
State legislators should recognize that they have produced a statute that is sidetracked from its intended purpose, weakening the state’s economy and producing uncertainties that are unfair to property owners, most of whom can’t afford to fight for their rights in court. To address these concerns, the Legislature should consider the following reforms.