The call that sparked the conflict came on May 24, 2006, from a local representative of the Michigan Department of Environmental Quality. He informed the company that the DEQ had received a complaint that Hart’s parking lot expansion was filling a wetland. Since Michigan law typically requires a permit to alter wetlands, which are protected for environmental, agricultural and mining purposes, the representative asked to examine the area.[*][1]

He and Striebel met later that day and walked out to the parking lot. According to Striebel, the DEQ representative told him that the area being prepared for the parking lot expansion was indeed a wetland, but that the wetland would be regulated only if it emptied into, or was within 500 feet of, nearby drains or streams.[2]

The DEQ’s view that the area was a wetland surprised Taylor and Striebel. There had been no prior warning from the department, and the construction experts working on the property had not noted a wetland there. The DEQ’s subsequent conclusion that the area was indeed subject to regulation meant that from the agency’s perspective, Hart Enterprises would need to request a DEQ permit to use the land. Such a request might be denied, or it might be granted only with significant conditions attached.[†][3]

On July 12, 2006, the DEQ’s local representative sent Taylor a letter describing the base materials in the proposed paving area as "unauthorized activity" on "regulated wetlands." The letter stated that a permit was required for adding such fill material, advised Taylor to stop work and directed him to submit detailed information about the project to the DEQ.[4]

Given that the ground in question was already excavated and filled with base material for the parking lot expansion, Hart Enterprises finished the paving shortly after receiving the DEQ’s letter. Hart officials continue to feel that the DEQ has failed to provide a scientific basis for its wetland finding, and that by requesting a wetland permit, the company would implicitly concede the spot was a regulated wetland.[5]

More fundamentally, Hart officials have questioned the DEQ’s basic premise that the area is a wetland, observing that the ground is only occasionally wet, usually in the spring, and that it was long ago so altered by human engineering that its occasional wetness has little to do with nature. As Taylor puts it: "This is not a natural resource. This is a man-made mud puddle sitting in the middle of this industrial park that’s here to advance industry in the state of Michigan."[6]

Taylor is right to object. Nevertheless, understanding both his and the DEQ’s arguments is essential to grasping the shortcomings of Michigan’s wetland statute.[**]

[*] A permit to alter a wetland may not be required for some activities, such as construction of farm roads or improvement of public streets (see, for example, MCL 324.30305(2)). In addition, areas that satisfy the biological criteria for a “wetland” in the state’s wetland statute might not be regulated if they do not satisfy the statute’s other conditions, such as proximity to bodies of water (see MCL 324.30301(p)(i)-(iii)).

State law lists a number of benefits of wetlands: “flood and storm control,” “wildlife habitat,” “pollution treatment,” “erosion control,” sites for “the production of food and fiber” and “the extraction and processing of nonfuel minerals.” (See MCL 324.30302(b)-(d).)

[†] Whether Hart Enterprises should have had advance notice from the state of Michigan of the presence of a wetland on the property is discussed in “An ineffective wetland inventory."

[**] A statute is a law passed by the Michigan Legislature and signed by the governor. State regulations, in contrast, are drawn up by state executive departments, such as the DEQ. These regulations have the force of law only if a legislative statute grants a department the ability to develop them and if the department follows the administrative procedures established in state law. For more detail on the process state departments must follow in establishing binding rules and regulations, see the Michigan Administrative Procedures Act, MCL 24.201 et seq.