Begin with Taylor’s first point: The land in question doesn’t seem much like a wetland. A wetland is commonly thought of as a natural area featuring spongy soils and unusual vegetation and wildlife — a bog, a marsh or a swamp, with reeds, muskrats or frogs. Although Hart’s land is wet at times (see Graphic 1), it is hard-packed and dry for much of the year.
Moreover, the area hardly seems like a "natural resource." The parcel and the surrounding area were farmland until platted for development by an engineering firm in the 1980s. The property was purchased by Appletree Development Co., and Hart’s future parcel was later bought by William J. Antor & Sons Excavators, a developer that stripped the area of topsoil and replaced it with clay to provide a firm base for construction. The property was zoned industrial by the village.
Thus, the land was set aside for — and subjected to — intensive development that included a new bed of relatively nonporous soil. Taylor and Striebel say that when they bought the site for Hart’s headquarters, the area in question, known as "Lot 7," had no standing water. (The DEQ does not confirm this point, but does not dispute it, either.)[*] The intermittent wetness on the lot in recent years is the result of nearby construction, which built up the surrounding soil. State highway M-37, running along an embankment to the west of Lot 7, helps block the westward flow of water, as does an embedded gas pipeline running from the north to the south-southwest. A Village of Sparta water tower, also on elevated ground, discourages the flow of surface water to the north. When Hart’s building and original parking lot were built to the east, Lot 7 was further boxed-in, making it harder for the area to drain, despite a man-made retention pond to the south and a ditch near the Applejack Court cul-de-sac to the north (see Graphic 2).
A Wet Portion of the Disputed Area
The photo shows land to the west of the Hart Enterprises parking lot in September 2006, following expansion of the parking lot earlier that summer. The area, known as Lot 7, was stripped of its topsoil in the early 1990s and bedded with clay. Construction activities throughout the area have left Lot 7 lower than the land immediately to the east, north and west. Photograph by the Mackinac Center for Public Policy.
Diagram of the Area
This diagram provides an approximate overview of Hart Enterprises’ property before the 2006 parking lot expansion. The parking lot was extended into the 0.25-acre area marked “wetland fill.” The DEQ also ruled that an additional 0.67 acres of Hart’s property to the west of the parking lot is wetland subject to regulation. The DEQ estimates a distance of 382 feet from the eastern edge of the alleged wetland to the Rogers Drain. Source: Mackinac Center composite of a DEQ map, a DEQ photo diagram and a map by WB Engineering Inc.
The DEQ’s letters to Taylor did not clarify why the department considered the area a wetland. The DEQ did refer him to a copy of the state’s lengthy wetland statute and quote general language from it to explain its jurisdiction, but it did not cite specific scientific evidence concerning soil, vegetation or wildlife.
Yet a professional can question whether Lot 7 is a wetland. Timothy Bureau, a natural resource consultant hired by Hart Enterprises after the dispute began, is a former regional representative and water quality specialist for the Michigan Department of Natural Resources, the state agency that originally enforced Michigan’s wetland law. He was also one of the first field staff hired by the DNR in 1978 to help administer the wetland statute. Bureau says: "A preliminary examination of the area raised serious questions about the soil’s wetland characteristics as well as the hydrology and wetland vegetation." Bureau also notes that snow from Hart’s parking lot is plowed to the lot’s western margin, increasing the volume of water that must drain from Lot 7 in the spring. The area’s standing water may owe more to a steel blade and a diesel engine than to wetland hydrology.[†]
Hart Enterprises also points to documents from construction firms that worked on the parking lot at various times. A 2006 report by Williams & Beck Inc., civil engineers whose business includes hydrogeological studies and water resource management, includes no concerns about a wetland in the area;[**] the same is true of a 1997 report by Hopper/Sheeran/Frank Inc., a group of geotechnical, environmental and construction materials engineers who monitored Hart’s original parking lot construction.
Nor did the Village of Sparta note problems. In addition to zoning the area for industrial development, the village has approved Hart’s various construction projects.
Taylor also observes that the DEQ (and earlier, the DNR) did not object to any of the construction in the area or the stripping of the topsoil. In particular, he stresses that the DNR did not flag any wetland on Lot 7 in 1990, when DNR staff determined that a wetland existed to the south of his current property.
This DNR finding appears less relevant (see "The DEQ’s viewpoint" below). Still, it seems clear that state government provided Taylor with no advance warning of the presence of a wetland on Lot 7 — an issue that will be explored in detail later.[‡]
And many other points remain true. Taylor bought property slated for industrial development; this property has been subjected to extensive human engineering; this engineering and construction, overseen by professionals familiar with water and soil issues, was not protested by local or state officials; and neither the DNR nor the DEQ warned that a wetland existed on the property before. Then, nearly 10 years after Taylor bought the property as a headquarters for a growing enterprise, he was told he could not use part of it because the DEQ had now declared that part to be a wetland subject to regulation.
[*] As one DEQ official put it, “We didn’t do an assessment of that property [before], so it’s our position that the impacts now are what we have to deal with.” (Elizabeth M. Browne, chief of the DEQ Land and Water Management Division, telephone interview with Diane Carey, February 20, 2008.) Other DEQ officials expressed a similar view.
[†] Bureau adds a legal point as well: He argues that the original topsoil was so sandy that the excavation by Antor & Sons qualified as sand mining, rendering any incidentally created wetland exempt from regulation under the state wetland statute. (See MCL 324.30305(4)(a); Timothy Bureau, telephone interview with Diane Carey, March 1, 2008.) This argument is not explored in the main text of this study.
[**] In the report, Williams & Beck did note “a very high seasonal water table,” but also remarked on “cohesive soils” (clay) and did not flag the area as a potential wetland.