The DEQ makes a variety of points in response. First, the department cites Michigan’s wetland statute, which states, "‘Wetland’ means land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support, wetland vegetation or aquatic life. ..." Year-round water is not necessary under the law; rather the only prerequisite concerning the amount of water is a presence sufficient to host wetland life.
The department is now reluctant to discuss any wetland vegetation found on the site, noting that this case may go to trial.[*] Indeed, the department’s physical specimens were obtained through a search warrant in October 2007, when two plant samples were taken and "a hydraulic connection with the lower clays was evaluated," says Jim Sygo, deputy director of the DEQ. "Sedges, reeds and cattails were found, among others."
Whether these plants indicate the presence of a wetland depends on the species of sedge, reed or cattail. For instance, the "MDEQ Wetland Identification Manual" lists more than 150 types of sedge, some of which are found almost exclusively in uplands (slender wood sedge), and some of which are found almost exclusively in wetlands (soft-leaf sedge). Many others often occur in both environments.
The DEQ is likewise now reluctant to discuss the area’s soil. In the eyes of the law, however, the soil type might not matter, since the definition of wetland in the state statute never explicitly mentions soil.[†] The DEQ’s wetland regulations, which typically have the force of law,[**] state that wetland determinations should rely primarily on the presence of water and wetland vegetation. Soil type is considered only to infer the presence of water when no water is visible. Given this regulation and the puddles on Hart’s property, the area’s clay soils might be ruled irrelevant in court if the DEQ produces sufficient evidence of wetland vegetation there.
The DEQ’s correspondence did not provide Taylor with scientific evidence of a wetland on his property. In fact, nothing in the statute requires the department to provide such evidence.
DEQ officials also argue that Michigan’s wetland statute covers wet areas incidental to development, not just longstanding, natural wetland. Hence, says Elizabeth M. Browne, chief of the DEQ Land and Water Management Division: "If it takes on the qualities of what you’re calling a natural resource, to the plants and animals it has become a natural resource." In fact, this view of the statute has prevailed in court in a case similar to Hart’s.
Given that property can evolve into wetland, DEQ officials say that property owners who want to build, pave, fill, create a berm or otherwise alter their land should apply for a wetland permit in advance, so the DEQ can assess the area before they begin construction. Property owners should also recognize that prior wetland assessments of their property may no longer be accurate. State law does direct the DEQ to refund the permit application fee if no wetland is found in the area.
Indeed, even if the 1990 DNR finding of a wetland south of Taylor’s property had also declared Hart’s property wetland-free, that assessment would not appear to bind the DEQ now, given past and present wetland statutes.[‡] And the DEQ disputes Taylor’s reference to the DNR assessment, saying this finding involved only the area to the south of Hart’s current property — not Hart’s property itself.
As a final argument, DEQ officials observe that laymen — and sometimes even people with professional credentials — may have trouble recognizing a regulated wetland. As Sygo says, "[Lot 7]’s a low-quality wetland, but nonetheless it complies with what we believe to be a wetland." He adds, "It’s difficult for any lay person to look at an area and try to decide whether it’s a wetland or not [because] there are just so many determining factors." Browne also points to complexity, saying: "Each site is evaluated on its own characteristics. There are soil types [and] lists of plant species, and inspectors are not built out of the same mold. ... We try to work with ... local units of government, local approvers of things, to at least get them educated enough to raise the questions [about possible wetland] to the homeowner. ..."
"There’s absolutely nothing black and white about it," says Peg Bostwick, supervisor of the Wetlands, Lakes, and Streams Unit of the DEQ’s Land and Water Management Division. "There’ve been repeated attempts to try to boil it down into something — a model where you can just feed in a bunch of statistics and come up with the answer. ... But it’s impossible. We try to come up with the guidance [and] methods to be as consistent as possible in our decision-making, but a lot of it is a judgment call, and it comes down to staff expertise and training. ...There’s a great deal of judgment about it."
[*] Government attorneys typically recommend that departments cease discussing the details of a case in public if the case is likely to be litigated.
[**] Regulations promulgated by executive agencies like the DEQ can be overruled by the courts or nullified by a legislative rewriting of the statute on which the regulations are based.
[‡] The wetland statute in force in 1990, Public Act 203 of 1979, did not provide any lasting force to DNR declarations of an absence of wetlands. The current statute, which was enacted in 1994, provides that the DEQ must honor any formal DEQ declaration of an absence of wetland for three years. (See MCL 324.30321(4)(c).) This three-year rule, however, applies only to DEQ assessments made before the department completes an inventory of the wetlands in a particular county. The DEQ now claims to have completed such an inventory for all Michigan counties. (As discussed in “An ineffective wetland inventory," this claim is questionable.)