If the DEQ’s definition of "contiguous" to a "stream" seems expansive, so does its interpretation of the definition of a wetland. Consider again the description the DEQ gave Taylor about why Hart’s property was subject to regulation:

As defined in Section 30301(p)(i) a wetland is "… 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, .... "and is contiguous to the Great Lakes, an inland lake or pond, or a river or stream. ["][27]

The second ellipsis, like the first ellipsis, appears in the original, and it is important. The second ellipsis shows where the department omitted a part of the wetland definition between "aquatic life" and "and is contiguous. ..." The missing language is an additional condition: "and is commonly referred to as a bog, swamp, or marsh. …" (The complete statutory definition of a wetland appears in Graphic 3.)[28]

This additional part of the definition of wetland is significant. An area might easily be wet enough to support "wetland vegetation" (which can often be found in nonwetlands) without being "commonly referred to as a bog, swamp, or marsh." In particular, this language wouldn’t describe Hart’s Lot 7, which doesn’t have the spongy, saturated soils or the abundant wetland flora and fauna that are part of the common understanding of bogs, marshes and swamps. Given this additional condition in the wetland definition, it’s unlikely that a wetland exists on Hart’s property.[*]

Graphic 3
“Wetland” as Defined by the Michigan Legislature
[†]

(p) "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, and is commonly referred to as a bog, swamp, or marsh and which is any of the following:

(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a river or stream.

(ii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and more than 5 acres in size; except this subparagraph shall not be of effect, except for the purpose of inventorying, in counties of less than 100,000 population until the department certifies to the commission it has substantially completed its inventory of wetlands in that county.

(iii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and 5 acres or less in size if the department determines that protection of the area is essential to the preservation of the natural resources of the state from pollution, impairment, or destruction and the department has so notified the owner; except this subparagraph may be utilized regardless of wetland size in a county in which subparagraph (ii) is of no effect; except for the purpose of inventorying, at the time.

Source: This definition appears in MCL § 324.30301(p)(i)-(iii). The Department of Environmental Quality cites part (i) of the definition in claiming regulatory authority over the 0.92-acre portion of Hart Enterprises’ Lot 7. (Because the DEQ states that it has completed a wetland inventory for all Michigan counties, the department claims full power under parts (ii) and (iii). See "An ineffective wetland inventory" below.)


[*] Some may argue that this second condition was meant simply as examples of wetlands, rather than represent an additional condition. But if the Legislature meant a bog, swamp or marsh to serve as an example, the Legislature could have prefaced the phrase with “for example” or with “or,” rather than with “and.” In fact, the DEQ reads “and” as meaning “and” just a few words later in the statute: In the letter quoted above, the department takes the “and” before “is contiguous” to mean that both the first and last conditions must be satisfied in order to establish the presence of a regulated wetland. But if that “and” means that the first and the third conditions must be satisfied, the previous “and” would inevitably mean the second condition must be satisfied too.

The legal conclusions drawn in this case study about the words “contiguous” and “wetland” may not match those of the DEQ, but they are similar to conclusions reached by Iosco County Circuit Court Judge J. Richard Ernst in the 1992 case People v. Macintosh (see footnote for The Impact of Definitions.) Judge Ernst used straightforward readings of “wetland” and “contiguous” to dismiss the charges against a defendant accused of building a road through an area designated as a wetland by the DNR.

[†] Michigan statutes are available online at
www.legislature.mi.gov/(S(mw5jsr55xtkfw5b20eknuq2e))/ mileg.aspx?page=MCLBasicSearch