Nor does it seem fair and efficient to pass a wetland law that people cannot know they are breaking without a prior assessment from the DEQ. The Legislature appeared to address this concern in the statute by directing the department to "issue a final [wetland] inventory which shall be sent [to] and kept by the agricultural extension office, register of deeds, and county clerk." This inventory was to cover "all wetland in this state on a county by county basis." In theory, such an inventory would have allowed Hart Enterprises to anticipate the current dispute before it arose.
The DEQ did certify that it had completed a statewide wetland inventory in January 2007. According to a DEQ Web site, the inventory is a set of county maps that combine data from the U.S. Fish and Wildlife Service’s National Wetland Inventory, the Michigan Department of Natural Resources’ Michigan Resource Inventory System, and soil maps from the U.S. Department of Agriculture’s Natural Resource Conservation Service.[*]
Although these sources are reputable, they involve aerial photography and soil surveys, not on-the-ground wetland assessment. As a result, the DEQ’s maps cannot tell a landowner or prospective buyer whether he or she actually has a wetland. As the DEQ states: "The maps may not identify all potential wetlands in a county. It [sic] may show wetlands that are not actually present and it may not show wetlands which are actually present." A clear determination of "specific locations and jurisdictional boundaries of wetlands for regulatory purposes" requires "on-site evaluation performed by the DEQ. ..."[†]
The statute contains numerous indications that the Legislature intended these maps to provide a definitive wetland assessment. If so, the Legislature failed to mandate that outcome explicitly. Given this, perhaps it isn’t surprising that the "inventory" that was produced is of very limited value.[**]
[*] Soil maps are aerial photographs supplemented by soil samples on the ground.
[†] In the case of Hart Enterprises, the Mackinac Center’s attempt to locate the property on the DEQ’s inventory of Kent County tentatively places it outside of any apparent state or national wetland area. The property does lie inside a zone marked “soil areas that include wetland soils,” but particularly given that the natural topsoil for Hart’s property had been replaced with clay, this designation does not serve as a meaningful warning that the property would be identified as a wetland by the DEQ.
[**] There are several provisions in the wetland statute that suggest the Legislature intended the maps to provide an accurate, legally enforceable guide for residents. For instance, the statute requires a public comment period before the “preliminary” inventory is published as final. The final maps are then to be made available to the public through county clerks, registers of deeds and state legislators, with property owners being informed of a possible change in the wetland status of their property through their property assessment notices. In addition, the statute allows a property owner to ask the DEQ for a timely, definitive on-site wetland assessment of his or her property — but only before the final inventory is completed, not after. A pre-inventory assessment that finds no wetland on the property is to be binding on the DEQ for three years. Such provisions are difficult to understand if the final inventory wasn’t meant to be fixed and reliable. (See MCL 324.30321(1)-(4) and MCL 324.30322.)