The Impact of Definitions

Michigan’s wetland statute defines a "wetland" only briefly and in general terms. Unsurprisingly, this definition generates a great deal of dispute. The DEQ itself acknowledges the complexity of wetland determinations.

Indeed, the DEQ holds that homeowners and business owners should not assume they can build on their property just because it doesn’t seem like a wetland. Wetland, in this view, is inherently difficult to identify; it may emerge over a few years as a by-product of human activity on adjacent properties; and only DEQ experts can safely decide whether property is a regulated wetland. Property owners hoping to build should apply for a DEQ wetland permit first to avoid inadvertently breaking the law.[*]

This view reduces a property right to something more like a license. But given the valuable role property rights have played in our society, it’s worth exploring whether the DEQ is correct to imply that its approach to wetland regulation is compelled by Michigan law.

[*] This appears to be a longstanding view of the agencies enforcing the wetland statute. In a 1992 ruling in Iosco County Court, Circuit Court Judge J. Richard Ernst quotes an exchange between the trial court judge and a prosecutor regarding how a person might know when he or she was about to violate the wetland statute:

THE COURT: * * * (H)ow does a person know [that] when to follow the law is really what the question comes to?

[PROSECUTOR]: They contact the DNR to determine whether a permit is necessary, your Honor.

THE COURT: The statute says you have to apply for a permit to fill a wetland.

[PROSECUTOR]: That’s correct, your Honor.

THE COURT: And then you find out if you needed to apply by finding out whether they tell you its [sic] a wetland or not? What I’m looking for is how does a person know if they are within the law other than do they just call the DNR and ask for their opinion, is that what your [sic] saying?

[PROSECUTOR]: Contact the Department of Natural Resources. Someone would go out, examine the land, make a decision whether a permit was necessary or not, your Honor.

Judge Ernst continued: "If the law is as argued by the prosecutor, a preliminary determination by a DNR employee whether or not a particular parcel is a Goemaere-Anderson [i.e., statutory] ‘wetland’ has become a necessary prerequisite to any improvement of land, if an unwitting violation of the Act is to be avoided." (See People v. Macintosh, No. 91-7917-AR (Iosco County Circuit, June 8, 1992).)