'Contiguous' to a 'Stream'

In a letter to Taylor dated Dec. 28, 2007, a DEQ official justifies the DEQ’s regulation of Lot 7 by citing two conditions from the wetland statute:

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.["][*]
[Both ellipses ("...") appear in original.][21]

As noted earlier, the DEQ believes Lot 7 meets the first condition concerning "sufficient" water. The department concludes Lot 7 meets the second condition "because the wetland is located within 500 feet of the Rogers Drain[,] which is a stream as defined by Part 301, Inland Lakes and Streams, of the NREPA [Michigan Natural Resources and Environmental Protection Act]."[22]

But the idea that a wetland and a stream are contiguous simply because they lie within 500 feet of each other — not because a connection has been found between them — does not appear in the wetland statute. Rather, the 500-foot rule appears in DEQ regulations interpreting the statute. Since the DEQ wrote these regulations, it could have defined "contiguous" to mean "adjacent" or "sharing a significant hydrological connection."[†] The department had more leeway than it suggests.[23]

Nor does the wetland statute indicate that a drainage ditch like the Rogers Drain (see Graphic 2, Page 5) is a "stream." This definition, according to the DEQ’s letter, proceeds from Part 301 of the state’s environmental laws.

This may seem odd, since Part 301 is entirely separate from the wetland statute (known as "Part 303"); they are different legislative acts. Still, a plausible legal argument can be made that Part 301’s definitions should be reconciled with the language in the wetland statute, since both acts deal with waters of the state.[**]

Even if Part 301 is considered relevant, it’s unclear that the DEQ’s view of a drain as a stream would follow from the Legislature’s definitions there. The only mention of drains in Part 301 is, "‘Inland lake or stream’ means a natural or artificial lake, pond, or impoundment; a river, stream, or creek which may or may not be serving as a drain as defined by the drain code of 1956. ..."

But the fact that a stream can serve as a drain doesn’t mean a drain is a stream. After all, the fact that a school can serve as a polling place doesn’t mean a polling place is a school. In fact, if the Legislature saw streams as natural and drains as either man-made or natural (a common view), a man-made drain might never be a stream under Part 301.[‡][24]

And Part 301 specifically focuses on large bodies of water and excludes small ones. It is therefore not clear that under Part 301 a relatively minor geographical feature like the Rogers Drain should be considered a "body of water" with a "continued occurrence of water." Rogers Drain is an ordinary open man-made ditch, sometimes with flowing water; sometimes with puddles of standing water; and sometimes dry. That such ditches should be considered "streams" is no clearer in Part 301 than it is in the wetland statute.[25]

Finally, it should be noted that the DEQ’s own wetland regulations do not copy the definition of rivers and streams from Part 301, and that the DEQ’s regulations don’t appear to include drains as streams either. In these regulations, an inland river or stream is somewhat circularly defined as "[a] river or stream which has definite banks, a bed, and visible evidence of a continued flow or continued occurrence of water."[26]

Even if one defined "a continued occurrence of water" to include a ditch that sometimes contains very little water at all, this regulation remains silent about drains and ditches. Rather, the regulation equates an inland river or stream to a "river or stream" with the properties listed ("definite banks, a bed," etc); it never mentions other bodies of water or man-made drains. In short, the regulation contains nothing to suggest why the Rogers Drain would be a stream.

[*] The unnecessary second open quotation mark appears in the original.

[†] There is one case in which a 500-foot proximity isn’t enough to establish “contiguity,” but it occurs only when the DEQ engages in an unusual procedure to protect a smaller “essential” wetland and affirmatively establishes that no surface water or groundwater connection exists between a wetland and a body of water:

(iii) A wetland is partially or entirely located within 500 feet of the ordinary high watermark of an inland lake or pond or a river or stream or is within 1,000 feet of the ordinary high watermark of one of the Great Lakes or Lake St. Clair, unless it is determined by the department, pursuant to R 281.924(4), that there is no surface water or groundwater connection to these waters.

(See Mich. Admin. Code r. 281.921(b)(iii); Mich. Admin. Code r. 281.924(4) is a regulation dealing with “essential” wetlands that would not otherwise be covered by the statute.) The DEQ defines “contiguous” to include either the 500-foot proximity described immediately above or those cases involving a permanent water connection or an intermittent surface water connection to inland lakes, ponds, rivers or streams. (See Mich. Admin. Code r. 281.921(b)(i)-(ii).) Note that a 500-foot rule does appear in another statute, where the Legislature stipulates that a permit is required whenever work on an artificial waterway occurs within 500 feet of an inland lake or stream (see MCL 324.30102(f)).

[**] This legal view, formally known as “in pari materia,” is not entirely convincing, however. Both Part 301 and Part 303 begin with definitions prefaced by the words, “As used in this part: …” (see MCL 324.30101; MCL 324.30301(a)-(p)(iii)). This language would suggest an “in pari materia” reading of the two laws’ definitions might be inappropriate, since courts are supposed to assume the Legislature means what it says when it speaks clearly. Moreover, Part 301 is not the only other statute involving waters of the state; there is also Part 305, known as the “Natural Rivers Act.” Notably, Part 305 defines a river as “a flowing body of water or a portion or tributary of a flowing body of water, including streams, creeks, or impoundments and small lakes thereon.” This definition, which mentions streams, would not seem to include intermittently flowing drains, such as the Rogers Drain flanking Hart’s property. In short, “in pari materia” may offer little guidance in this case, since the various acts do not easily reconcile. In any event, the DEQ again appears to have had latitude in formulating wetland regulations; it was not forced by law to conclude a drain is a stream.

[‡] Note that while the language “natural or artificial” clearly applies to “lake, pond, or impoundment,” it does not clearly apply to “a river, stream, or creek,” which may have been commonly understood to be natural.

Someone convinced that drains should be included in the definition of streams might point to Part 301’s statement that an inland lake or stream is also “any other body of water that has definite banks, a bed, and visible evidence of a continued flow or continued occurrence of water, including the St. Marys, St. Clair, and Detroit rivers.”

Yet even this interpretation would depend on tenuous claims that an occasionally flowing ditch is a “body of water” with a “continued occurrence of water.” These distinctions would in turn have to contend with the fact that Part 301 specifically includes major rivers, but specifically excludes smaller bodies of water, such as “a lake or pond that has a surface area of less than 5 acres.” (See MCL 324.30101(h).) The Rogers Drain seems more like the small bodies of water that Part 301 excludes, not the major rivers that Part 301 specifically includes.