From a Vague Statute to Expansive Regulations

Does this mean the DEQ is off-base in its view of Michigan wetland law? Arguably yes, though it should be remembered that the department has the difficult job of creating practical rules for a poorly defined statute and making those rules consistent with other laws.[*] At the very least, however, it’s clear that other reasonable readings of Michigan’s wetland statute — particularly of the words "contiguous," "stream" and "wetland" — would have placed Hart Enterprises’ property outside the wetland statute’s jurisdiction.

What’s also clear is that if the DEQ’s reading of any one term in the statute is expansive, the statute’s reach becomes very broad indeed when several expansive terms are taken together. "Wetlands" that are not bogs, swamps or marshes and that lie within 500 feet of a qualifying drainage ditch can cover, literally, a lot of ground.

In fairness, the DEQ is hardly alone in this approach. The author has worked with regulatory agencies in several different states, and he observed this tendency in each of them. After all, any agency that reads its powers narrowly doesn’t just limit its own staff and budget; it leaves itself open to accusations by activists and politicians that it’s shirking its duty. No one likes to be charged with that.

Ultimately, the real problem lies with the original statute. Legislators cannot be surprised to see the DEQ fill the legal void when they give the department the power to "promulgate and enforce rules to implement" a wetland statute whose most fundamental terms are debatable. "Wetland," "stream," "lake," "pond," "contiguous," "vegetation" and "aquatic life" were all inadequately defined.[29]

The statute also requires the department to make broad assessments of the "public interest" and to use these assessments to determine whether a particular permit will cause "an unacceptable disruption" to the state’s aquatic resources. Such sweeping determinations should never be left to an executive agency: They set up an executive department to be a legislature, prosecutor and judge. Under such circumstances, it’s no wonder that Alan Taylor — or any resident — might feel the department has too much power.[†][30]

[*] Indeed, when the DEQ is questioned about its interpretations of state wetland law, the department often states that the Michigan Legislature expects the department to read the statute in ways that enable Michigan to maintain its special status under federal wetland law. Basically, this status means Michigan is currently one of two states where federal permits are not required when people wish to modify areas considered wetlands under federal law; state permits suffice. Michigan qualified for this status by meeting certain legal requirements and convincing the U.S. Environmental Protection Agency that the state’s wetland law is sufficiently stringent.

But a concern over federal permits does not in fact provide a legal basis for the DEQ to interpret the state wetland statute in light of federal requirements. Nothing in the state wetland statute (or in the original 1979 state wetland statute) refers to state administration of federal permits or otherwise suggests the DEQ should maintain Michigan’s federal permit status. If the wetland statute must be modified to meet federal requirements, only the Michigan Legislature — not the DEQ — can do so. (See 1979 Public Act 203, which is the original wetland statute. The only part of that statute that might be considered relevant to federal wetland permits is a reference to the state’s making “contracts with the federal government” and others for “the purposes of making studies” to promote better wetland management. But these “studies” cannot be construed as federal wetland permits, especially contrasted with how extensively and explicitly the state Legislature describes the proper handling of municipal wetland ordinances and permits. See 1979 Public Act 203, MCL 281.704 (repealed 1995) and MCL 281.708(4) (repealed 1995).)

[†] The permit portion of the wetland statute repeatedly requires the DEQ to make broad policy decisions. The department is told to determine whether a particular wetland permit will be in the “public interest,” to weigh “the benefit” against “the forseeable detriments,” and to consider “the relative extent of the public and private need.” The DEQ is also expected to evaluate “the availability of feasible and prudent alternatives,” the recommendations of other state agencies, and the “economic value, both public and private, of the proposed land change.” (See generally MCL 324.30311(1)-(3).)

Such a widespread balancing of societal and individual interests is precisely what legislators are elected to do. An executive agency can occasionally help administer the details of a particular law, but as the Michigan Supreme Court has noted, “Policy determinations are fundamentally a legislative function.” (Blank v. Department of Corrections, 462 Mich 103, 116 (2000); see generally Michigan Constitution of 1963, Article 3, Section 2.) Hence, the wetland statute’s permit provisions might be unconstitutional under the state constitution’s separation-of-powers clause, according to Patrick J. Wright, senior legal analyst for the Mackinac Center for Public Policy.