The Hart Dispute Since the 'Wetland Fill'

State legislators have produced a wetland statute that is bad law, no matter what its good environmental intentions. The Legislature’s failure to define key terms and its broad grants of power to the DEQ have left the law overbroad and experts divided.

These failures put Alan Taylor, who objects to the law’s seemingly arbitrary results, in murky waters. In October 2007, the DEQ obtained a search warrant and arrived at Hart Enterprises escorted by police. The department’s staff inspected the area and took the vegetation and other samples referred to earlier (see "The DEQ’s viewpoint," Page 6). On Dec. 20, 2007, the DEQ met with Taylor at Hart Enterprises, and on Dec. 28, 2007, and Jan. 4, 2008, the department sent Taylor letters reiterating its view that the area into which Hart Enterprises had expanded the parking lot in 2006 was a wetland, and that the expansion had violated the law. The agency also noted that approximately 0.67 acres of wetland remained to the west of the expanded lot, and that Taylor would need to apply for a wetland permit in the future if he hoped to expand his parking lot to the west again.[34]

The letter of Jan. 4 also stepped up the department’s enforcement, advising Taylor "to discontinue any unauthorized activity within the regulated wetland and bring the site into compliance with [the wetland statute] within 30-days from the date of this letter." To comply, the letter continued, Hart Enterprises should "remove all fill from the regulated wetland," so that the area is "restored to its pre-fill contours with all fill material removed such as to expose the original soil beneath the fill." In short, Hart Enterprises is being told to rip up the parking area it paved in 2006.[*][35]

The case may now end up in court. Civil and criminal charges could be leveled against the firm.[36]

How the dispute will end is hard to tell. What’s clear is that Taylor’s affection for Michigan has been overshadowed by this struggle over the use of his land. He calls the state’s wetland process "bad government" and labels the DEQ’s insistence that he apply for a wetland permit "coercive intimidation."[37]

Hart Enterprises’ future here is now uncertain. In a letter to state Sen. Wayne Kuipers on July 28, 2006, Striebel wrote: "[T]he state would deprive us of all use of the remainder of our property now required for our expansion. Should the MDEQ prevail in their attempts to deny our use of this property, we will be forced to move our operation, and we can assure you that should that occur, we won’t remain in the State of Michigan!"[38]

[*] The letter contained a second condition: “Also, the small ditch draining the wetland ... must be filled to original grade with sufficient material to prevent draining of the wetland through the ditch.”