Stipulate That Intermittently Flowing Ditches Are Not Streams

As noted earlier in "‘Contiguous’ to a ‘Stream’," classifying the Rogers Drain as a stream is a stretch. Yet the logic that labels that drain a stream — and thus a basis for regulating any "wetland" within 500 feet of the ditch’s entire length — would apply to many of the man-made drainage ditches in the state, including the ditches that commonly border Michigan’s roads.

Policymakers should recognize just how sweeping the law becomes under this definition. The swath of land 500 feet to the left and right of a ditch covers 1000 feet, or nearly one-fifth of a mile, for the entire length of any ditch considered a stream. The result is a considerable chunk of land within reach of wetland regulation, especially considering the number of roadside ditches and roadside homes in Michigan.[*]

The Legislature should specifically clarify that intermittently flowing ditches are not streams for the purposes of the act. This modification may be the single most important statutory change the Legislature could make in restoring the original intent of the act and keeping regulatory agencies from gaining a veto power over huge amounts of personal property throughout the state.[†]

Michigan has numerous natural inland lakes, rivers, streams and ponds. Regulating wetlands that have a genuine hydrological connection to these bodies of water will amply protect the state’s wetlands and natural resources.

[*] Consider, for instance, that the Lenawee County Drain Commissioner estimates that the county contains about 1,150 miles of open drains in the county’s inventory. (Stephen R. May, e-mail to Diane Carey, February 19, 2008.) If they, like the Rogers Drain, qualified as streams under the DEQ’s reading of the law, any area designated a wetland within 500 feet of these drains would be subject to regulation. This is not a trivial amount of land in a county of 761 square miles, even if many of the 500-foot areas around the drains overlap. After all, these zones are only part of what would be regulated; any additional land within 500 feet of natural rivers, streams, ponds and lakes would be regulated, too.

[†] Some may argue that even when a ditch flows intermittently, it might ultimately connect in some way to a natural body of water, thereby providing an occasional possible link between that resource and an area designated as a wetland. But many of these physical, hydrological connections are very tenuous. If such remote connections become the basis for regulating land, all of Michigan could be placed under regulation — in which case, the Legislature could have written a very brief law.