Michigan court upholds penalty for filling wetland

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GreenGavelBy Eric Freedman

Property owners who converted wetlands to a horse pasture without a state permit must restore the site and pay a $10,000 civil fine, the Michigan Court of Appeals has ruled.

The three-judge appeals panel unanimously upheld a trial judge’s order that Hernan and Bethany Gomez remove 1.2 acres of fill material they illegally placed in a wetland on their 54-acre Livingston County parcel between 2005 and 2010.

The Gomezes said they did it because they wanted to construct a “working ranch” with horses next to their new house.

Wetlands are continuing to disappear in Michigan, according to the state Department of Environmental Quality (DEQ).

The state‘s current 6.5 million acres of wetlands is down from 10.7 million acres before European settlement.

The major factors are agriculture — which accounts for almost half the loss — development, logging and recreation.

“There are few ecosystems on Earth as biologically diverse as wetlands, and few places where wetlands take as many forms as in Michigan,” a 2014 DEQ report said. “Approximately 17 percent of Michigan, representing millions of acres, is covered by one of a variety of wetland types, ranging from diversely vegetated lakeplain (the bottom of extinct lakes) prairies to small vernal (seasonal) pools located in the isolated woodlots of agricultural communities.”

Between 1978 and 2005, the counties that lost the highest percentage of their wetlands were Macomb, Huron, Sanilac, Ottawa, Bay and Lapeer. Lenawee is among the counties that lost the most wetlands between 1800 and 2005 — 84 percent — according to the report.

DEQ discovered the violation in 2010 while reviewing photos in an unrelated case, the decision said. Agency staff then investigated, took plant and soil samples, identified the boundaries of the filled-in area and told the Gomezes to restore the wetland.

The Gomezes failed to comply, the court said. After inspections in 2011, 2012 and 2013 revealed that no restoration work had begun, DEQ sued.

At a non-jury trial, an Ingham County judge ordered the Gomezes to remove all the fill material, allow the soils to return to their original grade, reestablish native wetland plants and shrubs, and monitor the site for invasive species.

On appeal, the Gomezes unsuccessfully argued that the permit requirement didn’t apply because their new horse pasture was a farming-related or ranching-related activity.

Not so, the court said.

Filling in the wetland was not cultivation of a crop, and it “completely changed the character” of the area “so it is now an upland meadow surrounded by wetland, except for the very small portions that still qualify as a wetland despite the filling,” the court said.

The court also rejected arguments that DEQ waited too long to sue and that the restoration order and fine were too harsh.

The Gomezes haven’t decided whether to appeal further, said their lawyer, Douglas McClure of Ann Arbor.

The Legislature changed state law in 2013 to specify that the permit exception applies only to “established ongoing” farming and ranching operations.

McClure said, “To me that made it pretty clear that it was not illegal” when the Gomezes filled in their wetland “because the statute hadn’t been changed until 2013.”

Bill Larsen chief of the resource enforcement unit in DEQ’s Water Resources Division, said, “People should be aware of where they need permits and should apply where they’re required.”

He said, “We’re waiting to see the impact going forward” of the court decision and whether the Gomezes will appeal.

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