The possibility of driving away businesses is only one of the
costs of the shortcomings of Michigan’s wetland law. Another is that homeowners
and business owners alike face a law that makes planning difficult and imposes
new costs and uncertainties on expanding a home or business.
Such uncertainty devalues property rights, since a "right" which
an individual must always ask permission to exercise is more like a privilege,
especially when it is granted by an agency of unelected officials who cannot
describe a concrete method by which they grant their approval. It is no slur on
the motives or professionalism of DEQ staff to say that the Legislature should
never hand a department this sort of power.
Our wetland regime also affects Michigan’s economy. Many states
have relatively flexible wetland regulation, and very few have our abundance of
freshwater lakes, rivers, streams and ponds. As a result, a landowner is much
likelier to run afoul of a wetland statute here than elsewhere. This risk lowers
the value of property and businesses in Michigan and makes the state less
attractive to investors. In the case of Hart Enterprises, the threat may drive
out scores of the "high-skilled, high-wage jobs in emerging, technology-based
industries" that Gov. Jennifer Granholm and others praise.[39]
At the same time, the DEQ’s broad interpretation of the statute
is environmentally counterproductive. Small patches of land with a few wetland
characteristics do not produce a true wetland’s environmental benefits, such as
biological and chemical oxidation. In fact, a DEQ study of man-made wetlands
designed specifically for environmental purposes found that many were
ineffective over time. Wet areas incidental to human activity are even less
likely to provide ecological value, and protecting them drains DEQ resources
from meaningful goals, such as the preservation of true wetlands.[40]
State legislators should recognize that they have produced a
statute that is sidetracked from its intended purpose, weakening the state’s
economy and producing uncertainties that are unfair to property owners, most of
whom can’t afford to fight for their rights in court. To address these concerns, the Legislature should consider the following reforms.
