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Defending Wetlands and New County Law

Antrim officials tussle with property rights advocates

February 7, 2002 | By Keith Schneider
Great Lakes Bulletin News Service

  Antrim County’s wetland ordinance is as strict as the state law and takes the additional step of requiring land owners to gain approval to fill, drain, or develop most wetlands smaller than five acres. Michigan’s 33-year-old state wetland protection law does not oversee wetlands smaller than 5 acres unless they are within 500 feet of a river, lake, or stream.
BELLAIRE, MI — Just eight weeks after Antrim County narrowly approved some of Michigan’s toughest rules to protect water-cleansing wetlands, a group of landowners is preparing a court challenge.

The Constitutional Property Rights Association, a newly formed citizens organization, asserts that Antrim County overstepped its authority last December when the county commission, on a 5-4 vote, enacted one of the most far-reaching wetland protection laws ever approved by a local government in Michigan.

But Charles Koop, the Antrim County prosecutor, joined several county commissioners in arguing that the wetland rules, adopted under a provision of the 1979 Michigan wetland protection act, were specifically authorized by state law and are entirely legal.

The battle is the first prominent property rights dispute in northern Michigan in more than five years. It tests not only the authority of local governments to enact environmental rules that go beyond state safeguards but also the influence of the region’s property rights movement, which was a political force at the grassroots in northern Michigan in the mid-1990s.

The Constitutional Property Rights Association contends that Antrim County could only enact such sweeping land use rules under the state zoning law, which regulates uses of land such as home construction, retail development and the like. Further, says the association, only 11 of Antrim’s 20 townships and villages are zoned. Thus the county does not have the legal right to apply the new wetland rules to the unzoned areas.

"Only a zoned county has the authority to do this and half of Antrim County has no zoning," said Edwin Martel, a landowner and secretary of the property rights group. "What’s wrong with this ordinance is that it’s against the law."

Mr. Koop disagreed. He said the 1979 state Geomare-Anderson Wetland Protection Act specifically authorizes local governments to approve and enforce their own ordinances to regulate wetlands that are smaller than five acres. "Their argument is that any land use regulation has to go through the zoning law," said Mr. Koop. "But local governments regulate uses of land all the time outside of the zoning law. We have regulations governing septic systems that come under the health code. We regulate land uses to reduce soil erosion under the state soil erosion control law. The state wetlands statute gives us the authority to protect wetlands without zoning."

Antrim County’s wetland ordinance is as strict as the state law and takes the additional step of requiring land owners to gain approval to fill, drain, or develop most wetlands smaller than five acres. Michigan’s 33-year-old state wetland protection law does not oversee wetlands smaller than 5 acres unless they are within 500 feet of a river, lake, or stream.

The county law calls for penalties of up to $500 a day for willful violation. State fines are higher, but local oversight means more potential to enforce the rules and actually collect fines. The law establishes a seven-member, county-appointed Wetland Review Board to oversee appeals of construction permit denials, provide enforcement advice, and identify alternatives in disputed cases. And the county is providing public education to help builders and property owners understand how to protect wetlands and avoid violations.

In approving the new rules, which are scheduled to go into effect this summer, Antrim County joined 40 other local governments in 16 counties that have enacted wetland protection laws. However, Antrim, located northeast of Traverse City, is the first county to pass such a measure.

Elected officials said they spent two years studying the issue and holding public hearings before taking the extraordinary step on December 13, 2001 to secure the county’s wetlands. They said in interviews that a public opinion survey showed residents favored tougher environmental rules and more enforcement by a margin of three to one, and that Antrim County’s economic future rests not on new highways and malls but on the fate of natural resources, especially the great stretches of soggy ground.

With 25,000 acres of wetlands, 28,000 acres of lakes, 26 miles of Lake Michigan coastline, and the Jordan River — the first protected under the state Natural River Act — Antrim County has some of the wettest, wildest, and most prized real estate in northern lower Michigan. The scenic beauty is attracting record numbers of new residents as Antrim County’s population has soared to more than 23,000 people, 30 percent more than in 1990.

"This wetland protection is insurance for our future and our families," said Bob Wilson, a lifelong resident, builder, and county commissioner. "We’ve got to protect our natural resources, especially the wetlands which help keep our lakes and rivers clean. Why other counties have not done this is beyond me. Maybe now they will."

Other supporters of the wetland rules noted that the county’s activism was prompted by what residents and officials viewed as weak wetland enforcement by the Michigan Department of Environmental Quality.

Many Antrim County residents were furious when the DEQ gave its stamp of approval in 1997 to a proposal by Shanty Creek Resort to ruin wetlands and use the county's magnificent Cedar River as a water hazard for a new golf course despite clear prohibitions in the state wetland protection law. It took a citizens group -- Friends of the Cedar River -- and a court-ordered injunction to overturn the DEQ's decision.

Then two years later, in 1999, a pair of landowners tried to build a house on an undisputed wetland. Local officials were powerless to intervene despite a clear violation of the law. The Antrim County Board of Commissioners issued a stinging letter of protest that called the permit approval "a violation of the letter and intent" of the state wetlands law.

After that incident Antrim County's conservation-minded leaders decided to end their reliance on state regulators. Surprisingly the DEQ notified the county that it welcomed the new wetland ordinance, which it said would give overwhelmed state inspectors desperately needed help in the field.

Mr. Martel of the local property rights group said the county wetland safeguards are overkill and designed solely to limit new development. He and other property rights activists sought unsuccessfully in January to decide the issue with a ballot referendum, but their petition failed to collect enough signatures. "Antrim County is using this law to further the agendas of local environmental groups," he said. "They want to over-regulate wetlands."

Prominent county conservationists responded that the new rules were necessary and politically popular. "The opposition to the wetlands rules falls into two camps," said Ray Ludwa, vice president of the Three Lakes Association, an environmental organization. "One group just strongly believes that if you own property you ought to be able to do whatever you want with it irregardless of the consequences to neighbors, the watershed, or the environment. The other group is composed of those who have something to gain economically from doing things in wetlands — filling them, running a road through them, building in them. They are a vocal minority and their views in no way reflect the broad support here for these new rules."

Keith Schneider, an environmental journalist, is program director of the Michigan Land Use Institute.

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