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A Better Partnership
November 23, 2016

COA holds that filling activities on owner’s wetland are not considered farming activities for purposes of NREPA

In Department Of Environmental Quality v. Hernan F Gomez, No. 328033, the Court of Appeals held that the Defendants’ filling activities on their wetland property were prohibited and were not considered farming activities.  Accordingly,  because Defendants did not acquire a permit prior to filling in a wetland area, they violated the National Resources and Environmental Protection Act (NREPA).
Plaintiff issued a Department of Environmental Quality violation notice, informing Defendants that an inspection of their property revealed that “fill material had been placed within wetland regulated under the authority of Part 303” of the NREPA.  Defendants agreed that 1.2 acres of wetland on the property were filled over the course of several years, but insisted they were not required to obtain a permit to fill the wetland under the corresponding exemption of the NREPA.
MCL 324.30305(2) provides that, unless otherwise precluded by other state laws or “the owner’s regulation,” certain uses are allowed in a wetland without a permit. Defendants argued that their filling of the wetland and subsequent growing of pasture grass were activities that fell under the exemption in MCL 324.30305(2)(e). In particular, Defendants argued that their activities constituted “preparation and cultivation of the field for farming and ranching use,” qualifying for exemption. 
The trial court held that the filling was unauthorized and violated the NREPA.  The Court of Appeals agreed. Relying on Huggett v Department of Natural Resources, 464 Mich 711 (2001), the Court concluded “that defendants’ acts of filling the wetland in this case were prohibited acts that did not fall under the farming activities exemption.”
The Court rejected the Defendants’ assertion that the act of adding fill material to the wetland constitutes “cultivation,” which is exempted from the permit requirements pursuant to MCL 324.30305(2)(e). The Court held that Defendants’ extensive depositing of dirt in the area did not fulfill the plain and ordinary meaning of “cultivating.” Although placing certain materials on a wetland in order to cultivate the land may qualify under the farming-activities exemption, the Court held that Defendants’ extensive placement of soil and other materials in this case did not qualify under the exemption. Thus, Defendants’ extensive filling was distinct from activities routinely performed in “the operation, improvement, expansion, and maintenance of a farm or ranch. Huggett, 464 Mich at 719, especially because it completely changed the character of the vast majority of the 1.2-acre area.
Accordingly, the Court of Appeals held the trial court correctly determined that defendants’ filling activities required a permit and properly granted summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(10).

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