Michigan man could face $1.7M fine for expanding his own pond

Michigan’s environmental agency could fine a Freeland man $1.7 million for deepening his own pond.

From 2020-2023, Joshua Wenzlick expanded a small pond on his property. The state considers the land, a former sand mine, a regulated wetland, according to his brother Zachary Wenzlick, who spoke to Michigan Capitol Confidential in a phone interview.

After confirming that the local government didn’t require him to obtain a permit for the project, Joshua hired Schlicht Ponds of Montrose, a licensed contractor, to excavate the pond to about 20 feet in one section. That depth is sufficient to sustain wildlife when the pond freezes over in the winter, ensuring there would be enough oxygen.

Joshua stocked the pond with about 700 fish — a mix of bass, bluegill, crappie, and perch. After stocking the pond, ducks, geese, and painted turtles moved into the pond, Zach said.

In March 2023, an anonymous person complained to the Department of Environment, Great Lakes, and Energy, claiming the excavation might cause a drainage issue for a nearby road. On May 16, 2023, Zach said that agency officials knocked on the door of Josh, who was asleep. Then, they accessed his property and pond without permission, Zach said.

The environmental agency says it lawfully investigated an alleged violation of Section 30314 of the Wetland Protection Act, as well as Part 301 Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act. The agency is allowed, officials said, to enter premises suspected of causing an “imminent threat to the public health or environment” or if it has reasonable cause that the wetland “is a water of the United States as that term is used in ... the federal water pollution control act.”

Jerrod Sanders, the agency’s assistant director of the water resource division, told Joshua that it acted within the law, according to an April 10, 2024 email he sent.

“By all accounts that I’ve heard from both sides, I believe Brian Marshall followed the department’s longstanding practice (and the law) when accessing your brother’s property for the purposes of responding to a complaint of a potentially substantial violation,” Sanders wrote. “He attempted to contact someone at the house by knocking at the door, and then proceeded to inspect non-curtilage portions of the property for reported violations. That method of access is a requirement of our assumption of the federal regulatory program, occurs thousands of times a year across the state, and has not resulted in adverse court ruling(s) to date.”

On Jan. 11, 2024, the environmental agency issued a violation notice order, requiring Joshua to do five things:

1. Remove all unauthorized fill placed in wetlands surrounding the constructed pond back to original grade with original soils exposed.
2. Restore the wetland by filling a portion of the pond to the original grade with native topsoil in the upper six inches.
3. Place no removed material in wetlands or regulated areas outside what has been identified within restoration requirements.
4. Seed certain impact areas with approved native wetland seed.
5. Provide photos in the following three years in the summer to document site conditions and successful restoration.

The agency added that upon completion, it will consider processing an After-the-Fact permit application if Wenzlick applies through the portal with detailed project plans and pays the fee, after a review finds the site complies with the notice.

In 2023, EGLE responded to a complaint about Wenzlick’s property, said Jeff Johnston, the environmental agency’s public information officer.

“Unfortunately, we have been unable to resolve the discovered violation through voluntary means, as the documents in MiEnviro demonstrate,” Johnston told CapCon in an email. “EGLE will not comment on ongoing enforcement negotiations except to correct these errors of fact: It is not accurate to state that Mr. Wenzlick is being told to restore the property to its previous condition, i.e. to fill the pond. It is also inaccurate to say EGLE has provided no factual basis for the change in status to a regulated wetland.”

Refilling the pond would likely kill hundreds of fish, Zach said.

“This is absurd to us, that the department in charge of protecting the environment is trying to destroy this thriving ecosystem,” Zach said in a phone interview.

Michigan Department of Environment, Great Lakes, and Energy

Anyone accused of conducting unpermitted construction activities in a wetland can face daily fines of up to the law firm of $10,000, according to a Foster, Swift, Collins, and Smith. If EGLE started levying the maximum fine since July 1, 2024, the penalty will have already reached more than $1.7 million.

However, the agency’s primary interest is “always in assuring that existing violations are brought into compliance with the laws that protect natural resources for all of Michigan’s citizens,” Johnston wrote. “Presenting the maximum possible fine is not an accurate way to portray virtually any settlement negotiation for this type of violation.”

Zach said Joshua will have already spent $15,000 in legal fees by the end of December, and they haven’t reached litigation yet.

“All we wanted to do was have a recreational pond for our family to enjoy,” Zach said.

Michigan’s environmental agency has “an almost unquestionable authority regarding wetlands issues,” said Jason Hayes, director of energy and environmental policy at the Mackinac Center for Public Policy.

“They have demonstrated this power in situations like the Hart Enterprises case, where the agency was able to effectively ignore the input of a former Michigan DNR water quality specialist and employ what they referred to as ‘a judgment call’ to carry out an eight-year-long legal battle to stop the simple expansion of a parking lot in an industrial area,” Hayes wrote. “In this story, they appear willing to arbitrarily and unilaterally stop a property owner from restoring their private property from a former mine site into a thriving pond ecosystem that benefits wildlife. Regardless of what efforts a property owner may have employed to protect or improve the natural environment and regardless of support and help from elected officials, EGLE has once again chosen to gum up the process with threats of fines and legal action.”