News Story

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

Anonymous complaint sparked investigation

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.”

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.

Commentary

There’s something wrong with Union Township: Part 3

Outrageous costs and inexplicable demands stymie development

Officials of Union Charter Township slowed the development of a gymnastics center in 2023, marking another in a series of hurdles that have stymied development in the Isabella County community.

Residents and former leaders claim that the township is holding up improvements due to employee micromanagement, unnecessarily high costs, and inexplicable demands placed on entrepreneurs, builders and philanthropic projects.

In 2022, The Morey Foundation, an Isabella County-based philanthropic organization, announced that it intended to add a $2.5 million, 13,000-square-foot gymnastics center to an existing building the foundation had previously donated, known as the Morey Courts Recreation Center. The Morey Foundation is a long-time donor to the Mackinac Center for Public Policy, which publishes Michigan Capitol Confidential.

During the gymnastics center’s construction in 2023, the township billed the Morey Foundation nearly $50,000 for water and sewer hookup, according to an invoice. When the foundation probed what appeared to be an excessive charge, township employees refused to consider an alternative or address the foundation’s concerns over the fee size and other issues.

Morey Courts and the new Morey Gymnastics Center are part of the Isabella Community Sportsplex, a larger complex that includes a hockey arena.

In April 2023 Kim Smith, Union Township’s public service director, billed the Morey Foundation $49,998 to connect water and sewer service to the new gymnastics center. Erik Spindler, executive administrator at the Morey Foundation, began a time-intensive, costly effort to demonstrate to officials that the fee was excessive and should be rolled back.

Smith told the Morey Foundation that township officials calculated the fee by using the water costs of the hockey arena and courts at the sportsplex as a comparison.

Spindler questioned the comparison. The hockey arena has restrooms, a concessions area, locker rooms, showers and a Zamboni to clean and smooth its ice rink between uses. A Zamboni typically uses between 200 and 275 gallons per cleaning, potentially totaling thousands of gallons of water use per day. A gymnastics center would not need that much water. Spindler examined how much water the hockey arena used from 2018-23 and found it to be seven times the amount used by the Morey Courts Recreation Center.

Smith also appears to have erred in her tally of fixtures at both facilities. The hook-up fee is based on gallons per fixture. The higher the fixture count the lower the fee. The correct count is 133, but Smith used just 48 – a mistake worth nearly $31,000 to the development.

These were not the only concerns the foundation raised.

The invoice claimed the water usage calculation was based on a two-year average, but it included an additional ninth quarter. The Morey Foundation also pointed to an outlier quarter. Usage in 2021’s fourth quarter was almost 2.9 million gallons. Water use during the previous quarter had been just 145,000 gallons. The township refused to remove the outlier from the calculation, which added almost $10,000 to the invoice, according to the foundation.

Spindler also suggested to Smith that instead of relying on the arena and courts for a comparison, she should use a local children’s museum, due to its size, amount of public traffic and a similar number of fixtures. According to a letter addressed to township trustees by The Morey Foundation, Smith apparently balked at that suggestion but suggested the fee could increase if the foundation wanted her to recalculate it based on square footage.

The Morey Foundation asked the township to reconsider the invoice fee. After being told that no permit would be issued unless the fee was paid in full, the foundation paid the fee. The township agreed to place the payment in escrow, pending a resolution of the dispute.

This was not the first time the township made expensive water-related demands that threatened a project’s timely completion. Investors and developers must spend extraordinary time and resources when dealing with the edicts of the local township.

Spindler contacted township manager Mark Stuhldreher and argued for a more appropriate comparison and a lower fee. Stuhldreher initially responded via letter that the township would not deviate from using as its comparable the ice arena and courts, citing an ordinance. But he eventually agreed that the fixture count was wrong and blamed the incorrect tally on old construction plans for the arena and courts. Based on this, he adjusted the fee to $19,106, a $30,000 decrease in the initial fee. According to Spindler, Stuhldreher was surprised that anyone would challenge a $50,000 fee — which he saw as a small percentage of the total bill.

The Morey Foundation still considered the fee too high and appealed to the township Board of Trustees. It also took issue with Stuhldreher’s indifference to its concern about unnecessarily high fees.

After presenting its case to the Board of Trustees in May 2023, The Morey Foundation won an 87% reduction in the fee the township had initially charged. It paid the new amount of $6,580.11.

“What caught my attention most during this proceeding was when the township supervisor reported that the board’s decision shouldn’t be considered precedent because the board didn’t want others to negotiate fees,” Spindler said in an interview with Michigan Capitol Confidential. “This wasn’t a negotiation, it was an appeal to the township’s expensive error,” Spindler added.

All this hassle could have been avoided if township employees had treated The Morey Foundation like a customer to be served rather than a bank account to be bled. Or if the township had visited the facility to count fixtures instead of relying on old plans — the arena and courts are only a four-mile drive from the township headquarters. The experience of the foundation has played out for others looking to do business in Union Township. In this series, the authors have interviewed eight former public officials, 13 local builders and entrepreneurs, and other residents and business owners.

Consistent themes have emerged from our interviews. The township makes often irrational and expensive demands on builders; it leverages fears of project delays to collect fees, and it overcharges for its services. This is not the first time the township has charged excessive fees. It almost seems like it is trying to tax builders and business owners under the guise of a service fee.

Citizens, taxpayers and philanthropists deserve better than they are getting from Union Township. Township trustees need to keep a closer eye on their employees to ensure constituent service and to protect the township’s reputation. Government should serve citizens at the most reasonable cost rather than hassle them with unnecessary hurdles, extreme fees and disrespect.

Michigan Capitol Confidential reached out to Union Township for comment but did not receive a response.

(Editor’s note: See here for part 1 of this series and here for part 2.)

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.