PASSING MICHIGAN’S WETLAND PROTECTION ACT

Excerpt from Chapter 11 of Ruin and Recovery: Michigan’s Rise as a Conservation Leader by Dave Dempsey

…One more major environmental fight loomed in the Capitol as the decade neared its end. Thwarted by a narrow margin in the 1978 session of the Legislature, environmental and outdoor organizations hoped to make Michigan one of the first states in the country to pass a strong wetlands protection law in 1979. The difficulty of this final battle was rooted in the state’s long history of draining and disparaging wetlands.

Almost from the first day of pioneer settlement in the 19th Century, public policy and private impulse had demonized Michigan wetlands as unhealthy wastes that were best filled or drained for productive use. Known as swamps or “drowned lands,” these areas were regarded as ugly and dangerous. In the 1879 report of the State Board of Health, Dr. Henry Lyster said one-seventh of the state’s surface area lay in “wet marsh or boggy saturated land” below the 45th parallel, where malarial diseases menaced public health. He added, “…[A] very large proportion of these lands can be drained and made available and profitable to agriculture, and in the meantime diminish very noticeably the amount of sickness and mortality from disease of a malarial type.”[1] Lyster noted with approval the famous Chandler Farm twelve miles north and east of Lansing. When Michigan became a state, marsh grass populated what was originally a 5,000-acre lake, but under the ownership of Zachariah Chandler, who represented Michigan in the U.S. Senate, some 2,000 acres were drained by the digging of a ditch, converting his property to “meadow and pasture lands.” Lyster added that “since the drainage it has been remarkably healthful on the farm.”

“Rather than recognize that excess water in swamps supplied bounteous riparian forests, vast flocks of waterfowl, and other natural riches, legislators along with most citizens, thought that surplus water prevented lands from being even more abundant,” environmental historian Ann Vileisis writes of mid-19th Century attitudes. “Rather than understand swamps as topographic features inherently wet for reasons of geology, geography and climate, legislators regarded swamps as afflicted and agriculturally barren lands in urgent need of human ingenuity.”[2]

Michigan legislators were more than up to the task of curing the wetland blight. Lawmakers passed their first drainage law in 1839 and in 1846 authorized drainage of swamps and marshes if they were determined to be a source of disease. In 1898, the Legislature created the elected office of county drain commissioner and granted it extraordinary powers to establish drain districts and assess landowners within the districts the cost of draining wet areas.

Over a century of development, drainage laws and the filling of wetlands for the construction of roads, housing developments and commercial and industrial projects took an enormous toll on wetlands. The Michigan Department of Agriculture estimates that by 1956, there were 26,261 miles of legally-established drains in the state, siphoning water from over 17,000,000 acres of land. A 1996 report prepared by the state Natural Features Inventory estimated that development and drainage had cost 2,391,199 acres of an original total of approximately 8,530,000 acres in the state – a loss of 28 per cent. However, the U.S. Fish and Wildlife Service in 1990 put the total at approximately 5.5 million acres of an original 11 million, a 50 per cent loss. Monroe and WayneCounties in southeast Michigan, according to the DNR report, had lost more than 80 per cent of their wetlands.[3]

But even as Michigan’s Legislature was creating county drain commissioners in the 1890s, many Americans were beginning to appreciate the values of wetlands. President Theodore Roosevelt’s creation of national wildlife refuges that contained large wetland complexes which provided waterfowl habitat set an important precedent. The signing of the Migratory Bird Treaty by President Woodrow Wilson in 1916 put in motion events that would eventually oblige the federal government to protect prime habitats for the protected species, including wetlands. In the 1930s, President Franklin Roosevelt’s chief of the Bureau of Biological Survey, Jay (Ding) Darling, who later founded the National Wildlife Federation, created the federal duck stamp program to help finance the purchase of waterfowl refuges. The voices of poets and scientists added to the growing chorus of concern about the loss of wetland habitats. In addition to providing pleasing landscapes, it was well understood by the 1970s that wetlands strained pollutants from water, controlled the runoff of sediments, stored flood waters, and provided habitat for fish, amphibians and waterfowl.

Passing a state law to protect them was not an easy task because the public values of wetlands collided with the American tradition of private property rights. Restrictions on filling or draining wetlands would limit the ability of property owners to construct homes, commercial developments, and other desired developments. The limitations could also jeopardize the ability of farmers to drain areas for conversion to cropland. Organized interests potentially opposed to wetlands legislation included agricultural organizations, homebuilders, realtors, mining companies (who disposed of tailings in wetlands), pipeline companies, and forest products companies. Commenting on the 1978 wetlands bill, a realtor grumbled, “If this bill goes through as written and the private landowner has a wetlands parcel in excess of five acres, he will not be able to add one shovel full of dirt to that property without an OK from the DNR.” The bill was “confiscatory,” another complained.

The bill had also died in previous sessions because of the opposition of State Senator Mack. Representing the western Upper Peninsula, he argued that “downstaters” had no conception of the conditions of his constituents and that restrictive laws damaged the economic growth of his district. “…I believe that the needs of people, in my judgment, shouldn’t be superseded by a cattail or a pussywillow. Now, I don’t want to see anything destroyed, but I don’t want to see wholesale confiscation of property, because the Detroit Free Press or somebody else – who own no property, who are not involved – think they have the right in the name of environmental preservation to confiscate through legislation and public hearings individuals’ property rights…I think frankly that we’re getting into a socialistic government under the disguise of preserving the ecology,” Mack told the student publication, Michigan Earth Beat.[4]

Mack made the comments in 1976 when he chaired the Senate Conservation Committee, which controlled all action in that chamber on environmental bills. But early in 1979 Majority Leader William Faust deposed him as chair, replacing him with John Hertel, who was far more sympathetic to environmental legislation.

Two other principal forces combined to help advance the proposed Wetland Protection Act. First, under 1972 amendments to the federal Clean Water Act known as Section 404, the Army Corps of Engineers could authorize state agencies to issue federal “dredge and fill” permits for wetlands developments if the states could demonstrate adequate state laws. This gave development interests a reason not to fight the bill; they could more comfortably work with state Department of Natural Resources staff in field offices around the state than with federal officials housed principally in the Detroit area who were also less subject to political influence.

Second, a 28-year-old graduate of the University of Michigan Law School was on the scene to shepherd the bill through the Legislature. John Sobetzer, a native of New YorkState who had studied under Joe Sax, the author of the Michigan Environmental Protection Act, devoted himself to passage of the bill on behalf of the organization he directed, the East Michigan Environmental Action Council (EMEAC). Formed in 1970 as a cross-state twin to Joan Wolfe’s west Michigan group, EMEAC declared wetlands protection to be its top priority in 1976 and turned Sobetzer loose. Quiet, patient, and thorough, Sobetzer impressed politicians with the soundness of his reasoning rather than direct political influence. “I have never in my life seen any citizen do what he did,” said Bob Garner, who was an aide to Representative Thomas Anderson, chair of the House Conservation and Recreation Committee. “By just being polite and giving good, thoughtful advice. And he had a little bit of political savvy, too.”[5]

Sobetzer was modest about his role. “EMEAC took the wetlands act on as its primary legislative focus and I think that was key to making it the top priority for
environmental legislation that session generally. EMEAC provided a lot of
good materials on the benefits of wetlands which we supplied other eventual supporters with.”[6]

Garner said that when the Michigan Association of Homebuilders proposed a host of weakening amendments to Senate Bill 3, sponsored by Senator Kerry Kammer, Sobetzer talked legislators out of supporting them. “John just shot them down in flames. The committee was in awe of his knowledge.” But Sobetzer knew when to compromise, too. To defuse opposition from Upper Peninsula legislators, he and Anderson agreed to an amendment to exempt iron and copper mining companies from the wetlands law. The effect was minor, since the 1972 InlandLakes and Streams Act already required permits for most uses the mining companies would make of wetlands. Other concessions were made to provide exemptions for most agricultural uses and drain projects initiated before 1973, allowing the powerful Michigan Farm Bureau to endorse the measure. Even with the changes, the bill required a state permit for construction or drainage on millions of acres of private lands.

The bill also moved forward because of a string of editorials from the Detroit Free Press. Garner, Sobetzer and Kammer all remembered the paper’s opinions as creating a climate of urgency for the bill. Coming from the Detroit area, Hertel and Kammer were both sensitive to editorial positions of the news media in that metropolitan area. Authored by Barbara Stanton, who had become a birdwatcher and lover of natural landscapes in her adult years, the editorials – on February 8, February 26, March 17 and April 4 – helped shore up votes for the bill. Stanton reasoned, threatened, implored and rhapsodized. “Wetlands – marshes, bogs, ponds, wet meadows, coastal areas – play such a vital role in flood control, maintenance of water quality, preservation of wildlife and recreational opportunities, that we can hardly afford not to save them. They are more efficient than any sewer or storm drain system man has ever devised, and fertile, productive and beautiful besides. We ought to act, at long last, to protect them.”[7]

A chorus of other editorial voices joined the Free Press, including the Detroit News, the Saginaw News and WDIV-TV in Detroit, which complained that “wetlands are being devoured by developers at a rapid rate, causing pollution and flooding. Michigan needs a law to protect this natural resource.”[8] Governor Milliken, the UAW, the MUCC and most environmental organizations were urging passage of the bill. Just as MEPA had come to seem inevitable at the start of the decade, so did the Wetlands Protection Act in 1979.

The final few paces along the road to passage of Senate Bill 3 were difficult ones, however. After a speech from Upper Peninsula State Representative Dominic Jacobetti in November which blamed the problems of the nearly-bankrupt Chrysler Corporation on environmental laws, the House Conservation Committee weakened the legislation to stall wetlands regulation in counties with populations of less than 100,000 until the state DNR conducted an inventory of their wetlands and provided notice to affected landowners. Swallowing hard, the coalition supporting the bill accepted the change, but defeated another which would have enabled landowners whose property values were diminished by the bill to go to court and seek an order to force the state to purchase the property at the previous market price, compensate the landowner for the lost value, or modify the agency decision to preserve the market value. The amendment actually passed 56-42 on its first try, but was later stripped from Senate Bill 3.

Final passage of the bill occurred late the final night of the legislative session in 1979. Jane Elder of the Sierra Club watched with friends from the Senate gallery and began to believe enough senators would flee late at night to kill the bill. “I don’t think so,” one of her peers said. “Look at the doors down there.” UAW representatives stood outside the Senate chambers, sending the message that senators who deserted the vote were spurning the union as well as wetlands protection. The majority favoring the bill held. “It was a glorious moment for coalitions in Michigan,” Elder said.[9]

Renamed the Goemaere-Anderson Wetlands Protection Act in honor of its original sponsors, former Representative Warren Goemaere and Tom Anderson, the bill became law in 1980. Not long after, Sobetzer quit EMEAC to live in the Vermont, where his family had summered in his childhood. “I never liked living in the suburbs, in apartments that reminded me of animal cages, connected by traffic jams, far from friends and family and natural places. I wanted to hike around and live in the mountains,” he said.

His work had brought a fitting end to a monumental decade of environmental energy and accomplishment in the Capitol and the nation. The U.S. Congress had passed a strong Clean Air Act in 1970, the Clean Water Act in 1972, and dozens of other major environmental laws. At the State Capitol, Governor Milliken had urged legislators on; Wolfe, Washington and Sobetzer had fiercely lobbied them; skillful conservation-minded legislators like Anderson had engineered support from just enough of their colleagues; and editorial writers and common citizens had entreated and scolded lawmakers to do the right thing. In ten years, the Legislature had approved more than 20 major environmental laws – and the people themselves had approved one in the voting booth.

[1] “The Reclaiming of Drowned Lands,” Henry F. Lyster, A.M., M.D., Seventh Annual Report of the Secretary of the State Board of Health for the Fiscal Year Ending Sept. 30, 1879, 1880.

[2]Discovering the Unknown Landscape: A History of America’s Wetlands, Ann Vileisis, Island Press, Washington, D.C., 1997, p. 76.

[3] “Wetland Trends in Michigan Since 1800: A Preliminary Assessment,” Patrick Comer, Michigan Natural Features Inventory, Michigan Department of Natural Resources, June 1996.

[4] “Wetlands Bill Dies in Senate Conservation Committee,” Michigan Earth Beat, December 17, 1976.

[5] Interview, October 1999.

[6] Personal communication, October 17, 1999.

[7] “Wetlands: Murky Dealings in the Senate Threaten Needed Protection,” Detroit Free Press, February 26, 1979.

[8] Editorial broadcast February 28 and March 1, 1979.

[9] Personal communication, April 17, 2000.