The Natural Resources & Environmental Protection Act (NREPA) (MCL 324.101 et seq.); Violations of Part 31 (Water Resources Protection) (MCL 324.3101 et seq.) & Part 91 (Soil Erosion, Conservation, & Sedimentation Control) (MCL 324.9101 et seq.); Discharge of sediment-laden water into wetlands; MCL 324.3109; Equitable estoppel; Lakeside Oakland Dev., LC v. H & J Beef Co.; MCL 324.9116; Void for vagueness challenge; Department of State Compliance & Rules Div. v. Michigan Educ. Ass’n-NEA; People v. Lawhorn; “Soil erosion”; MCL 324.9101(17); MI Admin Code, R 323.1709 & 323.1710; Due process challenge to fines for failing to have an individual National Pollutant Discharge Elimination System (NPDES) permit; Distinguishing Department of Natural Res. v. Bayshore Assoc., Inc.; MCL 324.3112(1); “Waste” & “wastewater”; R 323.2104(aa)(i), (xiv), & (bb); An individual permit as a “site-specific permit”; MCL 324.3118; R 323.2190 & 323.2112; Enforcement of a settlement agreement; Unclean hands doctrine; McFerren v. B & B Inv. Group; Attorney Gen. v. PowerPick Club; Attempt to use a post-deposition affidavit to contradict earlier, damaging testimony to create a question of fact; Kaufman Payton, PC v Nikkila; Department of Environment, Great Lakes, & Energy (EGLE); Settlement agreement (SA); Soil erosion & sedimentation control (SESC); Eaton County Drain Commissioner (ECDC)

In this case involving fines for violating Parts 31 and 91 of the NREPA, the court concluded that the evidence showed the wetlands boundary was what was referred to as the BD line and that plaintiff-EGLE was not estopped from asserting that an orange fence did not represent the boundary. It also rejected defendant-Brookside’s void for vagueness challenge to MCL 324.9116, noting the Legislature defined the term soil erosion and determining that “Brookside was well aware of the prohibited conduct and was not fined for arbitrary decisions by the enforcing agencies.” It also rejected Brookside’s due process challenge to the fines assessed for failing to have an individual NPDES permit. Finally, it found that the trial court did not abuse its discretion in granting EGLE’s motion to enforce the parties’ SA, rejecting Brookside’s unclean hands argument. The “issue of the wetlands boundary was important because it impacted whether Brookside was violating Part 31 of the NREPA by discharging sediment into wetlands.” The court determined that the evidence was adequate to establish “that the BD was the valid wetlands boundary through 2015.” While Brookside asserted that, through its expert (M), it at least it raised a genuine issue of material fact as to whether the BD line should apply, M “specifically admitted that he did not know what his hydrology wells would have shown in prior years.” The court also found Brookside’s void for vagueness challenge lacked merit. Brookside contended “that someone could be fined for failing to prevent the movement of one grain of sand or for failing to prevent soil movement during significant rain events. However, [D], an EGLE employee, again and again testified to severe violations and repeatedly stated that the Part 91 violations she observed on Brookside’s site were some of the worst she had ever seen, if not the very worst.” In addition, it was “extremely significant that Brookside had an SESC permit, based on an SESC plan that it had voluntarily submitted to the ECDC, but did not operate its site in accordance with this plan.” As to the NPDES permit issue, Bayshore was not analogous because applicable rules existed for an individual permit application. As to enforcement of the SA, under PowerPick Club, “[a] defendant with unclean hands may not defend on the” basis that plaintiff also has unclean hands. Affirmed.