If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DEPARTMENT OF ENVIRONMENT, GREAT 

LAKES, AND ENERGY,

Plaintiff-Appellee,

UNPUBLISHED

October 22, 2020

v Nos. 344427; 349094

Eaton Circuit Court

BROOKSIDE CROSSING, LLC, LC No. 2016-000624-CE

Defendant-Appellant.

Before: STEPHENS, P.J., and SAWYER and BECKERING, JJ.

PER CURIAM.

In Docket No. 344427, defendant, Brookside Crossing, LLC, appeals as of right an order 

assessing fines in connection with Brookside’s violations of Part 31 (Water Resources Protection), 

MCL 324.3101 et seq., and Part 91 (Soil Erosion, Conservation, and Sedimentation Control), MCL 

324.9101 et seq., of the Natural Resources and Environmental Protection Act (NREPA), MCL 

324.101 et seq. In Docket No. 349094, Brookside appeals by leave granted an order granting a 

motion by plaintiff, Department of Environment, Great Lakes, and Energy (EGLE),

1

to enforce a 

settlement agreement. The parties had entered into the settlement agreement (SA) to resolve 

EGLE’s requests for injunctive relief. We affirm.

I. OVERVIEW

In 2008, Brookside began a construction project adjacent to Carrier Creek in Eaton County. 

The project continued in various forms for many years, and EGLE alleged that Brookside, from 

2012 to 2015, violated the NREPA in several respects, although only Part 31 and Part 91 violations 

are directly at issue in these appeals. One aspect of the alleged Part 31 violations involved the 

discharge of sediment-laden water into wetlands, see MCL 324.3109, and for this reason the 

 

1 EGLE was formerly known as the Department of Environmental Quality. For consistency, we 

refer to the party only as EGLE in this opinion.
-2-

location of the wetlands/uplands boundary on the site was important. On cross-motions for 

summary disposition, the trial court ruled that the delineation performed at Brookside’s request by 

Maynard Beery in 2006—the so-called Beery Delineation (BD)—established this boundary. 

However, the court allowed a bench trial with regard to whether Brookside, before the pertinent 

timeframe (i.e., before 2012), had converted some land to the west of this boundary to uplands.2 

Brookside takes issue with the trial court’s acceptance of the BD in ruling on the cross-motions 

for summary disposition and with its findings after this initial phase of the bench trial.

In the second phase of the bench trial, the trial court assessed whether and when Brookside 

did discharge sediment-laden water into the now-definitively-delineated wetlands3and it also 

assessed the alleged violations of Part 91. There were two varieties of alleged part 91 violations—

allegations that Brookside allowed sediment to leave the site and allegations that Brookside did 

not maintain effective soil erosion and sedimentation control (SESC) measures on the site. See 

MCL 324.9116. Brookside takes issue only with the latter category of allegations, arguing that 

the applicable statute and rules are void for vagueness.4 Brookside also takes issue with the fines 

imposed for its failure to obtain an individual National Pollutant Discharge Elimination System 

(NPDES) permit for discharging stormwater into wetlands. See MCL 324.3112. Although 

Brookside originally had a so-called permit-by-rule for this discharge of stormwater, EGLE 

decided to require a different, individual permit in 2010, but Brookside failed to comply with 

EGLE’s application requirements.5 Brookside contends that EGLE lacked promulgated rules in 

connection with individual NPDES permits.

In the midst of the proceedings, the parties reached a settlement with regard to EGLE’s 

requests for injunctive relief. Brookside agreed to implement a stabilization plan on the site to 

inhibit erosion and sedimentation. Brookside, to conduct its construction activities on the site, 

needed to have an additional permit—an SESC permit from the Eaton County Drain Commissioner 

(ECDC)—and the SA required that Brookside succeed in obtaining a valid SESC permit from the 

ECDC. Brookside asserted that EGLE violated the SA by interfering with its attempt to get such 

a permit.6 EGLE, by contrast, contended that Brookside violated the SA by unilaterally attempting 

to alter the stabilization plan. Brookside challenges the trial court decision to grant EGLE’s motion 

to enforce the SA. 

II. WETLANDS DELINEATION

As noted, 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. See MCL 

 

2 The BD established wetlands to the west, toward Carrier Creek, and uplands to the east, toward 

an uphill slope.

3 The court imposed a total of $137,500 in fines for these particular violations.

4 The court imposed a total of $73,500 in fines for the violations of the requirement for effective 

SESC measures.

5 The court imposed $12,500 in fines for the lack of an NPDES permit.

6 Brookside had obtained earlier SESC permits, but they had expired.
-3-

324.3109. The court, in ruling on cross-motions for summary disposition, ruled that the boundary 

established by the BD was valid. We conclude that this ruling was proper in light of the evidence 

presented.

This Court reviews de novo a trial court’s decision regarding a motion for summary 

disposition. Spohn v Van Dyke Pub Schs, 296 Mich App 470, 479; 822 NW2d 239 (2012). EGLE 

requested summary disposition under MCR 2.116(C)(10). 

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the 

complaint. In evaluating a motion for summary disposition brought under this 

subsection, a trial court considers affidavits, pleadings, depositions, admissions, 

and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most 

favorable to the party opposing the motion. Where the proffered evidence fails to 

establish a genuine issue regarding any material fact, the moving party is entitled 

to judgment as a matter of law. [Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 

817 (1999).]

Beery was a wetlands expert for Brookside. Importantly, the initial fill permit, issued on 

June 16, 2008, stated that it would expire on June 16, 2013, and indicated that Brookside could do 

construction activities with certain mitigation strategies related to wetlands. The permit 

incorporated drawings based on the BD. It is undisputed that EGLE used to use a two-factor 

approach for defining wetland that involved an analysis of vegetation and soils, and that it now

(since 2009) uses a three-factor approach adopted by the United States Army Corps of Engineers 

(ACOE) that involves an analysis of vegetation, soils, and hydrology. A cornerstone of 

Brookside’s argument on appeal is that Beery focused only on vegetation and soils and did not 

focus on hydrology. In essence, Brookside is arguing that although the initial permit was issued 

in connection with the BD, the BD is now “outdated.” The record demonstrates otherwise.

Beery indicated that he looked at “[d]rainage patterns,” “[s]ediment deposits,” “[d]rift 

lines,” and “[w]atermarks.” The ACOE manual states, “Indicators of wetland hydrology may 

include, but are not necessarily limited to: drainage patterns, drift lines, sediment depositions, 

watermarks, . . . visual observation of saturated soils, and visual observation of inundation.” Beery 

averred that he also considered “soil moisture,” “ponding,” and “flooding.” As such, the evidence 

showed that Beery did consider hydrology, and Thomas Kolhoff, an EGLE employee, agreed. 

Brookside’s argument that no evidence showed that Beery looked at all three ACOE parameters 

is without merit. Brookside contends that according to its later-retained expert, Edwin Martel, 

Beery only looked to soils and vegetation. But Martel testified that he did not know whether Beery 

used a standard that would meet “today’s standard” and could not affirm that Beery did not look 

to hydrology. 

Brookside contends that the best way to determine hydrology is by digging test wells and 

that only Martel did this, but the ACOE, as noted, lists various factors for determining hydrology. 

More importantly, Martel admitted that his “well” information was limited. EGLE’s attorney 

attempted to get clarification from Martel about whether “the information . . . gleaned from the 

wells” was “limited to [2017]” or whether “you [can] tell from those wells what was going on in 
-4-

2012.”

7

 Martel answered, “I don’t have any knowledge of what those wells would have done in 

those previous years except, after looking at the rain data, those were drier years.” The attorney 

asked, “[Y]ou can’t provide any testimony as to what would have happened in those areas 

hydrologically from the wells of 2015, 2014, 2013, 2012?” Martel replied in the negative. In 

addition, Justin Smith, another EGLE employee, averred that he observed indicators of hydrology

at the site in 2012, 2103, and 2015. Also, while Martel asserted in a post-deposition affidavit that 

the wetland elevation at the site was 828 feet and that the line of an orange construction fence8 was 

east and uphill of the 828 feet, he admitted that hydrology was the key factor at issue in delineating 

the wetlands and that he used his test wells to ascertain the hydrology and the 828-feet figure. But,

again, Martel admitted at his deposition that he could not say what his hydrology wells would have 

shown in 2012 through 2015. A post-deposition affidavit may not be used to contradict earlier, 

damaging testimony to attempt to create a question of fact. See Kaufman v Payton, PC v Nikkila, 

200 Mich app 250, 256-257; 503 NW2d 728 (1993). Moreover, a letter from one of Brookside’s 

attorneys to EGLE, dated September 15, 2015, was admitted into evidence at the summarydisposition hearing. The letter stated, “All the previous work was done pursuant to validly issued 

permits. Before work was started years ago, wetlands were delineated. The office of Eaton County 

should have copies of any reports and maps you need in your archives.” A party is bound by 

representative admissions of counsel. Id. at 257.

All this evidence adequately showed that the BD was the valid wetlands boundary through 

2015. Brookside contends that at the very least, it raised, through Martel, a genuine issue of 

material fact regarding whether the BD line should apply. But, as noted, Martel specifically 

admitted that he did not know what his hydrology wells would have shown in prior years. A review 

of all the evidence introduced by both sides shows that EGLE demonstrated that the wetlands 

boundary was at the BD line and that Brookside failed to raise a genuine issue of material fact with 

regard to this showing.

Brookside also contends that after phase 1 of the trial, the trial court should have found that 

EGLE was estopped from arguing that the wetlands boundary was anywhere other than at the 

orange fence. The court ruled after the first phase of the trial that the wetlands began at the BD 

line or the toe of the slope,9 whichever was further west, and was not dependent on the orange 

fence.

This Court reviews for clear error a trial court’s findings of fact after a bench trial. Chelsea 

Investment Group, LLC v Chelsea, 288 Mich App 239, 250; 792 NW2d 781 (2010). “A finding is 

clearly erroneous if there is no evidentiary support for it or if this Court is left with a definite and 

 

7 Martel did not examine the site until 2017. The alleged violations, as noted, occurred in 2012 

through 2015.

8 The parties were debating the significance of this fence, with Brookside arguing that it marked a 

wetlands boundary and with EGLE arguing that it was placed in the middle of wetlands.

9

“ ‘Toe of slope’ means the point at which the side of an excavation intersects the lowest level of 

the excavation.” Mich Admin Code, R 408.40927.
-5-

firm conviction that a mistake has been made.” Id. at 251. “The trial court’s findings are given 

great deference because it is in a better position to examine the facts.” Id.

As stated in Lakeside Oakland Dev, LC v H & J Beef Co, 249 Mich App 517, 527; 644 

NW2d 765 (2002):

Equitable estoppel is not an independent cause of action, but instead a 

doctrine that may assist a party by precluding the opposing party from asserting or 

denying the existence of a particular fact. Equitable estoppel may arise where (1) 

a party, by representations, admissions, or silence intentionally or negligently 

induces another party to believe facts, (2) the other party justifiably relies and acts 

on that belief, and (3) the other party is prejudiced if the first party is allowed to 

deny the existence of those facts. [Citations and quotation marks omitted.]

Kolhoff testified during phase 1 of the trial that after Brookside was issued a permit based 

on the BD, he made compliance inspections. He said that when he visited the site on July 9, 2008, 

he found that areas of BD wetlands had been disturbed and graded. Brookside agreed to put in 

fencing and restabilize the area as a wetlands area. Brookside installed a fence, but Kolhoff stated 

that it was improperly located in the middle of the BD wetlands. Kolhoff testified that EGLE 

decided that “because the activity was now stabilization and restoration of the site, . . . [Brookside] 

didn’t need to move that barrier.” EGLE was concerned that relocating the fence would cause 

additional disturbances to the land, was informed that no additional work would be performed in 

the area, and “felt it would be not productive . . . to move it.” On September 25, 2008, and in May 

2009, the fence was still in the middle of wetlands. Through 2009, EGLE determined that even 

though some sediment had been deposited, it “wasn’t enough . . . to alter” the BD wetlands area 

from wetlands to uplands. In fact, Brookside pulled back some material to cause ponding in the 

area between construction activity and the orange fence, and the area was still wetlands. 

Significantly, Kolhoff testified that he met with Dan Cuthbert, Brookside’s site manager, and with 

Brookside’s attorney and specifically informed them that the orange fence was in the middle of 

the wetlands. He informed them that the placement of wood chips along the fence line was an 

unauthorized fill in a wetlands area. 

Given Kolhoff’s testimony—particularly his testimony that he informed Brookside about 

the fence being in the wetlands—the trial court did not clearly err in concluding that EGLE was 

not estopped from arguing that the orange fence did not represent the wetlands boundary.10

 

10 We decline to review Brookside’s argument about the trial court’s failure to allow it to file a 

responsive brief. The substantive argument is made in Brookside’s reply brief, but a party may 

not raise a new issue by way of a reply brief. Kinder Morgan Mich, LLC v City of Jackson, 277 

Mich App 159, 174; 744 NW2d 184 (2007). In addition, Brookside has not raised the issue of the 

prohibition of a responsive brief in its otherwise very comprehensive statement of questions 

presented for appeal. In Bouverette v Westinghouse Electric Corp, 245 Mich App 391, 404; 628 

NW2d 86 (2001), this Court stated that issues not set forth in the statements of questions presented 
-6-

III. VAGUENESS—PART 91

We review Brookside’s void-for-vagueness issue de novo. Dep’t of State Compliance & 

Rules Div v Mich Ed Ass’n-NEA, 251 Mich App 110, 115-116; 650 NW2d 120 (2002). 

MCL 324.9116 states: 

A person who owns land on which an earth change has been made that may 

result in or contribute to soil erosion or sedimentation of the waters of the state shall 

implement and maintain soil erosion and sedimentation control measures that will 

effectively reduce soil erosion or sedimentation from the land on which the earth 

change has been made.

Brookside takes issue with being fined for soil erosion and claims that the statute does not define 

“erosion.” But the Legislature did define the term “soil erosion.” “ ‘Soil erosion’ means the 

wearing away of land by the action of wind, water, gravity, or a combination of wind, water, or 

gravity.” MCL 324.9101(17).

In addition, Mich Admin Code, R 323.1709, states:

(1) A person shall design, construct, and complete an earth change in a 

manner that limits the exposed area of any disturbed land for the shortest possible 

period of time as determined by the county or local enforcing agency.

(2) A person shall remove sediment caused by accelerated soil erosion from 

runoff water before it leaves the site of the earth change.

(3) A person shall design a temporary or permanent control measure that 

is designed and constructed for the conveyance of water around, through, or from 

the earth change area to limit the water flow to a nonerosive velocity.

(4) A person shall install temporary soil erosion and sedimentation control 

measures before or upon commencement of the earth change activity and shall 

maintain the measures on a daily basis. A person shall remove temporary soil 

erosion and sedimentation control measures after permanent soil erosion measures 

are in place and the area is stabilized. A person shall stabilize the area with 

permanent soil erosion control measures under approved standards and 

specifications as prescribed by R 323.1710.

(5) A person shall complete permanent soil erosion control measures for all 

slopes, channels, ditches, or any disturbed land area within 5 calendar days after 

final grading or the final earth change has been completed. If it is not possible to 

permanently stabilize a disturbed area after an earth change has been completed or 

 

for appeal need not be addressed. We also decline to review certain Eighth-Amendment arguments 

raised by way of a reply brief. Kinder Morgan Mich, 277 Mich App at 174. 
-7-

if significant earth change activity ceases, then a person shall maintain temporary 

soil erosion and sedimentation control measures until permanent soil erosion 

control measures are in place and the area is stabilized. [Emphases added.] 

Mich Admin Code, R 323.1710, states:

A person shall complete all temporary and permanent erosion and 

sedimentation control measures according to the approved plan or operating 

procedures.

(1) A person shall install and maintain control measures in accordance with 

the standards and specifications of all of the following:

(a) The product manufacturer.

(b) The local conservation district.

(c) The department.

(d) The Michigan department of transportation.

(e) The enforcing agency, if applicable and formally adopted.

(2) If a conflict exists between the standards and specifications, then the 

enforcing agency or authorized public agency shall determine which specifications 

are appropriate for the project. [Emphasis added.]

Reading this statutory and administrative-rule language in conjunction with vagueness 

principles derived from caselaw leads to the conclusion that Brookside’s void-for-vagueness 

challenge is without merit.

First, as noted by EGLE, “[t]he degree of vagueness that the Constitution tolerates—as 

well as the relative importance of fair notice and fair enforcement—depends in part on the nature 

of the enactment. . . . The Court has . . . expressed greater tolerance of enactments with civil rather 

than criminal penalties because the consequences of imprecision are qualitatively less severe.”

11

 

Village of Hoffman Estates v Flipside, Hoffman Estates, Inc, 455 US 489, 498-499; 102 S Ct 1168; 

71 L Ed 2d 362 (1982), reh den 456 US 950 (1982), abrogated on other grounds by Johnson v 

United States, 576 US 591; 135 S Ct 2551; 192 L Ed 3d 569 (2015).12

Vagueness challenges are derived from due-process principles. US Const, Am XIV; Dep’t 

of State Compliance, 251 Mich App at 116. “To determine whether a statute is void for vagueness, 

 

11 There is an exception for deportation matters. See, generally, Sessions v Dimaya, ___ US ___; 

138 S Ct 1204; 200 L Ed 2d 549 (2018).

12 Johnson, 576 US at 602-603, disavowed the notion from Village of Hoffman Estates, 455 US at 

495, that a statute can be void for vagueness only if it is vague in all of its applications.
-8-

a court should examine the entire text of the statute and give the words of the statute their ordinary 

meanings.” Id. “A statute may qualify as void for vagueness if (1) it is overbroad and impinges 

on First Amendment freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) 

it gives the trier of fact unstructured and unlimited discretion in determining whether the statute 

has been violated.” Id. (citations and quotation marks omitted). “[A] statute must give a person 

of ordinary intelligence a reasonable opportunity to know what is prohibited or required.” Id. at 

117. It must be ensured “that individuals are not held responsible by the state for conduct that they 

could not reasonably understand to be proscribed.” Id. at 116. Prohibited conduct does not, 

however, need to be defined with “mathematical certainty.” Grievance Administrator v Fieger, 

476 Mich 231; 719 NW2d 123 (2006) (citation and quotation marks omitted).13 

“A vagueness challenge to a statute not based on First Amendment grounds must be 

reviewed on the basis of the particular facts of the case at issue.” People v Lawhorn, 320 Mich 

App 194, 199; 907 NW2d 832 (2017). “[A] defendant may not assert that a statute . . . reaches 

innocent conduct if the defendant’s conduct clearly falls within the language of the statute.” Id. 

A “defendant has standing to raise a vagueness challenge only if the statute is vague as applied to 

his conduct.” Id. at 200 (citation and quotation marks omitted). “[E]ven if a statute may be 

susceptible to impermissible interpretations, reversal is not required where the statute can be 

narrowly construed so as to render it sufficiently definite to avoid vagueness and where the 

defendant’s conduct falls within that prescribed by the properly construed statute.” Id. (citation 

and quotation marks omitted).

The problem with Brookside’s argument is that Brookside is ignoring the caselaw 

indicating that a vagueness challenge such as the one it is raising must be viewed in light of the 

facts at issue. Brookside contends 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, Susan Doty, 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. Smith spoke about “several inches of material 

[that] . . . had eroded into . . . the toe of slope.” Moreover, Rule 323.1710 states that “a person 

shall complete all temporary and permanent erosion and sedimentation control measures according 

to the approved plan or operating procedures.” (Emphasis added.) It is 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. Julia Stiles, a then-employee with 

the ECDC, affirmed this noncompliance for 2012. And the current ECDC testified that Brookside 

had “come a long way[]” but was still “out of compliance.” He stated that a report from October 

3, 2013, showed a lot of issues on the site and that Brookside was issued an ECDC violation notice 

for July 10, 2015. In addition, Mich Admin Code, R 323.1709(4), indicates that SESC measures 

are to be maintained on a daily basis. Brookside’s own expert witness, Cuthbert, admitted again 

and again to the failure to maintain SESC measures. It is also pertinent that Cuthbert admitted that 

 

13 This is contrary to Brookside’s argument in its reply brief that “exact” amounts of disallowed 

erosion or sedimentation must be defined by statute or rule.
-9-

SESC measures always need to be site-specific and that there are no “universal set of standards 

which are applicable to every site for sedimentation control and/or storm water control.”

While there might be a hypothetical case in which the statute and rules applicable to fines 

issued in conjunction with SESC measures are too vague to pass constitutional muster, this is not 

such a case. Brookside was well aware of the prohibited conduct and was not fined for arbitrary 

decisions by the enforcing agencies.

IV. INDIVIDUAL NPDES PERMIT

Brookside’s due-process challenge to the fines issued for the failure to have an individual 

NPDES permit is a constitutional issue subject to review de novo. See People v McGhee, 258 

Mich App 683, 699; 672 NW2d 191 (2003).

The sole authority Brookside cites in support of its appellate argument about due process 

is Dep’t of Natural Resources v Bayshore Assoc, Inc, 210 Mich App 71; 533 NW2d 593 (1995). 

In that case, this Court concluded that the Department of Natural Resources had failed to 

promulgate rules regarding the renewal of marina operating permits and that, therefore, denying 

such a permit would be a denial of due process. Id. at 83-85. The present case is not comparable.

MCL 324.3112(1) states that “[a] person shall not discharge any waste or waste effluent 

into the waters of this state unless the person is in possession of a valid permit from” EGLE.14 

“Waste” includes “[d]redged spoil” and “sand.” Mich Admin Code, R 323.2104(aa)(i) and (xiv). 

“Wastewater” involves the discharge of liquid waste. Mich Admin Code, R 323.2104(bb). A 

“state permit” is “a permit or equivalent document or requirements that are issued by the 

department to a discharger who discharges wastewater on the ground or into groundwaters.” Mich 

Admin Code, R 323.2104(s). A “national permit” is “an NPDES permit, or equivalent document 

or requirements, issued by” EGLE for discharges into surface waters. Mich Admin Code, R 

323.2103(p). The parties do not dispute that surface waters include wetlands. See Mich Admin 

Code, R 323.1044(u)(vii). Mich Admin Code, R 323.2161(b), specifically indicates that a national 

permit is to be sought for pertinent stormwater discharges from construction activity that disturbs 

five acres or more. Mich Admin Code, R 323.2190(1), indicates that an automatic permit-by-rule 

will exist if certain delineated conditions exist in connection with construction activity. For 

example, for construction activity that is undertaken by a private entity and that involves more 

than five acres, the permittee must file a notice of coverage that includes a valid SESC permit. 

Mich Admin Code, R 323.2190(1)(a)(i). However, this permit-by-rule is not applicable if EGLE 

“has required an individual national permit pursuant to the provisions of subrule (3) or (4) of this 

rule[.]” Mich Admin Code, R 323.2190(1). Rule 323.2190 states, in part:

(3) The department may require that discharges from a construction activity 

be authorized by an individual national permit if it has been determined by the 

department that unlawful pollution cannot be adequately guarded against, and there 

 

14 An amendment of this statute in 2018 did not affect the language at issue. 2018 PA 667.
-10-

is or may be water quality degradation that will violate the commission act[15]unless 

requirements in addition to those in the soil erosion and sedimentation control 

permit are imposed. A determination by the department for an individual national 

permit or other additional control constitutes grounds for revocation of the 

authorization to discharge pursuant to the provisions of this rule.

(4) The department may require that discharges from a construction activity 

be authorized by an individual national permit if it has been determined by the 

department that the responsible part 91 permitting entity or authorized public 

agency is not carrying out a program that is adequate to ensure that the requirements 

of part 91 of the act are complied with.

Clearly, EGLE has the authority to request an individual NPDES permit.

In addition, there are rules in place regarding the application for such a permit. Mich 

Admin Code, R 323.2108(1), indicates that an application for a wastewater discharge permit “shall 

be completed in accordance with and subject to guidelines in 40 C.F.R. §122.21 (2005),” which 

deals with requirements for NPDES permit applications. An individual NPDES permit falls under 

the broad umbrella of a wastewater-discharge permit. In addition, Mich Admin Code, R 

323.2189(2)(d), adopts 40 CFR 122.26 (2000). 40 CFR 122.26 (2000) includes a description of 

needed information for permitting, in general, for construction projects. See 40 CFR 

122.26(c)(1)(ii) (2000), 40 CFR 122.26(b)(14)(x) (2000), and 40 CFR 122.26(b)(15) (2000). Also, 

and significantly, 40 CFR 122.26(c)(1) (2000) speaks specifically about individual permits 

needing to conform to 40 CFR 122.21. Brookside is mistaken in arguing that no rules were in 

place regarding the application for an individual permit. Brookside contends that at trial, Doty 

could not identify the applicable rules, but Doty is not a lawyer. The present case is simply not 

analogous to the Bayshore case because applicable rules existed. 

EGLE informed Brookside of the information needed for its application. Brookside 

appears to be arguing that EGLE acted arbitrarily in requesting certain specific information in 

connection with the application for an individual permit. We note, however, that a “general 

permit” is “a national permit issued authorizing a category of similar discharges.” Mich Admin 

Code, R 323.2103(a). By contrast, MCL 324.3118, dealing with fees for stormwater discharge 

permits, states that an “individual permit” is a “site-specific permit.” MCL 324.3118(13)(g). In 

addition, Mich Admin Code, R 323.2112, states:

(1) The department, at its discretion or upon request of the regional 

administrator, may request of an applicant any additional information deemed 

necessary to complete or correct deficiencies in the application before processing 

the application or issuing or denying the issuance of a permit. A national permit or 

state permit shall not be issued by the department until an application is complete

or any further information requested by the department is supplied.

 

15 This is evidently a reference to the predecessor of the NREPA.
-11-

(2) The department shall take proper enforcement action as prescribed by 

part 31 of the act against any person who fails to file a complete application, if 

deficiencies are not corrected or incomplete information is not supplied within 60 

days to the department following its request by the applicant. [Emphases added.]

In light of the site-specific nature of an individual permit and in light of Rule 323.2112, EGLE 

was within its rights to request additional information from Brookside. Brookside seems to be 

implying that EGLE must have a rule designating exactly what information must be supplied in 

applications for individual permits, but this makes no practical sense in light of the site-specific 

nature of individual permits.

As for the second part of Brookside’s argument—that there were no rules for governing 

when an individual permit would be issued or denied—this issue is not ripe for appellate review. 

EGLE never decided whether to issue the individual permit because Brookside failed to supply the 

requested information. The ripeness doctrine prevents review of a hypothetical claim before an 

actual injury occurs. People v Robar, 321 Mich App 106, 128; 910 NW2d 328 (2017). This Court 

would only be able to guess whether EGLE, had it received the requested information from 

Brookside, would have denied the individual permit and on what basis.16

V. ENFORCEMENT OF SETTLEMENT AGREEMENT

Brookside contends that EGLE’s motion to enforce the SA was being adjudicated as a 

motion for summary disposition and that the court improperly failed to view the evidence in the 

light most favorable to Brookside and improperly failed to set the matter for a full evidentiary 

hearing. The entire premise of Brookside’s argument is faulty, however, because EGLE’s motion 

was not a motion for summary disposition. The motion filed by EGLE on which the trial court 

was ruling was a motion to enforce the SA. In approving the settlement agreement, the court had 

stated, in part: 

3. The [c]ourt retains jurisdiction to enforce the Settlement Agreement; any 

request for enforcement . . . may be brought by post-judgment motion, properly 

filed, briefed and noticed in accordance with MCR 2.116, as if Motions for 

Summary Disposition[.] 

And at the motion hearing regarding enforcement of the SA, the court stated:

This is the date and time set for the plaintiff’s motion to enforce the 

settlement agreement. Now, I should note that there have been other pleadings 

filed. The pleadings that have been filed are not in compliance with the [c]ourt’s 

order. However, the—I do have and am considering the response by Brookside on 

how to—the response to the motion to enforce. There was [sic] other motions that 

have been filed, and there have been, I think, even responses.

 

16 We note, at any rate, that Rule 323.2190 provides guidance regarding the ends to be achieved 

with the individual permit.
-12-

I was very clear in my terms of how motions were to be treated. The [c]ourt 

has the discretion to do that. And the reason I exercise my discretion in this case is 

because this is a complicated, factual subject matter. It is also a subject matter 

that’s not dealt with on a routine basis. So, in order for the Court to be fully 

prepared, I impose the time limits pursuant to MCR 2.116, which are the time limits 

for the motion [sic] for summary disposition. That . . . was in my order of . . . 

December 1st, where the [c]ourt specifically said that any motions to . . . enforce 

the agreement needed to comply with the time restrictions for the motion [sic] for 

summary disposition.

It is clear from the record that the court was imposing the time limits applicable to motions 

for summary disposition, not ordering that motions to enforce the SA would be adjudicated as 

motions for summary disposition. And indeed, the parties did not file briefs styled as motions for 

summary disposition. Brookside points out that the court, at one point during the motion hearing, 

referred to a genuine issue of fact. The court stated, “If you felt [certain] affidavits were false, you 

should have gotten a competing affidavit, and then we would have a genuine issue of fact.” This 

bare statement by the court did not somehow transform EGLE’s motion to enforce the SA into a 

motion for summary disposition. Neither the court’s ultimate oral ruling nor its written order 

referred to the standards for a summary-disposition motion. It is evident from the transcript as a 

whole that the hearing on May 3, 2019, was the very evidentiary hearing that Brookside now claims 

was required and that the trial court was ruling whether to grant EGLE’s motion to enforce the SA 

on the basis of the evidence presented.

The upshot is that Brookside’s primary argument on appeal is inapposite. The court’s 

decision, at any rate, was adequately supported by the evidence. A trial court’s decision to enforce 

a settlement agreement is reviewed for an abuse of discretion, see Groulx v Carlson, 176 Mich 

App 484, 493; 440 NW2d 644 (1989), and a trial court’s factual findings are reviewed for clear 

error, King v Michigan, 488 Mich 208, 213; 793 NW2d 673 (2010). The court’s decision to grant 

EGLE’s motion was not an abuse of discretion and its factual findings were not clearly erroneous.

Brookside argues that EGLE’s motion should not have been granted because EGLE 

interfered with SESC permitting and breached the SA when Doty responded to a request by Jessica 

Larkin, an ECDC employee, for assistance by raising some issues with regard to Part 91 

compliance. The trial court disagreed that this constituted a breach of the SA and found the 

argument “totally without merit.”

The SA provided, in part:

4. The parties desire to resolve [EGLE’s] remaining claims for injunctive 

relief, and hereby agree that the terms of this Agreement are appropriate and 

adequately address the environmental concerns at the Site requiring injunctive 

relief.

* * *

6. Brookside agrees to commence implementation of the 2017 Stabilization 

Plan designed by its engineers, Wolverine Engineers and Surveyors, Inc., not later 
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than thirty (30) days after the issuance of the Required Permits referenced in 

paragraph 7, below. . . . [EGLE] agrees to the 2017 Stabilization Plan, and agrees 

to take no action to hinder, delay or prevent Brookside from completing the 2017 

Stabilization Plan. . . . In consideration of the agreement to implement the 2017 

Stabilization Plan and to resolve the injunctive issues in this litigation, [EGLE] 

agrees to conduct inspections of the ongoing 2017 Stabilization Plan work not more 

than twice per month, and shall provide at least 24 hours email notice . . . . 

7. This Agreement is contingent upon the issuance of necessary Part 91 

SESC permits that must be approved by the [ECDC] . . . . Brookside will within 

twenty (20) days of the effective date of this Agreement submit a good faith

application, meeting legal requirements for such SESC permits to the ECDC . . . . 

[EGLE] . . . agrees to take no action to persuade or cause that any other parties 

require Brookside to obtain additional permits . . . . 

8. Brookside agrees to permanently stabilize the Site within one (1) year of 

the issuance of all of the Required Permits. . . .

9. Once Brookside properly completes all items required by the 2017 

Stabilization Plan, it will be entitled to have [EGLE] “close out” the Site. . . .

10. Brookside will refrain from the deposition of any additional material 

that would elevate the identified final grade, except as provided in the 2017 

Stabilization Plan, or non-material changes as reasonably approved by the ECDC. 

[EGLE] agrees it will not unduly attempt to influence or interfere with the ECDC’s 

issuance and/or administration of the Part 91 SESC permit referenced in this 

Agreement. The parties expressly acknowledge that, by law, [EGLE] oversees the 

ECDC as a county enforcement agency under Part 91 of the NREPA. As such, the 

parties acknowledge that the agencies communicate with one another as a practical 

matter of course of this regulatory oversight.

* * *

18. This Agreement in no way waives Brookside’s responsibility to comply 

with any other state or local laws and regulatory requirements associated with its 

construction activities at the Site, other than those which are the subject of this 

Agreement or were the subject of the lawsuit by [EGLE] . . . . [Emphases added.]

The SA expressly contemplated that the application for an SESC permit needed to meet all 

legal requirements for such a permit. Importantly, Brookside itself admits that even though it 

submitted the stabilization plan derived from the SA to the ECDC in January 2018, the ECDC, 

before any contact with Doty, required changes to the plan. Indeed, Larkin averred that the SESC 

plan submitted with the January 8, 2018 application was deficient because it mislabeled certain 

drains as county drains and because the ECDC was requiring more mulch blankets. Brookside did 

not and does not take issue with this initial denial of the application. The importance of this 

sequence of events is that Brookside itself acknowledges that the ECDC could exercise its 

authority to determine whether the plan submitted with the permit application was sufficient under 
-14-

applicable laws—and it found it insufficient before any feedback from Doty. The ECDC was not 

bound to accept the stabilization plan from the SA and automatically issue an SESC permit after 

viewing the plan.17 

Larkin averred that in May 2018, the ECDC again found deficiencies and only then asked 

for feedback from EGLE. As noted, the SA stated that EGLE “will not unduly attempt to influence 

or interfere with the ECDC’s issuance and/or administration of the Part 91 SESC permit referenced 

in this Agreement.” But it immediately went on to state, “The parties expressly acknowledge that, 

by law, [EGLE] oversees the ECDC as a county enforcement agency under Part 91 of the NREPA. 

As such, the parties acknowledge that the agencies communicate with one another as a practical 

matter of course of this regulatory oversight.” That Doty gave opinions about Part 91 compliance 

in response to a direct request for regulatory oversight from the ECDC does not clearly evidence 

an attempt to unduly interfere with the issuance of a permit, when viewed in light of Larkin’s and 

another ECDC employee’s express indications that the subsequent denial of the permit was based 

on noncompliance with applicable law, and in light of the SA’s requirement that Part 91 

compliance was necessary. In the review sheet she issued to Larkin, Doty used a one-page, 

standard form addressing Part 91 and the relevant requirements set forth in Mich Admin Code, R 

323.1703; she used matter-of-fact language about possible areas of noncompliance; many of her 

comments were actually questions, or were related to merely needing more written explanations 

on the plan; and she did not give any indication that she wished for the ECDC to deny the SESC 

permit.18 In addition, it is not disputed that Brookside thereafter attempted to implement various 

changes on the site that were materially not in conformance with the SA, such as the addition of 

sediment ponds. Given all these circumstances, the court did not abuse its discretion or commit 

clear error19 by finding that EGLE did not breach the SA and by ordering that the SA be enforced. 

EGLE agreed to settle the claims for injunctive relief and agreed to a stabilization plan that it found 

acceptable, but it also could not ignore its obligation to exercise some amount of Part 91 regulatory 

oversight as requested by the ECDC. Instead of simply implementing the changes requested by 

the ECDC20 in order to obtain a valid permit in connection with the agreed-upon stabilization plan, 

Brookside ended up attempting to alter, unilaterally, material aspects of the stabilization plan. 

Brookside places considerable emphasis on two e-mails, one from the ECDC attorney and 

one from Larkin, and argues that the trial court erroneously failed to take them into consideration. 

However, all Larkin said in her e-mail was that she was attaching the review sheet from Doty—

 

17 And contrary to Brookside’s implication, that the court referred to the SA as conforming with 

applicable law does not mean that Part 91 was fully complied with by virtue of the stabilization 

plan. Once again, the SA itself contemplated that the ECDC might have additional legal 

requirements.

18 The later denial letter—which was issued after an independent review by an outside contractor—

included issues beyond those identified by Doty.

19 The standards of review must be kept in mind. In other words, the court’s conclusions are 

accorded a certain amount of deference.

20 As noted by EGLE, the requested changes did not require a change in the scope of Brookside’s 

work.
-15-

and the trial court considered this review sheet and found that it was an example of EGLE’s 

allowed oversight powers as contemplated by the SA. Larkin’s e-mail adds nothing to the existing 

evidence. The ECDC attorney stated in her e-mail: “It is my understanding that the plans were 

never approved by the Drain Commission. The person at [EGLE] that has raised issues with the 

plan is Susan Doty. I am asking that Jessica Larkin forward to you her comment sheet.” Once 

again, the trial court was well aware that Doty had submitted a comment sheet to Larkin. It is 

unclear why Brookside is placing so much importance on these e-mails when they simply do not 

add anything to the evidence presented. The court concluded that Doty, in the course of regulatory 

oversight, made some comments in response to Larkin’s request, that the permit was denied 

because of Brookside’s failure to comply with applicable law, and that Doty did not act in bad 

faith or breach the SA. The court acted within its discretion in reaching this conclusion, and its 

factual findings were not clearly erroneous in light of the record. 

Brookside contends that the court should not have granted EGLE’s motion because EGLE 

had unclean hands. The doctrine of unclean hands indicates that equity will not be granted to “one 

tainted with inequitableness or bad faith relative to the matter in which he seeks relief[.]” 

McFerren v B & B Investment Group, 253 Mich App 517, 522; 655 NW2d 779 (2002) (quotation 

marks and citations omitted). Although a court’s factual findings are reviewed for clear error, 

matters of equity are reviewed de novo. See McDonald v Farm Bureau Ins Co, 480 Mich 191, 

197; 747 NW2d 811 (2008).

Brookside contends that Doty interfered with the ECDC permitting process and that even 

if the breach of contract by Doty were to be deemed minor, it nevertheless amounted to unclean 

hands on the part of EGLE. However, the trial court found that the claim of breach was “totally

without merit,” and as discussed, the court did not err by making this finding. In addition, even 

assuming, arguendo, that EGLE breached the SA, it is simply not in dispute that Brookside 

breached the SA first by missing, by approximately 18 days, the deadline in the SA for submitting 

an SESC permit application. As stated in Attorney General v PowerPick Club, 287 Mich App 13, 

53; 783 NW2d 515 (2010), “[a] defendant with unclean hands may not defend on the ground that 

the plaintiff has unclean hands as well.” Brookside, as noted, concedes that even minor breaches 

are enough to dirty a litigant’s hands.21 In light of PowerPick Club, the trial court properly rejected 

Brookside’s unclean-hands argument.

We affirm in both appeals.

/s/ Cynthia Diane Stephens

/s/ David H. Sawyer

/s/ Jane M. Beckering

 

21 Moreover, it is not apparent that this breach was minor, given Brookside’s continual and ongoing 

Part 91 violations. As noted by the trial court, it was another sign of Brookside’s continual evasion 

of its obligations.