SB-0785, As Passed House, October 1, 2009

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 785

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 1301, 30105, 30301, 30303, 30306, 30306b,

30311, 30312, 30317, 32512a, and 32513 (MCL 324.1301, 324.30105,

324.30301, 324.30303, 324.30306, 324.30306b, 324.30311, 324.30312,

324.30317, 324.32512a, and 324.32513), section 1301 as amended by

2008 PA 18, section 30105 as amended by 2006 PA 531, sections

30301, 30306, and 30312 as amended and section 32512a as added by

2003 PA 14, sections 30303 and 30311 as added by 1995 PA 59,

section 30306b as added by 2006 PA 435, section 30317 as amended by

1998 PA 228, and section 32513 as amended by 2008 PA 276, and by

adding sections 30303b, 30303d, 30304b, 30305b, 30311a, 30311b,

30311d, 30312b, 30312d, 30325, 30327, and 30329; and to repeal acts

and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1301. As used in this part:

(a) "Application period" means the period beginning when an

application for a permit is received by the state and ending when

the application is considered to be administratively complete under

section 1305 and any applicable fee has been paid.

(b) "Department" means the department, agency, or officer

authorized by this act to approve or deny an application for a

particular permit.

authorized under this act to approve or deny an application for a

particular permit or the director's designee.

(d) "Permit" means a permit or operating license required by

any of the following sections or by rules promulgated thereunder,

or, in the case of section 9112, by an ordinance or resolution

adopted thereunder:

(i) Section 3104, floodplain alteration permit.

(ii) Section 3503, permit for use of water in mining iron ore.

(iii) Section 4105, sewerage system construction permit.

(iv) Section 6516, vehicle testing license.

(v) Section 6521, motor vehicle fleet testing permit.

(vi) Section 8310, restricted use pesticide dealer license.

(vii) Section 8310a, agricultural pesticide dealer license.

(viii) Section 8504, license to manufacture or distribute

fertilizer.

(ix) Section 9112, local soil erosion and sedimentation control

permit.

(x) Section 11509, solid waste disposal area construction

permit.

(xi) Section 11512, solid waste disposal area operating

license.

(xii) Section 11542, municipal solid waste incinerator ash

landfill operating license amendment.

(xiii) Section 11702, septage waste servicing license or septage

waste vehicle license.

(xiv) Section 11709, septage waste site permit.

(xv) Section 30104, inland lakes and streams project permit.

(xvi) Section 30304, state permit for dredging, filling, or

other activity in wetland. Permit includes an authorization for a

specific project to proceed under a general permit issued under

section 30312.

(xvii) Section 31509, dam construction, repair, removal permit.

(xviii) Section 32312, flood risk, high risk, or environmental

area permit.

(xix) Section 32503, permit for dredging and filling

bottomland.

(xx) Section 35304, department permit for critical dune area

use.

(xxi) Section 36505, endangered species permit.

(xxii) Section 41702, game bird hunting preserve license.

(xxiii) Section 42101, dog training area permit.

(xxiv) Section 42501, fur dealer's license.

(xxv) Section 42702, game dealer's license.

(xxvi) Section 44513, charter boat operating permit under

reciprocal agreement.

(xxvii) Section 44517, boat livery operating permit.

(xxviii) Section 45503, permit to take frogs for scientific use.

(xxix) Section 45902, game fish propagation license.

(xxx) Section 45906, game fish import license.

(xxxi) Section 61525, oil or gas well drilling permit.

(xxxii) Section 62509, brine, storage, or waste disposal well

drilling or conversion permit or test well drilling permit.

(xxxiii) Section 63103a, metallic mineral mining permit.

(xxxiv) Section 63514 or 63525, surface coal mining and

reclamation permit or revision of the permit during the term of the

permit, respectively.

(xxxv) Section 63704, sand dune mining permit.

(xxxvi) Section 72108, use permits for Michigan trailway.

(xxxvii) Section 76109, sunken aircraft or watercraft abandoned

property recovery permit.

(xxxviii) Section 76504, Mackinac Island motor vehicle and land

use permits.

(xxxix) Section 80159, buoy or beacon permit.

(e) "Processing deadline" means the last day of the processing

period.

(f) "Processing period" means the following time period after

the close of the application period, for the following permit, as

applicable:

(i) Twenty days for a permit under section 61525 or 62509.

(ii) Thirty days for a permit under section 9112.

(iii) Thirty days after the department consults with the

underwater salvage and preserve committee created under section

76103, for a permit under section 76109.

(iv) Sixty days, for a permit under section 30104 for a minor

project as established by rule under section 30105(7) or for a

permit under section 32312.

(v) Sixty days or, if a hearing is held, 90 days for a permit

under section 35304.

(vi) Sixty days or, if a hearing is held, 120 days for a permit

under section 30104, other than a permit for a minor project as

established by rule under section 30105(7), or for a permit under

section 31509.

(vii) Ninety days for a permit under section 11512, a revision

of a surface coal mining and reclamation permit during the term of

the permit under section 63525, or a permit under section 72108.

(viii) Ninety days or, if a hearing is held, 150 days for a

permit under section 3104, 30304, or 32503 or an authorization for

a specific project to proceed under a general permit issued under

section 30312.

(ix) One hundred and twenty days for a permit under section

11509, 11542, 63103a, 63514, or 63704.

(x) One hundred fifty days for a permit under section 36505.

However, if a site inspection or federal approval is required, the

150-day period is tolled pending completion of the inspection or

receipt of the federal approval.

(xi) For any other permit, 150 days or, if a hearing is held,

90 days after the hearing, whichever is later.

Sec. 30105. (1) The department shall post on its website all

of the following under this part:

(a) A list of pending applications.

(b) Public notices.

(2) The department may hold a public hearing on pending

applications.

(3) Except as otherwise provided in this section, upon

receiving an application, the department shall submit copies for

review to the director of the department of community health or the

local health department designated by the director of the

department of community health, to the city, village, or township

and the county where the project is to be located, to the local

conservation district, to the watershed council established under

part 311, if any, to the local port commission, if any, and to the

persons required to be included in the application pursuant to

section 30104(1). Each copy of the application shall be accompanied

by a statement that unless a written request is filed with the

department within 20 days after the submission for review, the

department may grant the application without a public hearing where

the project is located. The department may hold a public hearing

upon the written request of the applicant or a riparian owner or a

person or governmental unit that is entitled to receive a copy of

the application pursuant to this subsection.

(4) After completion of a project for which an application is

approved, the department may cause a final inspection to be made

and certify to the applicant that the applicant has complied with

the department's permit requirements.

(5) At least 10 days' notice of a hearing to be held under

this section shall be given by publication in a newspaper

circulated in the county where the project is to be located, to the

person requesting the hearing, and to the persons and governmental

units that are entitled to receive a copy of the application

pursuant to subsection (3).

(6) In an emergency, the department may issue a conditional

permit before the expiration of the 20-day period referred to in

subsection (3).

(7) ~~The~~ After providing notice and an opportunity for a public

hearing, the department ~~, by rule, may~~ shall establish minor

project categories of activities and projects that are similar in

nature, ~~and~~ have minimal adverse environmental ~~impact~~ effects when

performed separately, and will have only minimal cumulative adverse

effects on the environment. The department may act upon an

application received pursuant to section 30104 for an activity or

project within a minor project category without providing notices

~~or holding a public hearing~~ pursuant to subsection (3). ~~A final~~

~~inspection or certification of a project completed under a permit~~

~~granted pursuant to this subsection is not required, but all~~ All

other provisions of this part, except provisions applicable only to

general permits, are applicable to a minor project.

(8) The department, after notice and an opportunity for a

public hearing, ~~may~~ shall issue general permits on a statewide

basis or within a local unit of government for projects that are

similar in nature, that will cause only minimal adverse

environmental ~~impacts~~ effects when performed separately, and that

will only have minimal cumulative adverse ~~impact~~ effects on the

environment. Before authorizing a specific project to proceed under

a general permit, the department may provide notice pursuant to

subsection (3) but shall not hold a public hearing and shall not

typically require a site inspection. A general permit issued under

this subsection shall not be valid for more than 5 years. Among the

activities the department may consider for general permit

eligibility under this subsection are the following:

(a) The removal of qualifying small dams.

(b) The maintenance or repair of an existing pipeline, if the

pipeline is maintained or repaired in a manner to ~~assure~~ ensure

that any adverse ~~impact~~ effects on the lake or stream will be

minimized.

(9) The department may issue, deny, or impose conditions on

project activities authorized under a minor project category or a

general permit if the conditions are designed to remove an

impairment to the lake or stream, to mitigate the ~~impact~~ effects of

the project, or to otherwise improve water quality. The department

may also establish a reasonable time when the proposed project is

to be completed or terminated.

(10) If the department determines that activity in a proposed

project, although within a minor project category or a general

permit, is likely to cause more than minimal adverse environmental

~~impacts~~ effects, the department may require that the application be

processed according to subsection (3) and reviewed for compliance

with section 30106.

(11) As used in this section, "qualifying small dam" means a

dam that meets all of the following conditions:

(a) The height of the dam is less than 2 feet.

(b) The impoundment from the dam covers less than 2 acres.

Great Lakes or their connecting waterways.

(d) The dam is not serving as a sea lamprey barrier.

(e) There are no threatened or endangered species that have

been identified in the area that will be ~~impacted~~ affected by the

project.

(f) There are no known areas of contaminated sediments in the

area that will be ~~impacted~~ affected by the project.

(g) The department has received written permission for the

removal of the dam from all riparian property owners adjacent to

the dam's impoundment.

Sec. 30301. (1) As used in this part:

(a) "Beach" means the area landward of the shoreline of the

Great Lakes as the term shoreline is defined in section 32301.

(b) "Beach maintenance activities" means any of the following

in the area of Great Lakes bottomlands lying below the ordinary

high-water mark and above the water's edge:

(i) Manual or mechanized leveling of sand.

(ii) Mowing of vegetation.

(iii) Manual de minimis removal of vegetation.

(iv) Grooming of soil.

(v) Construction and maintenance of a path.

section 30329.

(d) ~~(c)~~ "Debris" means animal or fish carcasses, zebra mussel

shells, dead vegetation, trash, and discarded materials of human-

made origin.

(e) ~~(d)~~ "Department" means the department of environmental

quality.

(f) ~~(e)~~ "Director" means the director of the department.

(g) "Environmental area" means an environmental area as

defined in section 32301.

(h) "Exceptional wetland" means wetland that provides physical

or biological functions essential to the natural resources of the

state and that may be lost or degraded if not preserved through an

approved site protection and management plan for the purposes of

providing compensatory wetland mitigation.

(i) ~~(f)~~ "Fill material" means soil, rocks, sand, waste of any

kind, or any other material that displaces soil or water or reduces

water retention potential.

~~(g) "Environmental area" means an environmental area as~~

~~defined in section 32301.~~

(j) ~~(h)~~ "Grooming of soil" means raking or dragging, pushing,

or pulling metal teeth through the top 4 inches of soil without

disturbance of or destruction to plant roots, for the purpose of

removing debris.

(k) "Landscape level wetland assessment" means the use of

aerial photographs, maps, and other remotely sensed information to

predict and evaluate wetland characteristics and functions in the

context of all of the following:

(i) The wetland's landscape position and hydrologic

characteristics.

(ii) The surrounding landscape.

(iii) The historic extent and condition of the wetland.

(l) ~~(i)~~ "Leveling of sand" means the relocation of sand within

areas being leveled that are predominantly free of vegetation,

including the redistribution, grading, and spreading of sand that

has been deposited through wind or wave action onto upland riparian

property.

(m) ~~(j)~~ "Minor drainage" includes ditching and tiling for the

removal of excess soil moisture incidental to the planting,

cultivating, protecting, or harvesting of crops or improving the

productivity of land in established use for agriculture,

horticulture, silviculture, or lumbering.

(n) ~~(k)~~ "Mowing of vegetation" means the cutting of vegetation

to a height of not less than 2 inches, without disturbance of soil

or plant roots.

(o) "Nationwide permit" means a nationwide permit issued by

the United States army corps of engineers under 72 FR 11091 to

11198 (March 12, 2007), including all general conditions, regional

conditions, and conditions imposed by this state pursuant to a

water quality certification under section 401 of title IV of the

federal water pollution control act, 33 USC 1341, or a coastal zone

management consistency determination under section 307 of the

coastal zone management act of 1972, 16 USC 1456.

(p) (l) "Ordinary high-water mark" means ~~that term as it is~~

~~defined~~ the ordinary high-water mark as specified in section 32502.

(q) ~~(m)~~ "Path" means a temporary access walkway from ~~the~~

upland riparian property directly to the shoreline across swales

with standing water, not exceeding 6 feet in bottom width and

consisting of sand and pebbles obtained from ~~the~~ exposed,

nonvegetated bottomlands or from the upland riparian property.

(r) ~~(n)~~ "Person" means an individual, sole proprietorship,

partnership, corporation, association, municipality, this state, an

instrumentality or agency of this state, the federal government, an

instrumentality or agency of the federal government, or other legal

entity.

(s) "Rapid wetland assessment" means a method for generally

assessing the functions, values, and condition of individual

wetlands based on existing data and field indicators.

(t) "Rare and imperiled wetland" means any of the following:

(i) Great Lakes marsh.

(ii) Southern wet meadow.

(iii) Inland salt marsh.

(iv) Intermittent wetland or boggy seepage wetland.

(v) Coastal plain marsh.

(vi) Interdunal wetland.

(vii) Lakeplain wet prairie.

(viii) Lakeplain wet-mesic prairie.

(ix) Northern wet-mesic prairie.

(x) Wet-mesic prairie.

(xi) Wet prairie.

(xii) Prairie fen.

(xiii) Northern fen.

(xiv) Patterned fen.

(xv) Poor fen.

(xvi) Muskeg.

(xvii) Rich conifer swamp.

(xviii) Relict conifer swamp.

(xix) Hardwood-conifer swamp.

(xx) Northern swamp.

(xxi) Southern swamp.

(xxii) Southern floodplain forest.

(xxiii) Inundated shrub swamp.

(u) ~~(o)~~ "Removal of vegetation" means the manual or mechanized

removal of vegetation, other than the manual de minimis removal of

vegetation.

(v) "Water dependent" means requiring access or proximity to

or siting within an aquatic site to fulfill its basic purpose.

(w) ~~(p)~~ "Wetland" means land characterized by the presence of

water at a frequency and duration sufficient to support, and that

under normal circumstances does support, wetland vegetation or

aquatic life, and is commonly referred to as a bog, swamp, or

marsh, and which is any of the following:

(i) Contiguous to the Great Lakes or Lake St. Clair, an inland

lake or pond, or a river or stream.

(ii) Not contiguous to the Great Lakes, an inland lake or pond,

or a river or stream; and more than 5 acres in size. ~~; except this~~

~~subparagraph shall not be of effect, except for the purpose of~~

~~inventorying, in counties of less than 100,000 population until the~~

~~department certifies to the commission it has substantially~~

~~completed its inventory of wetlands in that county.~~

(iii) Not contiguous to the Great Lakes, an inland lake or pond,

or a river or stream; and 5 acres or less in size if the department

determines that protection of the area is essential to the

preservation of the natural resources of the state from pollution,

impairment, or destruction and the department has so notified the

owner. ~~; except this subparagraph may be utilized regardless of~~

~~wetland size in a county in which subparagraph (~~ii~~) is of no effect;~~

~~except for the purpose of inventorying, at the time.~~

(2) The department and local units of government shall apply

the technical wetland delineation standards set forth in the U.S.

army corps of engineers January 1987 wetland delineation manual,

technical report Y-87-1, and appropriate regional U.S. army corps

of engineers supplements, in identifying wetland boundaries under

this part, including, but not limited to, section 30307.

Sec. 30303. (1) The department may enter into an agreement to

make contracts with the federal government, other state agencies,

local units of government, private agencies, or persons for the

purposes of making studies for the efficient preservation,

management, protection, and use of wetland resources. A study shall

be available as a public record for distribution at cost as

provided in section 4 of the freedom of information act, ~~Act No.~~

~~442 of the Public Acts of 1976, being section 15.234 of the~~

~~Michigan Compiled Laws~~ 1976 PA 442, MCL 15.234.

(2) Within 180 days after the effective date of the 2009

amendatory act that added this subsection, the commission of

agriculture in consultation with the department of environmental

quality shall identify at least 2,500 acres of land suitable for

cranberry production activities. Priority shall be given to upland

sites, sites that have been drained for agricultural use and are no

longer wetland, and sites that have been drained for agricultural

use and continue to be wetland. The department and the department

of agriculture shall make available to the public a map of the

areas identified as provided in this section. The map is for

informational purposes and does not constitute a regulatory

determination for purposes of this part.

(3) After 2,000 acres of sites identified under subsection (2)

have been developed for cranberry production activities, at least

an additional 2,500 acres shall be identified as provided in

subsection (2).

Sec. 30303b. (1) The department shall implement a pilot

program to facilitate the role of local units of government,

conservation districts, nonprofit organizations, and wetland

professionals in assisting persons seeking such assistance with

completing permit applications, avoiding and minimizing impacts

from a proposed project, using best management practices in a

proposed project, and otherwise complying with this part. The goals

of the pilot program include increasing the efficiency of the

permitting process through better utilization of all available

resources, including department staff, while protecting the wetland

of this state. The pilot program shall not affect the department's

authority to make regulatory decisions in any way.

(2) Within 60 days after the effective date of the amendatory

act that added this section, the director shall designate at least

3 entities to participate in the pilot program, with the goal of

selecting at least 1 local unit of government, 1 conservation

district, and 1 nonprofit organization. A proposed designation

under this subsection shall be posted on the department's website

for public review and comment for at least 21 days before the

designation is made.

(3) By April 1, 2012, the department and entities

participating in the program under subsection (2) shall report to

the council on program results and recommendations for further

refining the program.

(4) This section is repealed effective October 1, 2012.

Sec. 30303d. (1) The department shall implement a pilot

program for assisting local units of government and partnering

individuals or entities in the development of wetland mitigation

banks. This assistance shall include, but not be limited to,

supplying maps of potential wetland restoration areas for site

selection, reviewing potential sites for mitigation banks, and, if

the mitigation bank sponsor is a county with a population of

500,000 or more, expediting review of conceptual design plans.

(2) Within 180 days after the effective date of the amendatory

act that added this section, the director shall designate 2

counties with a population of 500,000 or more. Those counties, or

municipalities and partnering individuals or entities in those

counties, are eligible to participate in the pilot program. A

proposed designation under this subsection shall be posted on the

department's website for at least 21 days before the designation is

made, for public review and comment.

(3) By April 1, 2012, the department and entities

participating in the program under subsection (2) shall report to

the council on program results and recommendations for further

refining the program.

(4) This section is repealed effective October 1, 2012.

Sec. 30304b. (1) The department shall pursue an agreement with

the United States army corps of engineers for the corps to issue

state programmatic general permits under section 404(e) of title IV

of the federal water pollution control act, 33 USC 1344, for

activities regulated under this part in waters over which the corps

retains jurisdiction under section 404(g)(1) of title IV of the

federal water pollution control act, 33 USC 1344.

(2) This subsection applies beginning January 1, 2011. This

subsection applies to an application for a permit under this part

only if the application is for an activity or use in waters over

which the corps retains jurisdiction under section 404(g)(1) of

title IV of the federal water pollution control act, 33 USC 1344,

and if the corps has not issued a state programmatic general permit

for the activity or use. In such a case, if requested by the

applicant in the application, all of the following apply:

(a) The department shall approve or deny the application for a

permit under this part not more than 30 days after the corps grants

or denies an application for a permit for the project under section

404(a) of title IV of the federal water pollution control act, 33

USC 1344, or by the end of the processing period otherwise provided

for in section 1301, whichever is later. If a project proposed in a

permit application processed under this subsection also requires

authorization under 1 or more of parts 31, 301, 315, 323, 325, or

353, the requirements of this subdivision also apply to the

department's decision under that part or parts.

(b) Subject to subsection (3), if the corps grants a permit

for the project, the department shall grant a permit under this

part without conditions or limitations other than those imposed by

the corps unless any of the following apply:

(i) The wetland is a rare and imperiled wetland.

(ii) The wetland is regionally significant for the protection

of fisheries, wildlife, or migratory birds.

(iii) The site is described in section 30309(a), (e), or (g).

(iv) The proposed project involves a use or activity not

regulated under section 404(a) of title IV of the federal water

pollution control act, 33 USC 1344.

(3) The department shall inform the applicant in writing of

the basis for a finding that the requirements of subsection

(2)(b)(i), (ii), (iii), or (iv) are met and the specific reasons why

denial of the permit or the imposition of additional conditions or

limitations on the permit is consistent with this part and rules

promulgated under this part.

(4) Subsections (2)(b) and (3) apply only to the department’s

decision under this part notwithstanding that the project proposed

in the application also requires authorization under 1 or more of

parts 31, 301, 315, 323, 325, and 353.

Sec. 30305b. (1) The department shall consider construction of

cranberry beds, including associated dikes and water control

structures associated with dikes, such as headgates, weirs, and

drop inlet structures, to be a water dependent activity.

(2) The following activities associated with cranberry

operations are not considered to be water dependent:

(a) The construction of roads, ditches, reservoirs, and pump

houses that are used during the cultivation of cranberries.

(b) The construction of secondary support facilities for

shipping, storage, packaging, parking, and similar purposes.

(3) The demonstration by an applicant under section 30311 that

there is no feasible and prudent alternative to the construction of

cranberry beds, including dikes and water control structures

associated with dikes, is not subject to either of the following

presumptions:

(a) That feasible and prudent alternatives that do not involve

a wetland are available.

(b) That a feasible and prudent alternative that does not

affect a wetland will have less adverse effects on the aquatic

ecosystem.

Sec. 30306. (1) Except as provided in section 30307(6), to

obtain a permit for a use or development listed in section 30304, a

person shall file an application with the department on a form

provided by the department. The application shall include all of

the following:

(a) The person's name and address.

(b) The location of the wetland.

development is to be made.

(d) A statement and appropriate drawings describing the

proposed use or development.

(e) The wetland owner's name and address.

(f) An environmental assessment of the proposed use or

development if requested by the department. ~~, which~~ The assessment

shall include the effects upon wetland benefits and the effects

upon the water quality, flow, and levels, and the wildlife, fish,

and vegetation within a contiguous lake, river, or stream.

(2) For the purposes of subsection (1), a proposed use or

development of a wetland shall be considered as a single permit

application under this part if the scope, extent, and purpose of a

use or development are made known at the time of the application

for the permit.

(3) Except as provided in subsections (4) and (5), an

application for a permit submitted under subsection (1) shall be

accompanied by the following fee, as applicable:

(a) For a project in a category of activities for which a

general permit is issued under section 30312, a fee of $100.00.

(b) For a permit for the removal of vegetation in an area that

is not more than 100 feet wide or the width of the property,

whichever is less, or the mowing of vegetation ~~in excess of what is~~

~~allowed in section 30305(2)(p)(~~ii) under a general permit, in the

area between the ordinary high-water mark and the water's edge, a

fee of $50.00.

of $2,000.00:

(i) Filling or draining of 1 acre or more of coastal or inland

wetland.

(ii) 10,000 cubic yards or more of wetland fill.

(iii) A new golf course ~~impacting~~ affecting wetland.

(iv) A subdivision ~~impacting~~ affecting wetland.

(v) A condominium ~~impacting~~ affecting wetland.

(d) For all other projects, a fee of $500.00.

(4) A project that requires review and approval under this

part and 1 or more of the following is subject to only the single

highest permit fee required under this part or the following:

(a) Section 3104.

(b) Part 301.

(d) Part 325.

(e) Section 117 of the land division act, 1967 PA 288, MCL

560.117.

(5) If work has been done in violation of a permit requirement

under this part and restoration is not ordered by the department,

the department may accept an application for a permit if the

application is accompanied by a fee equal to twice the permit fee

otherwise required under this section.

(6) If the department determines that a permit is not required

under this part, the department shall promptly refund the fee paid

under this section.

Sec. 30306b. (1) If a preapplication meeting is requested in

writing by the landowner or another person who is authorized in

writing by the landowner, the department shall meet with the person

or his or her representatives to review a proposed project or a

proposed permit application in its entirety. The preapplication

meeting shall take place at the department's district office for

the district that includes the project site or at the project site

itself, as specified in the request.

(2) Except as provided in this subsection, the request shall

be accompanied by a fee. The fee for a preapplication meeting at

the district office is $150.00. The fee for a preapplication

meeting at the project site is $250.00 for the first acre or

portion of an acre of project area, plus $50.00 for each acre or

portion of an acre in excess of the first acre, but not to exceed a

fee of $1,000.00. However, if both of the following apply:

(a) If the location of the project is a single family

residential lot that is less than 1 acre in size, there is no fee

for a preapplication meeting at the district office, and the fee

for a preapplication meeting at the project site is $100.00.

(b) There is no fee for a preapplication meeting for cranberry

production activities, whether at the district office or project

site. This subdivision does not apply on or after October 1, 2012.

(3) If the person withdraws the request at least 24 hours

before the preapplication meeting, the department may agree with

the person to reschedule the meeting or shall promptly refund the

fee and need not meet as provided in this section. Otherwise, if,

after agreeing to the time and place for a preapplication meeting,

the person is not represented at the meeting, the person shall

forfeit the fee for the meeting. If, after agreeing to the time and

place for a preapplication meeting, the department is not

represented at the meeting, the department shall refund the fee and

send a representative to a rescheduled meeting to be held within 10

days of after the first scheduled meeting date.

(4) Any written agreement provided by the department as a

result of the preapplication meeting regarding the need to obtain a

permit is binding on the department for 2 years ~~from~~ after the date

of the agreement.

Sec. 30311. (1) A permit for an activity listed in section

30304 shall not be approved unless the department determines that

the issuance of a permit is in the public interest, that the permit

is necessary to realize the benefits derived from the activity, and

that the activity is otherwise lawful.

(2) In determining whether the activity is in the public

interest, the benefit which reasonably may be expected to accrue

from the proposal shall be balanced against the reasonably

foreseeable detriments of the activity. The decision shall reflect

the national and state concern for the protection of natural

resources from pollution, impairment, and destruction. The

following general criteria shall be considered:

(a) The relative extent of the public and private need for the

proposed activity.

(b) The availability of feasible and prudent alternative

locations and methods to accomplish the expected benefits from the

activity.

effects that the proposed activity may have on the public and

private uses to which the area is suited, including the benefits

the wetland provides.

(d) The probable ~~impact~~ effects of each proposal in relation

to the cumulative ~~effect~~ effects created by other existing and

anticipated activities in the watershed.

(e) The probable ~~impact~~ effects on recognized historic,

cultural, scenic, ecological, or recreational values and on the

public health or fish or wildlife.

(f) The size of the wetland being considered.

(g) The amount of remaining wetland in the general area.

(h) Proximity to any waterway.

(i) Economic value, both public and private, of the proposed

land change to the general area.

(3) In considering a permit application, the department shall

give serious consideration to findings of necessity for the

proposed activity which have been made by other state agencies.

(4) A permit shall not be issued unless it is shown that an

unacceptable disruption will not result to the aquatic resources.

In determining whether a disruption to the aquatic resources is

unacceptable, the criteria set forth in section 30302 and

subsection (2) shall be considered. A permit shall not be issued

unless the applicant also shows either of the following:

(a) The proposed activity is primarily dependent upon being

located in the wetland.

(b) A feasible and prudent alternative does not exist.

(5) If it is otherwise a feasible and prudent alternative, an

area not presently owned by the applicant which could reasonably be

obtained, utilized, expanded, or managed in order to fulfill the

basic purpose of the proposed activity may be considered.

(6) An alternative that entails higher costs, as described in

R 281.922a(11) of the Michigan administrative code, is not feasible

and prudent if those higher costs are unreasonable. In determining

whether such costs are unreasonable, the department shall consider

both of the following:

(a) The relation of the increased cost to the overall scope

and cost of the project.

(b) Whether the projected cost is substantially greater than

the costs normally associated with the particular type of project.

Sec. 30311a. (1) A guideline, bulletin, interpretive

statement, or form with instructions under this part shall not be

given the force and effect of law. A guideline, bulletin,

interpretive statement, or form with instructions under this part

is not legally binding on the public or the regulated community and

shall not be cited by the department for compliance and enforcement

purposes.

(2) Within 1 year after the effective date of the 2009

amendatory act that added this subsection, the department shall

adopt a new guidance document for the evaluation of feasible and

prudent alternatives. The guidance document shall be consistent

with findings and recommendations of the United States

environmental protection agency's region 5 review of the program

under this part. The department shall develop the guidance document

in consultation with interested parties, including the council.

(3) Before the guidance document under subsection (2) takes

effect, the department shall not deny an application for a permit

required under section 30304 because of the availability of a

feasible and prudent alternative based solely on consideration of

statewide alternatives, higher cost, or reduced profit unless both

of the following apply:

(a) The proposed denial has been reviewed by a department

deputy director.

(b) The department has requested information from the Michigan

economic development corporation and applicable regional and local

economic development authorities relative to the project and

considered the information received.

(4) Before the guidance document under subsection (2) takes

effect, the processing period specified under section 1301 for a

permit required under section 30304 is extended if department staff

have proposed denying the permit for reasons set forth in

subsection (7). Notwithstanding section 1307(1), the extension

shall be for not more than 45 days.

(5) The department shall not file a request for rule-making

under section 39 of the administrative procedures act, 1969 PA 306,

MCL 24.239, for rules addressing the evaluation of feasible and

prudent alternatives before October 1, 2012.

Sec. 30311b. (1) A permit issued under this part shall not be

valid for more than 5 years.

(2) The department may establish a reasonable time when the

construction, development, or use authorized under any permit

issued under this part is to be completed or terminated.

(3) The department may impose on any permit or authorization

under a general permit under this part conditions designed to do

any of the following:

(a) Remove or reduce an impairment to wetland benefits, as set

forth in section 30302, that would otherwise result from the

project.

(b) Improve the water quality that would otherwise result from

the project.

material.

(4) The department may impose a condition on an authorization

under a general permit under subsection (3) only after consultation

with the applicant or applicant's agent.

Sec. 30311d. (1) The department may impose as a condition on

any permit, other than a general permit, under this part a

requirement for compensatory wetland mitigation. The department may

approve 1 or more of the following methods of compensatory wetland

mitigation:

(a) The acquisition of approved credits from a wetland

mitigation bank. The department shall not require a permit

applicant to provide compensatory wetland mitigation under

subdivision (b), (c), or (d) if the applicant prefers and qualifies

to use approved credits from the wetland mitigation bank to provide

required compensatory wetland mitigation under this subdivision.

(b) The restoration of previously existing wetland. The

restoration of previously existing wetland is preferred over the

creation of new wetland where none previously existed.

demonstrates that ecological conditions necessary for establishment

of a self-sustaining wetland ecosystem exist or will be created.

(d) The preservation of exceptional wetlands.

(2) If compensatory wetland mitigation under subsection

(1)(b), (c), or (d) is required, a permit applicant shall submit a

mitigation plan to the department for approval. In approving a

compensatory mitigation plan, the department shall consider how the

location and type of wetland mitigation supports the sustainability

or improvement of aquatic resources in the watershed where the

activity is permitted. The permit applicant shall provide for

permanent protection of the wetland mitigation site. The department

may accept a conservation easement to protect wetland mitigation

and associated upland.

(3) If a permittee carries out compensatory wetland mitigation

under subsection (1)(b), (c), or (d) in cooperation with public

agencies, private organizations, or other parties, the permittee

remains responsible for the compensatory wetland mitigation to the

extent otherwise provided by law.

(4) The department may require financial assurance to ensure

that compensatory wetland mitigation is accomplished as specified.

To ensure that wetland benefits are replaced by compensatory

wetland mitigation, the department may release financial assurance

only after the permit applicant or mitigation bank sponsor has

completed monitoring of the mitigation site and demonstrated

compliance with performance standards in accordance with a schedule

in the permit or mitigation banking agreement.

Sec. 30312. (1) After providing notice and an opportunity for

a public hearing, the department shall establish minor project

categories of activities that are similar in nature, have minimal

adverse environmental effects when performed separately, and will

have only minimal cumulative adverse effects on the environment.

The department may act upon an application received pursuant to

section 30306 for an activity within a minor project category

without holding a public hearing or providing notice pursuant to

section 30307(1) or (3). A minor project category shall not be

valid for more than 5 years, but may be reestablished. All other

provisions of this part, except provisions applicable only to

general permits, are applicable to a minor project.

(2) ~~(1)~~ The department, after notice and opportunity for a

public hearing, ~~may~~ shall issue general permits on a statewide

basis or within a local unit of government for a category of

activities if the department determines that the activities are

similar in nature, will cause only minimal adverse environmental

effects when performed separately, and will have only minimal

cumulative adverse ~~effect~~ effects on the environment. A general

permit ~~issued under this subsection~~ shall be based on the

requirements of this part and the rules promulgated under this

part, and shall set forth the requirements and standards that shall

apply to an activity authorized by the general permit. A general

permit shall not be valid for more than 5 years, but may be

reissued.

~~(2) The department may impose conditions on a permit for a use~~

~~or development if the conditions are designed to remove an~~

~~impairment to the wetland benefits, to mitigate the impact of a~~

~~discharge of fill material, or to otherwise improve the water~~

~~quality.~~

~~(3) The department may establish a reasonable time when the~~

~~construction, development, or use is to be completed or terminated.~~

~~A general permit shall not be valid for more than 5 years.~~

(3) ~~(4)~~ A general permit under this section may be issued for

the mowing of vegetation or the removal of vegetation in the area

between the ordinary high-water mark and the water's edge. An

application under this subsection may be submitted by a local unit

of government on behalf of property owners within its jurisdiction

or by 1 or more adjacent property owners for riparian property

located within the same county.

(4) Before authorizing a specific project to proceed under a

general permit, the department may provide notice pursuant to

section 30307(3) but shall not hold a public hearing and shall not

typically require a site inspection. The department shall issue an

authorization under a general permit if the conditions of the

general permit and the requirements of section 30311 are met.

However, in determining whether to issue an authorization under a

general permit, the department shall not consider off-site

alternatives to be feasible and prudent alternatives.

(5) If the department determines that activity in a proposed

project, although within a minor project category or a general

permit, is likely to cause more than minimal adverse effects on

aquatic resources, including high-value aquatic habitats, the

department may require that the application be processed under

section 30307.

(6) The department shall coordinate general permit and minor

project categories under this part and parts 301 and 325 consistent

with nationwide permits, as appropriate.

Sec. 30312b. (1) The department shall propose new or maintain

existing general permits under this part equivalent to the

following nationwide permits, to the extent applicable to wetland,

without further limitations:

(a) Maintenance.

(b) Scientific measuring devices.

(d) Oil spill cleanup.

(e) Moist soil management.

(f) Cleanup of hazardous and toxic waste.

(g) Storm water management facilities.

(h) Pipeline safety program designated time sensitive

inspections and repairs.

(2) The department shall propose new or maintain existing

general permits or minor project categories equivalent to the

following nationwide permits, to the extent that the nationwide

permits are applicable to wetland, subject to additional

limitations based on best management practices and necessary to

ensure that adverse environmental effects are minimal or based on

other statutes, which limitations may be established by the

department after providing notice and an opportunity for public

comment:

(a) Outfall structures and associated intake structures.

(b) Minor discharges.

(d) Expansion of existing cranberry production activities.

(3) The department shall propose new or maintain existing

general permits or minor project categories for the following:

(a) Temporary recreational structures.

(b) Linear transportation projects.

enhancement activities, including reversion of temporary wetland

restorations.

(d) Residential developments.

(e) Completed enforcement actions.

(f) Temporary construction, access, and dewatering.

(g) Cranberry production activities.

(h) Agricultural activities.

(i) Reshaping existing drainage ditches.

(j) Recreational facilities.

(4) This section is repealed effective October 1, 2012.

Sec. 30312d. The department shall develop a program to

facilitate ecologically responsible voluntary wetland restoration

and enhancement projects in coordination with state, federal,

tribal, and nongovernmental groups specializing in wetland

restoration and conservation. The program shall include, but not be

limited to, enhancing coordination, consistency, and operational

procedures and improving and streamlining the permitting process,

to facilitate a net gain in wetland quantity, quality, or both.

Sec. 30317. (1) The civil fines collected under this part

shall be forwarded to the state treasurer for deposit in the

general fund of the state. The fees collected under this part shall

be deposited in the land and water management permit fee fund

created in section 30113.

(2) Subsection (1) does not apply to fines or fees collected

under an ordinance adopted under section 30307(4).

(3) Subject to section 30113, the department shall expend

money from the land and water management permit fee fund, upon

appropriation, to support guidance for property owners and

applicants, permit processing, compliance inspections, and

enforcement activities under this part. Not more than 90 days after

the end of each state fiscal year, ~~ending after 1997,~~ the

department shall prepare a report describing how money from the

land and water management permit fee fund was expended during that

fiscal year ~~and an evaluation of the current statutory and~~

~~department rules, bulletins, and letters definition of a wetland~~

~~and any appropriate changes to that definition in the first report~~

~~submitted to the legislature under this section~~ and shall submit

the report to the standing committees of the house of

representatives and the senate that primarily address issues

pertaining to the protection of natural resources and the

environment, and the appropriations committees in the house of

representatives and the senate. Other than civil fines and costs,

the disposition of which is governed by section 8379 of the revised

judicature act of 1961, 1961 PA 236, MCL 600.8379, or criminal

fines, funds collected by a local unit of government under an

ordinance authorized under section 30307(4) shall be deposited in

the general fund of the local unit of government.

Sec. 30325. The department shall pursue an agreement with the

United States environmental protection agency to expand the

categories of discharges subject to the waiver from the

requirements of section 404(j) of title IV of the federal water

pollution control act, 33 USC 1344, pursuant to section 404(k) of

title IV of the federal water pollution control act, 33 USC 1344.

Sec. 30327. The department may provide certifications under

section 401 of title IV of the federal water pollution control act,

33 USC 1341.

Sec. 30329. (1) The wetland advisory council is created within

the department. The council shall consist of the following:

(a) The director of the department or his or her designee. The

director of the department shall invite a representative of the

United States army corps of engineers, a representative of the

United States environmental protection agency, and a representative

of the United States department of agriculture natural resource

conservation service to also serve as members of the council.

(b) The director of the department of natural resources or his

or her designee.

her designee.

(d) The following members appointed by the senate majority

leader:

(i) One individual representing a statewide association of home

builders.

(ii) One individual representing a statewide conservation

organization.

(iii) One individual representing a statewide association of

local units of government.

(iv) One individual representing a statewide association of

manufacturers.

(e) The following members appointed by the speaker of the

house of representatives:

(i) One individual representing a statewide environmental

protection organization.

(ii) One individual representing the largest general statewide

farm organization.

(iii) One individual representing a statewide association of

realtors.

(iv) One drain commissioner representing an association of

county drain commissioners.

(f) The following members appointed by the governor:

(i) One individual representing a watershed organization.

(ii) One individual representing natural gas or electric

utilities.

(iii) One individual representing a conservation district.

(iv) One individual representing a statewide association of

businesses.

(v) One individual representing the general public.

(vi) A university professor with expertise in wetland science.

(vii) A wetland professional who regularly submits applications

for permits and obtains permits from the department.

(2) The appointments to the council under subsection (1) shall

be made not later than 30 days after the effective date of the

amendatory act that added this section.

(3) An appointed member of the council shall serve for a term

of 3 years. If a vacancy occurs on the council, the vacancy shall

be filled for the unexpired term in the same manner as the original

appointment. The appointing officer may remove a member of the

council for incompetence, dereliction of duty, malfeasance,

misfeasance, or nonfeasance in office, or any other good cause.

(4) The first meeting of the council shall be called by the

director of the department. At the first meeting, the council shall

elect from among its members a chairperson and any other officers

that it considers necessary or appropriate. After the first

meeting, the council shall meet at least quarterly, or more

frequently at the call of the chairperson or if requested by 2 or

more members.

(5) A majority of the members of the council constitute a

quorum for the transaction of business at a meeting of the council.

A majority of the members present and serving are required for

official action of the council.

(6) The business that the council may perform shall be

conducted at a public meeting of the council held in compliance

with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275. A

writing prepared, owned, used, in the possession of, or retained by

the council in the performance of an official function is subject

to the freedom of information act, 1976 PA 442, MCL 15.231 to

15.246.

(7) Members of the council shall serve without compensation.

However, a member of the council representing the department of

natural resources, the department of agriculture, or the department

shall serve without additional compensation.

(8) By October 1, 2010, the council shall submit a report to

the governor, the department, and the standing committees and

appropriations subcommittees of the legislature with primary

responsibility over issues pertaining to natural resources and the

environment. The report shall evaluate and make recommendations on

all of the following:

(a) Improving the overall efficiency of the program under this

part, including all of the following aspects of the permit

application, review, and decision-making process:

(i) The quality of applications submitted.

(ii) The effect of mandatory decision-making time frames on

meeting the purposes of this part, and, if appropriate, the time

frames that should apply to decision-making under this part.

(b) The point in the department's process of decision-making

on a permit application at which the possibility of mitigation

should be considered.

determined by the United States environmental protection agency to

support consistency with the requirements of section 404 of title

IV of the federal water pollution control act, 33 USC 1344, as set

forth in "Final Report Results Of The U.S. Environmental Protection

Agency Region 5 Review Of Michigan Department Of Environmental

Quality's Section 404 Program", dated May 2008.

(9) By August 15, 2012, the council shall submit a report to

the governor, the department, and the standing committees and

appropriations subcommittees of the legislature with primary

responsibility over issues pertaining to natural resources and the

environment. The report shall evaluate and make recommendations on

all of the following:

(a) Improving coordination and reducing duplication of effort

with the United States army corps of engineers.

(b) Potential long-term changes in program structure,

including all of the following:

(i) Scientific methods to achieve more consistent and accurate

determinations of wetland functions and values for reviewing

applications for permits, watershed planning, conservation plans,

and other purposes. These methods include rapid wetland assessment

and landscape level wetland assessment.

(ii) The appropriate role of local units of government and

conservation districts in the administration of this part.

(iii) A certification process for wetland professionals. The

council shall consider information reported under section 30303b in

evaluating and making recommendations under this subparagraph.

(iv) The definition of wetland and wetland delineation methods,

including the role of hydric soils as a factor in wetland

delineation. In making recommendations under this subparagraph, the

council shall evaluate differences in the state and federal wetland

programs.

this part.

(d) Minor project categories and general permits under section

30312b(1) to (3).

(e) The appropriateness of the provisions of section 30304b as

a means of reducing regulatory burdens from dual federal and state

regulation.

(f) The promotion of the development of wetland mitigation

banks.

(g) Ways for the public and interested parties to advise the

department on a continuing basis concerning the administration and

enforcement of this part.

(h) Appropriate regulation of the siting, construction, and

operation of cranberry production activities, in light of the

benefit of cranberry production activities to the economy, the

regulatory approach of other states, and other factors.

(i) The feasible and prudent alternative standard under

section 30311 and consistent application of the standard.

(j) Methods to assist both of the following in successfully

obtaining permits under this part in a timely manner:

(i) Individuals proposing a use or activity for their personal

homesite.

(ii) Nonprofit organizations.

(10) This section is repealed effective April 1, 2013.

Sec. 32512a. (1) After providing notice and an opportunity for

a public hearing, the department shall establish minor project

categories of activities that are similar in nature, have minimal

adverse environmental effects when performed separately, and will

have only minimal cumulative adverse effects on the environment.

The department may act upon an application received pursuant to

section 32513 for an activity within a minor project category

without providing notice pursuant to section 32514. A minor project

category shall not be valid for more than 5 years, but may be

reestablished. All other provisions of this part, except provisions

applicable only to general permits, are applicable to a minor