SENATE BILL No. 785

August 27, 2009, Introduced by Senator BIRKHOLZ and referred to the Committee on Natural Resources and Environmental Affairs.

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 5202, 8807, 30105, 30301, 30305, 30306,

30306b, 30311, 30312, 30317, 32501, 32512, 32512a, and 32513 (MCL

324.5202, 324.8807, 324.30105, 324.30301, 324.30305, 324.30306,

324.30306b, 324.30311, 324.30312, 324.30317, 324.32501, 324.32512,

324.32512a, and 324.32513), section 5202 as added by 2002 PA 397,

section 8807 as added by 1998 PA 287, section 30105 as amended by

2006 PA 531, sections 30301, 30305, 30306, 30312, 32501, and 32512

as amended and section 32512a as added by 2003 PA 14, section

30306b as added by 2006 PA 435, section 30311 as added by 1995 PA

59, 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, 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. 5202. (1) The authority in consultation with the

department shall establish a strategic water quality initiatives

loan program. This loan program shall provide low interest loans to

municipalities to provide assistance ~~for improvements to a sewage~~

~~system~~ for 1 or more of the following:

(a) Improvements to reduce or eliminate the amount of

groundwater or storm water entering a sanitary sewer lead or a

combined sewer lead.

(b) Upgrades or replacements of failing on-site septic systems

that are adversely affecting public health or the environment, or

both.

for under section 30311d. Not more than a total of $5,000,000.00 in

loans shall be provided under this subdivision.

(2) In implementing the loan program, the department shall

annually establish the interest rate that will be charged for

loans.

Sec. 8807. (1) The clean water fund is created within the

state treasury.

(2) The state treasurer may receive money or other assets from

any source for deposit into the fund. The state treasurer shall

direct the investment of the fund. The state treasurer shall credit

to the fund interest and earnings from fund investments.

(3) Money in the fund at the close of the fiscal year shall

remain in the fund and shall not lapse to the general fund.

(4) Except as otherwise provided in this section, the

department shall expend money in the fund, upon appropriation, for

any of the following:

(a) To implement the programs described in the department's

document entitled "A strategic environmental quality monitoring

program for Michigan's surface waters", dated January 1997. In

implementing these programs, the department may contract with any

person.

(b) Water pollution control activities.

(d) Storm water treatment projects and activities.

(e) To implement parts 301, 303, 315, 323, and 325; the

floodplain permit program under section 3104; and section 117 of

the land division act, 1967 PA 288, MCL 560.117.

(5) Money in the fund shall not be expended for combined sewer

overflow corrections.

(6) The first priority for expenditure of money in the fund

shall be for the programs described in subsection (4)(a).

(7) Money in the fund shall not be expended until rules are

promulgated under section 8808.

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, and 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 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 shall not provide notice or 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. 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.~~

(a) "Council" means the wetland advisory council created in

section 30329.

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

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

made origin.

quality.

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

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

defined in section 32301.

(f) "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.

(g) ~~(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.~~

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

~~pushing,~~ or pulling metal teeth or other grooming equipment through

the top 4 inches of ~~soil~~ sand without disturbance of or destruction

to plant roots, for the purpose of removing debris.

(i) "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.

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

~~areas being leveled that are predominantly free of vegetation~~ to

sand areas, including the redistribution, grading, and spreading of

sand that has been deposited through wind or wave action onto

upland riparian property.

(k) ~~(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.

(l) ~~(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.

(m) "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.

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

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

(o) ~~(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.

(p) ~~(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.

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

assessing the functions, values, and condition of individual

wetlands based on existing data and field indicators.

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

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

vegetation.

(s) A sensitive natural resource area includes, but is not

limited to, any of the following:

(i) A federally designated wild and scenic river.

(ii) A state designated natural river.

(iii) A state or federally designated wilderness or

environmental area.

(iv) A riverine floodway, unless qualified as a minor project

under part 31.

(v) Habitat of a state or federally listed or proposed

threatened or endangered species, unless alternative procedures are

followed to coordinate with federal agencies or the landowner has

obtained a letter of no impact from the department of natural

resources.

(vi) An identified historic or archeological area.

(vii) An identified recharge area for drinking water aquifers.

(viii) An identified rare or unique ecological type.

(t) "Shoreline management 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) Leveling of sand.

(ii) Grooming of sand.

(iii) Construction and maintenance of a path.

(iv) Mowing of vegetation.

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

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

(v) ~~(p)~~ "Wetland" means land that, as determined pursuant to

federal wetland delineation standards used to implement section

404(b)(1) of title IV of the federal water pollution control act,

33 USC 1344, is 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.~~

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

program to facilitate the role of local units of government,

conservation districts, or nonprofit organizations in assisting

persons 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 at the

same time 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

nonprofit or for-profit organizations 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 organizations 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) Section 30304 does not apply to the mowing of

vegetation between the ordinary high-water mark and the water's

edge in a bay area designated under subsection (2), if the mowing

of vegetation meets all of the following requirements:

(a) The mowing meets 1 or more of the following conditions:

(i) Is limited to a pathway that does not exceed 10 feet in

width from an upland riparian property to the water's edge and to a

height of not less than 4 inches and does not occur in an

environmental area.

(ii) Is limited to a recreational area that does not exceed 400

square feet in area and to a height of not less than 4 inches and

does not occur in an environmental area.

(iii) Is limited to areas previously mowed in accordance with

this part, to the width of the property or 100 feet, whichever is

less, and to a height of not less than 4 inches and does not occur

in an environmental area.

(iv) Is limited to an area predominantly vegetated by nonnative

species or invasive species and is conducted as part of a

vegetation control plan in accordance with recommendations provided

by the department.

(b) The mowing does not disturb soil or plant roots.

(i) Part 365 or rules promulgated under that part.

(ii) The endangered species act of 1973, Public Law 93-205, or

rules promulgated under that act.

(d) All collected vegetation is disposed of properly outside

of any wetland.

(e) Thatch is not removed by mechanical raking or other

methods that disturb soil or plant roots.

(2) Not more than 42 days after the effective date of the

amendatory act that added this section, the director shall

designate a bay area of the Great Lakes to which this section

applies. In selecting the bay area, the director shall consider the

expressed need for mowing in the bay area. 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) This section is repealed effective October 1, 2012.

Sec. 30305. (1) Activities that require a permit under part

325 or part 301 or a discharge that is authorized by a discharge

permit under section 3112 or 3113 do not require a permit under

this part.

(2) The following uses are allowed in a wetland without a

permit subject to other laws of this state and the owner's

regulation:

(a) Fishing, trapping, or hunting.

(b) Swimming or boating.

(d) Grazing of animals.

(e) Farming, horticulture, silviculture, lumbering, and

ranching activities, including plowing, irrigation, irrigation

ditching, seeding, cultivating, minor drainage, harvesting for the

production of food, fiber, and forest products, or upland soil and

water conservation practices. Wetland altered under this

subdivision shall not be used for a purpose other than a purpose

described in this subsection without a permit from the department.

(f) Maintenance or operation of serviceable structures in

existence on October 1, 1980 or constructed pursuant to this part

or former 1979 PA 203.

(g) Construction or maintenance of farm or stock ponds.

(h) Maintenance, operation, or improvement which includes

straightening, widening, or deepening of the following which is

necessary for the production or harvesting of agricultural

products:

(i) An existing private agricultural drain.

(ii) That portion of a drain legally established pursuant to

the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630, which has

been constructed or improved for drainage purposes.

(iii) A drain constructed pursuant to other provisions of this

part or former 1979 PA 203.

(i) Construction or maintenance of farm roads, forest roads,

or temporary roads for moving mining or forestry equipment, if the

roads are constructed and maintained in a manner to ~~assure~~ ensure

that any adverse effect on the wetland will be otherwise minimized.

(j) Drainage necessary for the production and harvesting of

agricultural products if the wetland is owned by a person who is

engaged in commercial farming and the land is to be used for the

production and harvesting of agricultural products. Except as

otherwise provided in this part, wetland improved under this

subdivision after October 1, 1980 shall not be used for nonfarming

purposes without a permit from the department. This subdivision

does not apply to a wetland that is contiguous to a lake or stream,

or to a tributary of a lake or stream, or to a wetland that the

department has determined by clear and convincing evidence to be a

wetland that is necessary to be preserved for the public interest,

in which case a permit is required.

(k) Maintenance or improvement of public streets, highways, or

roads, within the right-of-way and in such a manner as to ~~assure~~

ensure that any adverse effect on the wetland will be otherwise

minimized. Maintenance or improvement does not include adding extra

lanes, increasing the right-of-way, or deviating from the existing

location of the street, highway, or road.

(l) Maintenance, repair, or operation of gas or oil pipelines

and construction of gas or oil pipelines having a diameter of 6

inches or less, if the pipelines are constructed, maintained, or

repaired in a manner to ~~assure~~ ensure that any adverse effect on

the wetland will be otherwise minimized.

(m) Maintenance, repair, or operation of electric transmission

and distribution power lines and construction of distribution power

lines, if the distribution power lines are constructed, maintained,

or repaired in a manner to ~~assure~~ ensure that any adverse effect on

the wetland will be otherwise minimized.

(n) Operation or maintenance, including reconstruction of

recently damaged parts, of serviceable dikes and levees in

existence on October 1, 1980 or constructed pursuant to this part

or former 1979 PA 203.

(o) Construction of iron and copper mining tailings basins and

water storage areas.

~~(p) Until~~ ~~November 1, 2007, beach maintenance activities that~~

~~meet all of the following conditions:~~

(i~~) The activities shall not occur in environmental areas and~~

~~shall not violate part 365 or rules promulgated under that part, or~~

~~the endangered species act of 1973, Public Law 93-205, 87 Stat.~~

~~884, or rules promulgated under that act.~~

(ii~~) The width of any mowing of vegetation shall not exceed the~~

~~width of the riparian property or 100 feet, whichever is less.~~

(~~iii~~~~) All collected debris shall be disposed of properly outside~~

~~of any wetland.~~

~~(q) Until 3 years after the effective date of the amendatory~~

~~act that added this subdivision, removal of vegetation as~~

~~authorized under section 32516.~~

(3) An activity in a wetland that was effectively drained for

farming before October 1, 1980 and that on and after October 1,

1980 has continued to be effectively drained as part of an ongoing

farming operation is not subject to regulation under this part.

(4) A wetland that is incidentally created as a result of 1 or

more of the following activities is not subject to regulation under

this part:

(a) Excavation for mineral or sand mining, if the area was not

a wetland before excavation. This exemption does not include a

wetland on or adjacent to a water body of 1 acre or more in size.

(b) Construction and operation of a water treatment pond or

lagoon in compliance with the requirements of state or federal

water pollution control regulations.

complies with the terms of the landfill construction permit and if

the diked area was not a wetland before diking.

Sec. 30305b. (1) Within 180 days after the effective date of

the amendatory act that added this section, the department in

consultation with the department of agriculture 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,

or sites that have been drained for agricultural use and continue

to be wetland. The sites shall not include sensitive natural

resource areas or natural or undisturbed wetlands. 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.

(2) After 2,000 acres of sites identified under subsection (1)

have been developed for cranberry production activities, at least

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

subsection (1).

(3) 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. Pursuant to sections

30302(1)(c) and 30311(2)(i), the department shall give due

consideration to the location of cranberry beds as a crop that for

agricultural and economic purposes is most ideally suited to be

grown within wetlands.

(4) The following activities associated with cranberry

operations are not considered 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.

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) The department's determination of feasible and prudent

alternatives under subsections (2)(b) and (4)(b) with respect to a

permit for a commercial or agricultural activity shall be made

after review by a deputy director. The deputy director's review

shall include or be preceded by consultation with the Michigan

economic development corporation and applicable regional and local

economic development authorities.

(6) The department's land and water management division

operating procedure number 303-08-01 for the evaluation of feasible

and prudent alternatives under this part is void and shall not be

utilized by department staff. The department shall not develop any

further operating procedures or guidance for the evaluation of

feasible and prudent alternatives, but shall follow department

rules to the extent that they are not more stringent than

corresponding federal rules.

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.

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.

(b) The restoration of previously existing wetlands. The

restoration of previously existing wetlands is preferred over the

creation of new wetlands 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) For compensatory wetland mitigation under subsection

(1)(b), (c), or (d), 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 benefits of the wetland

mitigation site. The department may accept a conservation easement

to protect wetland mitigation and associated uplands.

(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 fully responsible for the compensatory wetland mitigation.

(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 may 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 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.~~

~~(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.~~

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

general permit, the department shall not provide notice or 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.

(4) 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.

(5) 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 or maintain

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 or maintain general permits

or minor project categories equivalent to the following nationwide

permits, to the extent applicable to wetland, but subject to

additional limitations that may be established by the department

after receiving public comment and considering best management

practices:

(a) Outfall structures and associated intake structures.

(b) Minor discharges.

(d) Expansion of existing cranberry production activities.

(3) The department shall propose or maintain 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. The general permit or

minor project category under this subdivision shall not apply to

activities in sensitive natural resource areas or natural or

undisturbed wetlands.

(h) Agricultural activities.

(i) Reshaping existing drainage ditches.

(j) Recreational facilities.

(4) The department shall issue a general permit that, subject

to specified conditions, authorizes shoreline management activities

in a bay area designated under section 30305b if the shoreline

management activities are authorized by a permit issued by the

United States army corps of engineers under 33 USC 1344. This

subsection does not require a permit for activities that are exempt

from permit requirements under section 30305b. A general permit

issued under this subsection shall not authorize any of the

following:

(a) Activities in an environmental area as defined in section

32301 or a critical dune area as defined in section 35301.

(b) Activities that violate any of the following:

(i) Part 365 or rules promulgated under that part.

(ii) The endangered species act of 1973, Public Law 93-205, or

rules promulgated under that act.

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

act that added this subsection, 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 in waters over which the corps retains

jurisdiction under section 10 of the rivers and harbors

appropriations act of 1899, 33 USC 403.

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

Sec. 30312d. The department shall develop a distinct 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.

(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 the largest statewide

conservation organization.

(iii) One individual representing a statewide association of

local units of government.

(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 statewide

agriculture organization.

(iii) One individual representing a statewide association of

realtors.

(f) The following members appointed by the governor:

(i) One individual representing a watershed organization.

(ii) One individual representing 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 professional wetland consultant 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, the member of the council representing the department of

natural resources 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 primarily pertaining to natural

resources and the environment. The report shall evaluate and make

recommendations on all of the following:

(a) Improving the permit application, review, and decision-

making process under this part, including consideration of all of

the following:

(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) Consistent application of the feasible and prudent

alternative standard under section 30311.

on a permit application at which the possibility of mitigation

should be considered.

(d) Actions necessary to adopt and implement measures

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 October 1, 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 primarily 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 professional wetland

consultants. 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 permit categories and general permits under section

30312b(1) to (3).

(e) The appropriateness of state programmatic general permits

under section 404(e) of title IV of the federal water pollution

control act, 33 USC 1344, for activities in waters over which the

corps retains jurisdiction under section 10 of the rivers and

harbors appropriations act of 1899, 33 USC 403, 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.

Sec. 32501. 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.~~

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

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

made origin.

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

quality.

(d) ~~(f)~~ "Environmental area" means an environmental area as

defined in section 32301.

(e) ~~(g)~~ "Grooming of ~~soil~~ sand" means raking, or dragging,

~~pushing,~~ or pulling metal teeth or other grooming equipment through

the top 4 inches of ~~soil~~ sand without disturbance of or destruction

to plant roots, for the purpose of removing debris.

(f) ~~(h)~~ "Leveling of sand" means the relocation of sand ~~within~~

~~areas being leveled that are predominantly free of vegetation~~ to

sand areas, including the redistribution, grading, and spreading of

sand that has been deposited through wind or wave action onto

upland riparian property.

(g) ~~(i)~~ "Marina purposes" means an operation making use of

submerged bottomlands or filled-in bottomlands of the Great Lakes

for the purpose of service to boat owners or operators, which

operation may restrict or prevent the free public use of the

affected bottomlands or filled-in lands.

(h) ~~(j)~~ "Mowing of vegetation" means the cutting of vegetation

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

or plant roots.

(i) ~~(k)~~ "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.

(j) (l) "Removal of vegetation" means the manual or mechanized

removal of vegetation other than the manual de minimis removal of

vegetation.

(k) "Shoreline management 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) Leveling of sand.

(ii) Grooming of sand.

(iii) Construction and maintenance of a path.

(iv) Mowing of vegetation.

(l) ~~(m)~~ "Wetland" means that term as it is defined in section

30301.

Sec. 32512. ~~(1)~~ Unless a permit has been granted by the

department or authorization has been granted by the legislature, or

except as to boat wells and slips facilitating private,

noncommercial, recreational boat use, not exceeding 50 feet in

length where the spoil is not disposed of below the ordinary high-

water mark of the body of water to which it the well or slip is

connected, a person shall not do any of the following:

(a) Construct, dredge, commence, or do any work with respect

to an artificial canal, channel, ditch, lagoon, pond, lake, or

similar waterway where the purpose is ultimate connection of the

waterway with any of the Great Lakes, including Lake St. Clair.

(b) Connect any natural or artificially constructed waterway,

canal, channel, ditch, lagoon, pond, lake, or similar waterway with

any of the Great Lakes, including Lake St. Clair, for navigation or

any other purpose.

(d) Construct a marina.

~~(2) Notwithstanding subsection (1), and with respect to lands~~

~~covered and affected by this part, a permit or other approval is~~

~~not required under this part for either of the following:~~

~~(a) Until~~ ~~November 1, 2007, beach maintenance activities that~~

~~meet all of the following conditions:~~

(i~~) The activities shall not occur in environmental areas and~~

~~shall not violate part 365 or rules promulgated under that part, or~~

~~the endangered species act of 1973, Public Law 93-205, 87 Stat.~~

~~884, or rules promulgated under that act.~~

(ii~~) The width of any mowing of vegetation shall not exceed the~~

~~width of the riparian property or 100 feet, whichever is less.~~

(~~iii~~~~) All collected debris shall be disposed of properly outside~~

~~of any wetland.~~

~~(b) Until 3 years after the effective date of the amendatory~~

~~act that added this subdivision, removal of vegetation as~~

~~authorized in section 32516.~~

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

a public hearing, the department may 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