December 15, 2015, Introduced by Reps. Inman, Goike, Rendon, Franz, Outman, Callton, Kelly, Potvin, McBroom, Cole, Pettalia, Glenn, Jenkins, Chatfield and Barrett and referred to the Committee on Agriculture.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 30101a, 30103, 30305, 30311, 30311d, 30312,
30321, and 30328 (MCL 324.30101a, 324.30103, 324.30305, 324.30311,
324.30311d, 324.30312, 324.30321, and 324.30328), sections 30101a
and 30328 as added and sections 30305, 30311, 30311d, 30312, and
30321 as amended by 2013 PA 98 and section 30103 as amended by 2014
PA 253.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 30101a. For the purposes of this part, "waters of the
United States" means navigable waters of the United States as
defined in 33 CFR part 329. For the purposes of this part, the
powers, duties, functions, and responsibilities exercised by the
department because of federal approval of Michigan's permit program
under section 404(g) and (h) of the federal water pollution control
act,
33 USC 1344, apply only to "navigable waters" and "waters
of
the
United States. " as defined under section 502(7) of the
federal
water
pollution control act, 33 USC 1362, and further refined by
federally
promulgated rules and court decisions that have the full
effect
and force of federal law. Determining whether additional
regulation
is necessary to protect Michigan waters beyond the scope
of
federal law is the responsibility of the Michigan legislature
based
on its determination of what is in the best interest of the
citizens
of this state.
Sec. 30103. (1) A permit is not required under this part for
any of the following:
(a) Any fill or structure existing before April 1, 1966, in
waters covered by former 1965 PA 291, and any fill or structures
existing before January 9, 1973, in waters covered for the first
time by former 1972 PA 346.
(b) A seasonal structure placed on bottomland to facilitate
private noncommercial recreational use of the water if it does not
unreasonably interfere with the use of the water by others entitled
to use the water or interfere with water flow.
(c) Reasonable sanding of beaches to the existing water's edge
by the riparian owner or a person authorized by the riparian owner.
(d) Construction, maintenance, or improvement of private
agricultural drains, regardless of outlet, that are not waters of
the United States.
(e) Installation or replacement of culverts on private
property, including private property within a road right-of-way,
for the purpose of constructing a driveway or private road.
(f) Construction, improvement, or maintenance of a pond or
lake on private property if the pond or lake does not have a
surface water inlet from or outlet to waters of the United States.
(g) (d)
Maintenance of an private agricultural
drain, drains,
regardless of outlet, that are waters of the United States, if all
of the following requirements are met:
(i) The maintenance includes only activities that maintain the
location, depth, and bottom width of the drain as constructed or
modified at any time before July 1, 2014.
(ii) The maintenance is performed by the landowner or pursuant
to the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630.
(h) (e)
A waste collection or treatment
facility that is
ordered to be constructed or is approved for construction under
state or federal water pollution control law, if constructed in
upland.
(i) (f)
Construction and maintenance of
minor drainage
structures
and facilities which that are identified by rule
promulgated by the department pursuant to section 30110 and that
are for drains that are not waters of the United States. Before
such a rule is promulgated, the rule shall be approved by the
majority of a committee consisting of the director of the
department, the director of the department of agriculture and rural
development, and the director of the state transportation
department or their designated representatives. The rules shall be
reviewed at least annually.
(j) Construction, maintenance, and improvement, pursuant to
the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630, of all
drains that are not waters of the United States.
(k)
(g) Maintenance of a drain that either was drains that are
waters of the United States and that either were legally
established and constructed before January 1, 1973, pursuant to the
drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630, except those
legally established drains constituting mainstream portions of
certain natural watercourses identified in rules promulgated by the
department
under section 30110, or was were
constructed or modified
under a permit issued pursuant to this part. As used in this
subdivision, "maintenance of a drain" means the physical
preservation of the location, depth, and bottom width of a drain
and appurtenant structures to restore the function and approximate
capacity of the drain as constructed or modified at any time before
July 1, 2014, and includes, but is not limited to, the following
activities if performed with best management practices:
(i) Excavation of accumulated sediments back to original
contours.
(ii) Reshaping of the side slopes.
(iii) Bank stabilization where reasonably necessary to prevent
erosion. Materials used for stabilization must be compatible with
existing bank or bed materials.
(iv) Armoring, lining, or piping if a previously armored,
lined, or piped section is being repaired and all work occurs
within the footprint of the previous work.
(v) Replacement of existing control structures, if the
original function of the drain is not changed and the original
approximate capacity of the drain is not increased.
(vi) Repair of stabilization structures.
(vii) Culvert replacement, including culvert extensions of not
more than 24 additional feet per culvert.
(viii) Emergency reconstruction of recently damaged parts of
the drain. Emergency reconstruction must occur within a reasonable
period of time after damage occurs in order to qualify for this
exemption.
(l) (h)
Projects constructed under the
watershed protection
and
flood prevention act, chapter 656, 68 Stat. Stat 666,
16 USC
1001
to 1008, 1010, and 1011.1012,
and not located in waters of the
United States.
(m) (i)
Construction and maintenance of
privately owned
cooling or storage ponds that are not waters of the United States
used in connection with a public utility except at the interface
with public waters.
(n) (j)
Maintenance of a structure
constructed under a permit
issued pursuant to this part and identified by rule promulgated
under section 30110, if the maintenance is in place and in kind
with no design or materials modification and the structure is not
located in waters of the United States.
(o) (k)
A water withdrawal.
(p) (l) Annual
installation of a seasonal dock or docks,
pilings, mooring buoys, or other mooring structures previously
authorized by and in accordance with a permit issued under this
part.
(q) (m)
Controlled access of livestock to
streams for watering
or crossing if constructed in accordance with applicable practice
standards
set by the United States department of agriculture,
natural
resources conservation service.Department
of Agriculture,
Natural Resources Conservation Service.
(r) (n)
Temporary drawdowns of impoundments
at hydroelectric
projects
licensed by the federal energy regulatory commission
Federal Energy Regulatory Commission (FERC) and subject to FERC's
authority if both of the following apply:
(i) The FERC licensee has consulted this state during the
drawdown plan development and this state's concerns have been
addressed in the drawdown plan as FERC considers appropriate.
(ii) Adverse environmental impacts, including those related to
stream flow, aquatic resources, and timing, have been avoided and
minimized to the extent practical.
(s) (o)
Removal, by the riparian owner or a
person authorized
by the riparian owner, of plants that are an aquatic nuisance as
defined in section 3301, if the removal is accomplished by hand-
pulling without using a powered or mechanized tool and all plant
fragments are removed from the water and properly disposed of on
land above the ordinary high-water mark as defined in section
30101.
(t) (p)
Raking of lake bottomlands by the
riparian owner or a
person authorized by the riparian owner. To minimize effects on the
lake bottomlands, the areas raked shall be unvegetated before
raking and predominantly composed of sand or pebbles, and the
raking shall be performed without using a powered or mechanized
tool. For the purposes of this subdivision, the pulling of a
nonpowered, nonmechanized tool with a boat is not the use of a
powered or mechanized tool.
(2)
As used in this section: , "water
(a) "Private agricultural drain" means a human-constructed
open ditch located on qualified agricultural property as defined in
section 7dd of the general property tax act, 1893 PA 206, MCL
211.7dd, and used for the conveyance of water.
(b) "Water withdrawal" means the removal of water from its
source for any purpose.
(3)
As used in this part, "agricultural drain" means a human-
made
conveyance of water that meets all of the following
requirements:
(a)
Does not have continuous flow.
(b)
Flows primarily as a result of precipitation-induced
surface
runoff or groundwater drained through subsurface drainage
systems.
(c)
Serves agricultural production.
(d)
Was constructed before January 1, 1973, or was constructed
in
compliance with this part or former 1979 PA 203.
(3) The department shall not consider a wetland or inland lake
or stream that is not waters of the United States in determining
whether an inland lake or stream is contiguous to a wetland or
inland lake or stream that is waters of the United States.
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.
(c) Hiking.
(d) Grazing of animals, including fencing and post placement
if the fence is designed to control livestock, does not exceed 11
feet in height, and utilizes an amount of material that does not
exceed that of a woven wire fence utilizing 6-inch vertical spacing
and posts.
(e)
Farming, In wetlands that
are not waters of the United
States, agricultural production including horticulture,
silviculture, lumbering, and ranching activities, including
plowing,
tilling, irrigation, irrigation ditching, seeding,
planting seeds, cultivating crops, minor drainage, producing and
harvesting plants and animals useful to humans or for the
production of food, fiber, and forest products, earth shaping
necessary for the production of blueberries, or upland soil and
water
conservation practices. All In
wetlands that are waters of
the United States, 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, subject to all of the following:
apply
for the purposes of this subdivision:
(i) Beginning October 1, 2013, to be allowed in a wetland
without a permit, these activities shall be part of an established
ongoing farming, ranching, horticultural, or silvicultural
operation. Farming and silvicultural activities on areas lying
fallow as part of a conventional rotational cycle are part of an
established ongoing operation, unless modifications to the
hydrological regime or mechanized land clearing are necessary to
resume operation. Activities that bring into farming, ranching,
horticultural, or silvicultural use an area not in any of these
uses, or that convert an area from a forested or silvicultural use
to a farming, ranching, or horticultural use, are not part of an
established ongoing operation.
(ii) Minor drainage does not include drainage associated with
the immediate or gradual conversion of a wetland to a nonwetland,
or conversion from 1 wetland use to another. Minor drainage does
not include the construction of a canal, ditch, dike, or other
waterway or structure that drains or otherwise significantly
modifies a stream, lake, or wetland.
(iii) Wetland altered under this subdivision shall not be used
for a purpose other than a purpose described in this section
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.a pond
or lake on private property if the pond or lake does not have a
surface water inlet from or outlet to waters of the United States.
(h) In wetlands that are not waters of the United States,
maintenance, operation, or improvement, which includes
straightening, widening, or deepening, of the following if
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.
(i) (h)
Maintenance of an In wetlands
that are waters of the
United States, maintenance of a private agricultural drain,
regardless of outlet, if all of the following requirements are met:
(i) The maintenance includes only activities that maintain the
location, depth, and bottom width of the drain as constructed or
modified at any time before July 1, 2014.
(ii) The maintenance is performed by the landowner or pursuant
to the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630.
(iii) The maintenance does not include any modification that
results in additional wetland drainage or conversion of a wetland
to a use to which it was not previously subject.
(j) (i)
Maintenance of a drain that was
legally established
and constructed pursuant to the drain code of 1956, 1956 PA 40, MCL
280.1 to 280.630, if the drain was constructed before January 1,
1973 or under a permit issued pursuant to this part. As used in
this subdivision, "maintenance of a drain" means the physical
preservation of the location, depth, and bottom width of a drain
and appurtenant structures to restore the function and approximate
capacity of the drain as constructed or modified at any time before
July 1, 2014, including the placement of spoils removed from the
drain in locations along that drain where spoils have been
previously placed. Maintenance of a drain under this subdivision
does not include any modification that results in additional
wetland drainage or conversion of a wetland to a use to which it
was not previously subject.
(k) (j)
Construction Drainage, other
than minor drainage,
necessary for agricultural production. Except as otherwise provided
in this part, wetland improved under this subdivision after October
1, 1980 shall not be used for nonfarming or nontimber purposes
without a permit from the department.
(l) For wetlands that are not waters of the United States,
construction, improvement, or maintenance of private roads or
driveways and installation or replacement of culverts on private
property for the purpose of improving vehicular access to and
within the private property.
(m) For wetlands that are waters of the United States,
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 ensure that any
adverse effect on the wetland will be minimized.
(n) In wetlands that are not waters of the United States,
maintenance or improvement of public streets, highways, or roads
within the established right-of-way in a manner that minimizes any
adverse effects on the wetland.
(o) (k)
Maintenance In wetlands that
are waters of the United
States, maintenance of public streets, highways, or roads that
meets all of the following requirements:
(i) Does not include any modification that changes the
original location or footprint.
(ii) Is done in a manner that minimizes any adverse effect on
the wetland.
(p) (l) Maintenance
or repair of utility lines and associated
support structures that meets all of the following requirements:
(i) Is done in a manner that minimizes any adverse effect on
the wetland.
(ii) Does not include any modification to the character,
scope, or size of the originally constructed design.
(iii) Does not convert a wetland area to a use to which it was
not previously subject.
For
the purposes of this subdivision and subdivision (m), (q),
"utility line" means any pipe or pipeline used for the
transportation of any gaseous, liquid, liquescent, or slurry
substance, for any purpose, and any cable, line, or wire for the
transmission for any purpose of electrical energy, telephone or
telegraph messages, or radio or television communication.
(q) (m)
Installation of utility lines
having a diameter of 6
inches or less using directional drilling or boring, or knifing-in,
and the placement of poles with minimal (less than 1 cubic yard)
structure support, if the utility lines and poles are installed in
a manner that minimizes any adverse effect on the wetland.
Directional drilling or boring under this subdivision shall meet
all of the following requirements:
(i) The top of the utility line is at least 4 feet below the
soil surface of the wetland. However, if the presence of rock
prevents the placement of the utility line at the depth otherwise
required by this subparagraph, the bottom of the utility line is
not placed higher than the top of the rock.
(ii) The entry and exit holes are located a sufficient
distance from the wetland to ensure that disturbance of the wetland
does not occur.
(iii) The operation does not result in the eruption or release
of any drilling fluids up through the ground and into the wetland
and there is an adequate plan to respond to any release of drilling
mud or other fill material.
(r) (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.
(s) (o)
Placement of biological residuals
from activities,
including the cutting of woody vegetation or the in-place grinding
of tree stumps, performed under this section within a wetland, if
all the biological residuals originate within that wetland.
(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 as part of commercial sand, gravel, or mineral
mining, if the area was not a wetland before excavation. This
exemption from regulation applies until the property on which the
wetland is located meets both of the following requirements:
(i) Is no longer used for excavation as part of commercial
sand, gravel, or mineral mining.
(ii) Is being used for another purpose unrelated to excavation
as part of commercial sand, gravel, or mineral mining.
(b) Construction and operation of a water treatment pond,
lagoon, or storm water facility in compliance with the requirements
of state or federal water pollution control laws.
(c) A diked area associated with a landfill if the landfill
complies with the terms of the landfill construction permit and if
the diked area was not a wetland before diking.
(d) Construction of drains in upland for the sole purpose of
removing excess soil moisture from upland areas that are primarily
in agricultural use.
(e) Construction of roadside ditches in upland for the sole
purpose of removing excess soil moisture from upland.
(f) An agricultural soil and water conservation practice
designed, constructed, and maintained for the purpose of enhancing
water quality.
(5) An area that becomes contiguous to a water body created as
a result of commercial excavation for sand, gravel, or mineral
mining is not subject to regulation under this part solely because
it is contiguous to the created water body. This exemption from
regulation applies until the property on which the wetland is
located meets both of the following requirements:
(a) Is no longer used for excavation as part of commercial
sand, gravel, or mineral mining.
(b) Is being used for another purpose unrelated to excavation
as part of commercial sand, gravel, or mineral mining.
(6) Except as provided in subsection (7), the following
activities are not subject to regulation under this part:
(a) Leveling of sand, removal of vegetation, grooming of soil,
or removal of debris, in an area of unconsolidated material
predominantly composed of sand, rock, or pebbles, located between
the ordinary high-water mark and the water's edge.
(b) Mowing of vegetation between the ordinary high-water mark
and the water's edge.
(7) Subsection (6) does not apply to lands included in the
survey of the delta of the St. Clair River, otherwise referred to
as
the St. Clair flats, Flats,
located within Clay township,
Township,
St. Clair county, County, as
provided for in 1899 PA 175.
(8)
As used in this part, "agricultural drain" means a human-
made
conveyance of water that meets all of the following
requirements:
(a)
Does not have continuous flow.
(b)
Flows primarily as a result of precipitation-induced
surface
runoff or groundwater drained through subsurface drainage
systems.
(c)
Serves agricultural production.
(d)
Was constructed before January 1, 1973, or was constructed
in
compliance with this part or former 1979 PA 203.
(8) As used in this section, "private agricultural drain"
means a human-constructed open ditch located on qualified
agricultural property as defined in section 7dd of the general
property tax act, 1893 PA 206, MCL 211.7dd, and used for the
conveyance of water.
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 that 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.
(c) The extent and permanence of the beneficial or detrimental
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 effects of each proposal in relation to the
cumulative effects created by other existing and anticipated
activities in the watershed.
(e) The probable 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, a
property 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. If all of the following requirements are met, there is
a rebuttable presumption that alternatives located on property not
presently owned by the applicant are not feasible and prudent:
(a) The activity is described in section 30304(a) or (b).
(b)
The activity will not affect not more than 2 acres of
wetland.
(c) The activity is undertaken for the construction or
expansion of a single-family home and attendant features, the
construction or expansion of a barn or other farm building, or the
expansion of a small business facility.
(d) The activity is not covered by a general permit.
(6) Consideration of feasible and prudent alternatives
regarding the size of a proposed structure shall be based on the
footprint of the structure and not the square footage of the
structure.
(7) The choice of and extent of the proposed activity within a
proposed structure shall not be considered in determining feasible
and prudent alternatives.
(8) 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. 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.
(c) The creation of new wetlands, if the permit applicant
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.
(5) If compensatory wetland mitigation is required, in setting
the mitigation ratio the department shall consider the method of
compensatory mitigation, the likelihood of success, differences
between the functions lost at the impacted site and the functions
expected to be produced by the compensatory mitigation project,
temporary losses of aquatic resource functions, the difficulty of
restoring or establishing the desired aquatic resource type and
functions, and the distance between the affected aquatic resource
and the mitigation site.
(6) For agricultural activities in wetlands that are waters of
the United States, a permit applicant may provide for protection
and restoration of the impacted site under a conservation easement
with the department as part of mitigation requirements. A permit
applicant may make a payment into the stewardship fund, if
established under subsection (7), as part of mitigation
requirements, as an alternative to providing financial assurances
required under subsection (4).
(7) The department may establish a stewardship fund in the
state treasury. 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. Money in the fund at the close of the fiscal year
shall remain in the fund and shall not lapse to the general fund.
The department shall be the administrator of the fund for auditing
purposes. The department shall expend money from the fund, upon
appropriation, only to develop mitigation for impacted sites or as
an alternative to financial assurance required under subsection
(4).
(8)
By 1 year after the effective date of the amendatory act
that
added this subsection, July
2, 2014, the department shall
submit to the office of regulatory reform for informal review
revised administrative rules on mitigation that do all of the
following:
(a) Reduce the preference for on-site mitigation.
(b) Allow flexibility in mitigation ratios for uses of
wetlands.
(c) Allow a reduction of mitigation ratios when approved
credits from a wetland mitigation bank are used.
(d) Allow consideration of additional ecologically beneficial
features.
(e) Allow any excess mitigation for any project to be credited
to another project at a later date.
(9) The department shall submit revised administrative rules
that encourage the development of wetland mitigation banks to the
office
of regulatory reform for informal review within 1 year after
the
effective date of the amendatory act that added this
subsection.
by July 2, 2014. The rules shall do all of the
following:
(a) Enlarge mitigation bank service areas. However, a service
area shall be located within the same watershed or ecoregion as the
permitted project or activity, ensure no net loss of the wetland
resources, and protect the predominant wetland functions of the
service area. The department shall consider enlarging the size of
ecoregions for mitigation bank service areas.
(b) Allow earlier release of credits if the benefits of a
mitigation bank have been properly established and the credits are
revocable or covered by a financial assurance.
(c) Allow wetland preservation to be used in areas where
wetland restoration opportunities do not exist, if an unacceptable
disruption of the aquatic resources will not result.
(10) The department shall establish a wetland mitigation bank
funding program under part 52 that provides grants and loans to
eligible municipalities for the purposes of establishing mitigation
banks.
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) The department, after notice and opportunity for a public
hearing, 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
effects on the environment. A general permit 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.
(3) 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.
(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 and may
develop and maintain new general permit and minor project
categories consistent with nationwide permits, as appropriate. The
department may alter the scope of the activities covered under
general permit and minor project categories corresponding to
nationwide permits if any adverse environmental effects will be
minimal.
(6) The department shall develop by October 1, 2013 and
maintain
a general permit for alteration of wetland wetlands that
are waters of the United States for blueberry farming that includes
minimal drainage and earth moving if all of the following
requirements are met:
(a) The wetland will be restored when farming activities in
the wetland cease.
(b) The farmed wetland is placed under conservation easement
protection until the wetland is restored when farming activities
cease.
(c) Activities that convert the wetland to a nonwetland are
prohibited.
(d) Roads, ditches, reservoirs, pump houses, and secondary
support facilities for shipping, storage, packaging, parking, and
similar purposes are prohibited unless authorized under section
30305.
(7) By December 31, 2013, the department shall propose new
general permits or minor project categories for conversion of
wetland
wetlands that are waters of
the United States to blueberry
farming or other agriculture that includes more than minimal
drainage or earth moving.
Sec. 30321. (1) The department shall make or cause to be made
a preliminary inventory of all wetland in this state on a county by
county basis and file the inventory with the agricultural extension
office, register of deeds, and county clerk.
(2)
At least 2 hearings shall be held in each state planning
and
development region created by Executive Directive No. 1973-1.
The
hearing shall be held by the department after publication and
due
notice so that interested parties may comment on the inventory.
After
the hearings, the department shall issue a final inventory,
which
shall be sent to and kept by the agricultural extension
office,
register of deeds, and county clerk. Legislators shall
receive
an inventory of a county or regional classification for
their
districts including both preliminary and final inventories
unless
the legislators request not to receive the materials.
(2) (3)
A person who owns or leases a
parcel of property may
request that the department of environmental quality assess whether
the parcel of property or a portion of the parcel is wetland. The
request shall satisfy all of the following requirements:
(a) Be made on a form provided by the department.
(b) Be signed by the person who owns or leases the property.
(c) Contain a legal description of the parcel and, if only a
portion of the parcel is to be assessed, a description of the
portion to be assessed.
(d) Include a map showing the location of the parcel.
(e) Grant the department or its agent permission to enter on
the parcel for the purpose of conducting the assessment.
(3) (4)
The department shall assess the
parcel within a
reasonable time after the request is made. The department may enter
upon the parcel to conduct the assessment. Upon completion of the
assessment, the department shall provide the person with a written
assessment report. The assessment report shall do all of the
following:
(a) Identify in detail the location of any wetland in the area
assessed.
(b) If wetland is present in the area assessed, describe the
types of activities that require a permit under this part.
(c) If the assessment report determines that the area assessed
or part of the area assessed is not wetland, state that the
department lacks jurisdiction under this part as to the area that
the report determines is not wetland and that this determination is
binding on the department for 3 years from the date of the
assessment.
(d) Contain the date of the assessment.
(e) Advise that the person may request the department to
reassess the parcel or any part of the parcel that the person
believes was erroneously determined to be wetland if the request is
accompanied by evidence pertaining to wetland vegetation, soils, or
hydrology that is different from or in addition to the information
relied upon by the department.
(f) Advise that the assessment report does not constitute a
determination of wetland that may be regulated under local
ordinance or wetland areas that may be regulated under federal law
and advise how a determination of wetland areas regulated under
federal law may be obtained.
(g) List regulatory programs that may limit land use
activities on the parcel, advise that the list is not exhaustive,
and advise that the assessment report does not constitute a
determination of jurisdiction under those programs. The regulatory
programs listed shall be those under the following parts:
(i) Part 31, with respect to floodplains and floodways.
(ii) Part 91.
(iii) Part 301.
(iv) Part 323.
(v) Part 325.
(vi) Part 353.
(4) (5)
A wetland is not contiguous to the
Great Lakes or Lake
St. Clair, an inland lake or pond, or a river or stream if the
department determines that there is no direct physical contact and
no surface water or interflowing groundwater connection to such a
body of water. A person may request that, as part of an assessment,
the department make a determination whether a wetland is not
contiguous. The department shall make the determination in writing
within 30 days after an on-site evaluation.
(5) (6)
The department shall not consider an agricultural
drain,
as defined in section 30305, in determining whether a
wetland
is contiguous to the Great Lakes or Lake St. Clair, an
inland
lake or pond, or a river or stream.The
department shall not
consider a wetland or inland lake or stream that is not waters of
the United States in determining whether a wetland is contiguous to
a wetland or inland lake or stream that is waters of the United
States.
(6) (7)
A drainage structure such as a
culvert, ditch, or
channel, in and of itself, is not a wetland. A temporary
obstruction of drainage, in and of itself, is not a wetland until
the presence of water is of sufficient frequency and duration to be
identified as wetland pursuant to section 30301(2).
(7) (8)
A person may request the department
to reassess any
area
assessed under subsections (2)
and (3) and (4) that the person
believes the department erroneously determined to be wetland. The
requirements
of subsections (2) and (3) and (4) apply to the
request, assessment, and assessment report. However, the request
shall be accompanied by evidence pertaining to wetland vegetation,
soils, or hydrology that is different from or in addition to the
information relied upon by the department. The assessment report
shall not contain the information required by subsection
(4)(e).(3)(e).
(8) (9)
If an assessment report determines
that the area
assessed or part of the area assessed is not a wetland regulated by
the department under this part, then the area determined by the
assessment report not to be a wetland is not a wetland regulated by
the department under this part for a period of 3 years after the
date of the assessment.
(9) (10)
The department may charge a fee for
an assessment
requested
under subsection (3) (2) based upon the cost to the
department of conducting an assessment.
(10) (11)
There shall be no fee for an
assessment under the
blueberry production assistance program.
(11) (12)
The department shall, upon request
of the applicant
and without charge, provide to the applicant a copy of any
delineation forms completed by the department associated with a
permit application.
Sec. 30328. (1) For the purposes of this part, "waters of the
United States" means navigable waters of the United States as
defined in 33 CFR part 329.
(2) For the purposes of this part, the powers, duties,
functions, and responsibilities exercised by the department because
of federal approval of Michigan's permit program under section
404(g) and (h) of the federal water pollution control act, 33 USC
1344,
apply only to "navigable waters" and "waters of the
United
States. "
as defined under section 502(7) of the federal water
pollution
control act, 33 USC 1362, and further refined by
federally
promulgated rules and court decisions that have the full
effect
and force of federal law. Determining whether additional
regulation
is necessary to protect Michigan waters beyond the scope
of
federal law is the responsibility of the Michigan legislature
based
on its determination of what is in the best interest of the
citizens
of this state.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.