June 8, 2006, Introduced by Reps. Pastor, Moore, Garfield, Gosselin, Stakoe, Hansen, Brandenburg, Shaffer, Amos, Marleau, Jones, Stahl, Elsenheimer, Hoogendyk, Palmer, Sheen, Wenke, Booher, Vander Veen, Casperson, Caul, Moolenaar, Acciavatti and Baxter and referred to the Committee on Natural Resources, Great Lakes, Land Use, and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 30301, 30306, and 30307 (MCL 324.30301,
324.30306, and 324.30307), sections 30301 and 30306 as amended by
2003 PA 14 and section 30307 as amended by 2004 PA 325.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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.
(c) "Debris" means animal or fish carcasses, zebra mussel
shells, dead vegetation, trash, and discarded materials of human-
made origin.
(d) "Department" means the department of environmental
quality.
(e) "Director" means the director of the department.
(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" means raking or dragging, pushing, or
pulling metal teeth through the top 4 inches of soil without
disturbance of or destruction to plant roots, for the purpose of
removing debris.
(i) "Leveling of sand" means the relocation of sand within
areas being leveled that are predominantly free of vegetation,
including the redistribution, grading, and spreading of sand that
has been deposited through wind or wave action onto upland riparian
property.
(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.
(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.
(l) "Ordinary high-water mark" means that
term as it is
defined
the ordinary high-water mark
as specified in section
32502.
(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.
(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.
(o) "Qualified consultant" means an individual who meets all
of the following requirements:
(i) Is certified as a professional wetlands scientist by the
society of wetlands consultants.
(ii) Has been permanently employed as a wetlands consultant in
this state for at least the preceding 3 years.
(iii) Has participated within the preceding 3 years in
preparation of a wetland delineation that has been submitted to the
department for the purposes of this part.
(p) (o)
"Removal of vegetation" means the manual
or
mechanized removal of vegetation, other than the manual de minimis
removal of vegetation.
(q) (p)
"Wetland" means land characterized by the
presence
of water at a frequency and duration sufficient to support, and
that under normal circumstances does support, wetland vegetation or
aquatic life, and is commonly referred to as a bog, swamp, or marsh
and which is any of the following:
(i) Contiguous to the Great Lakes or Lake St. Clair, an inland
lake or pond, or a river or stream.
(ii) Not contiguous to the Great Lakes, an inland lake or pond,
or a river or stream; and more than 5 acres in size; except this
subparagraph shall not be of effect, except for the purpose of
inventorying, in counties of less than 100,000 population until the
department certifies to the commission it has substantially
completed its inventory of wetlands in that county.
(iii) Not contiguous to the Great Lakes, an inland lake or pond,
or a river or stream; and 5 acres or less in size if the department
determines that protection of the area is essential to the
preservation of the natural resources of the state from pollution,
impairment, or destruction and the department has so notified the
owner; except this subparagraph may be utilized regardless of
wetland size in a county in which subparagraph (ii) is of no effect;
except for the purpose of inventorying, at the time.
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.
(c) A description of the wetland on which the use or
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 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) An application under subsection (1) may be accompanied by
1 of the following:
(a) A wetland delineation prepared by a qualified consultant.
The department may accept the delineation as determinative.
(b) An offer to have a wetland delineation prepared by a
qualified consultant identified in the offer. Unless the department
rejects the offer within 7 business days after receipt of the
permit application, the offer shall be considered to be accepted.
If the offer is accepted, the processing period for the permit
application under part 13 is tolled until the permit applicant
submits a wetland delineation by the identified qualified
consultant or notifies the department in writing that the applicant
will not submit a wetland delineation. If the offer is accepted by
the department and the permit applicant submits a wetland
delineation by the identified qualified consultant, the department
shall accept the delineation as determinative.
(3) (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.
(4) (3)
Except as provided in subsections (4)
and (5)
and
(6), an application for a permit submitted under subsection (1)
shall be accompanied by the following fee:
(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), in the area between the ordinary
high-water mark and the water's edge, a fee of $50.00.
(c) For a major project, including any of the following, a fee
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 wetland.
(iv) A subdivision impacting wetland.
(v) A condominium impacting wetland.
(d) For all other projects, a fee of $500.00.
(5) (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.
(c) Part 323.
(d) Part 325.
(e) Section 117 of the land division act, 1967 PA 288, MCL
560.117.
(6) (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 required under this section.
(7) (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. 30307. (1) Within 60 days after receipt of the completed
application and fee, the department may hold a hearing. If a
hearing is held, it shall be held in the county where the wetland
to which the permit is to apply is located. Notice of the hearing
shall be made in the same manner as for the promulgation of rules
under the administrative procedures act of 1969, 1969 PA 306, MCL
24.201 to 24.328. The department may approve or disapprove a permit
application without a public hearing unless a person requests a
hearing in writing within 20 days after the mailing of notification
of the permit application as required by subsection (3) or unless
the department determines that the permit application is of
significant impact so as to warrant a public hearing. The
department shall not disapprove a permit application unless the
department has inspected the premises where the activity described
in section 30304 is proposed to take place. This inspection
requirement does not apply if the department is denied entry to the
premises.
(2) The action taken by the department on a permit application
under this part and part 13 may be appealed pursuant to the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328. A property owner may, after exhaustion of administrative
remedies, bring appropriate legal action in a court of competent
jurisdiction.
(3) A person who desires notification of pending permit
applications may make a written request to the department
accompanied by an annual fee of $25.00, which shall be credited to
the general fund of the state. The department shall prepare a
biweekly list of the applications made during the previous 2 weeks
and shall promptly mail copies of the list for the remainder of the
calendar year to the persons who requested notice. The biweekly
list shall state the name and address of each applicant, the
location of the wetland in the proposed use or development,
including the size of both the proposed use or development and of
the wetland affected, and a summary statement of the purpose of the
use or development.
(4) A local unit of government may regulate wetland within its
boundaries, by ordinance, only as provided under this part. This
subsection is supplemental to the existing authority of a local
unit of government. An ordinance adopted by a local unit of
government pursuant to this subsection shall comply with all of the
following:
(a) The ordinance shall not provide a different definition of
wetland than is provided in this part, except that a wetland
ordinance may regulate wetland of less than 5 acres in size.
(b) If the ordinance regulates wetland that is smaller than 2
acres in size, the ordinance shall comply with section 30309.
(c) The ordinance shall comply with sections 30308 and 30310.
(d) The ordinance shall not require a permit for uses that are
authorized without a permit under section 30305, and shall
otherwise comply with this part.
(5) Each local unit of government that adopts an ordinance
regulating wetlands under subsection (4) shall notify the
department.
(6) A local unit of government that adopts an ordinance
regulating wetlands shall use an application form supplied by the
department, and each person applying for a permit shall make
application directly to the local unit of government. Upon receipt,
the local unit of government shall forward a copy of each
application along with any state fees that may have been submitted
under section 30306 to the department. The department shall begin
reviewing the application as provided in this part. The local unit
of government shall review the application pursuant to its
ordinance and shall modify, approve, or deny the application within
90
days after receipt. If a municipality local unit of government
does not approve or disapprove the permit application within the
time period provided by this subsection, the permit application
shall
be considered approved, and the municipality local unit of
government shall be considered to have made the determinations as
listed in section 30311. The denial of a permit shall be
accompanied by a written statement of all reasons for denial. The
failure to supply complete information with a permit application
may
be reason for denial of a permit.
The If requested, the
department shall inform any interested person whether or not a
local unit of government has an ordinance regulating wetlands. If
the department receives an application with respect to a wetland
located in a local unit of government that has an ordinance
regulating wetlands, the department immediately shall forward the
application to the local unit of government, which shall modify,
deny, or approve the application under this subsection. The local
unit of government shall notify the department of its decision. The
department shall proceed as provided in this part.
(7) If a local unit of government does not have an ordinance
regulating wetlands, the department shall promptly send a copy of
the permit application to the local unit of government where the
wetland is located. The local unit of government may review the
application; may hold a hearing on the application; and may
recommend approval, modification, or denial of the application to
the department. The recommendations of the local unit of government
shall be made and returned to the department within 45 days after
the local unit of government's receipt of the permit application.
(8) In addition to the requirements of subsection (7), the
department shall notify the local unit of government that the
department has issued a permit under this part within the
jurisdiction of that local unit of government within 15 days of
issuance of the permit. The department shall enclose a copy of the
permit with the notice.