March 24, 2010, Introduced by Reps. Warren, Scripps, Roberts, Cushingberry, Kennedy, Liss, Ebli and Smith and referred to the Committee on Great Lakes and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 30301, 30304b, 30311a, and 30329 (MCL
324.30301, 324.30304b, 324.30311a, and 324.30329), section 30301 as
amended and sections 30304b, 30311a, and 30329 as added by 2009 PA
120.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 30301. (1) As used in this part:
(a) "Beach" means the area landward of the shoreline of the
Great Lakes as the term shoreline is defined in section 32301.
(b) "Beach maintenance activities" means any of the following
in the area of Great Lakes bottomlands lying below the ordinary
high-water mark and above the water's edge:
(i) Manual or mechanized leveling of sand.
(ii) Mowing of vegetation.
(iii) Manual de minimis removal of vegetation.
(iv) Grooming of soil.
(v) Construction and maintenance of a path.
(c) "Council" means the wetland advisory council created in
section 30329.
(d) "Debris" means animal or fish carcasses, zebra mussel
shells, dead vegetation, trash, and discarded materials of human-
made origin.
(e)
"Department" means the department of environmental quality
natural resources and environment.
(f) "Director" means the director of the department.
(g) "Environmental area" means an environmental area as
defined in section 32301.
(h) "Exceptional wetland" means wetland that provides physical
or biological functions essential to the natural resources of the
state and that may be lost or degraded if not preserved through an
approved site protection and management plan for the purposes of
providing compensatory wetland mitigation.
(i) "Fill material" means soil, rocks, sand, waste of any
kind, or any other material that displaces soil or water or reduces
water retention potential.
(j) "Grooming of soil" means raking or dragging, pushing, or
pulling metal teeth through the top 4 inches of soil without
disturbance of or destruction to plant roots, for the purpose of
removing debris.
(k) "Landscape level wetland assessment" means the use of
aerial photographs, maps, and other remotely sensed information to
predict and evaluate wetland characteristics and functions in the
context of all of the following:
(i) The wetland's landscape position and hydrologic
characteristics.
(ii) The surrounding landscape.
(iii) The historic extent and condition of the wetland.
(l) "Leveling of sand" means the relocation of sand within
areas being leveled that are predominantly free of vegetation,
including the redistribution, grading, and spreading of sand that
has been deposited through wind or wave action onto upland riparian
property.
(m) "Minor drainage" includes ditching and tiling for the
removal of excess soil moisture incidental to the planting,
cultivating, protecting, or harvesting of crops or improving the
productivity of land in established use for agriculture,
horticulture, silviculture, or lumbering.
(n) "Mowing of vegetation" means the cutting of vegetation to
a height of not less than 2 inches, without disturbance of soil or
plant roots.
(o) "Nationwide permit" means a nationwide permit issued by
the United States army corps of engineers under 72 FR 11091 to
11198 (March 12, 2007), including all general conditions, regional
conditions, and conditions imposed by this state pursuant to a
water quality certification under section 401 of title IV of the
federal water pollution control act, 33 USC 1341, or a coastal zone
management consistency determination or certification under section
307 of the coastal zone management act of 1972, 16 USC 1456.
(p) "Ordinary high-water mark" means the ordinary high-water
mark as specified in section 32502.
(q) "Path" means a temporary access walkway from 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 exposed, nonvegetated bottomlands
or from the upland riparian property.
(r) "Person" means an individual, sole proprietorship,
partnership, corporation, association, municipality, this state, an
instrumentality or agency of this state, the federal government, an
instrumentality or agency of the federal government, or other legal
entity.
(s) "Rapid wetland assessment" means a method for generally
assessing the functions, values, and condition of individual
wetlands based on existing data and field indicators.
(t) "Rare and imperiled wetland" means any of the following:
(i) Great Lakes marsh.
(ii) Southern wet meadow.
(iii) Inland salt marsh.
(iv) Intermittent wetland or boggy seepage wetland.
(v) Coastal plain marsh.
(vi) Interdunal wetland.
(vii) Lakeplain wet prairie.
(viii) Lakeplain wet-mesic prairie.
(ix) Northern wet-mesic prairie.
(x) Wet-mesic prairie.
(xi) Wet-mesic sand prairie.
(xii) Wooded dune and swale complex.
(xiii) (xi) Wet
prairie.
(xiv) Coastal fen.
(xv) (xii) Prairie
fen.
(xvi) (xiii) Northern
fen.
(xvii) (xiv) Patterned
fen.
(xviii) (xv) Poor
fen.
(xix) (xvi) Muskeg.
(xx) (xvii) Rich
conifer swamp.
(xxi) Rich tamarack swamp.
(xxii) (xviii) Relict
conifer swamp.
(xxiii) (xix) Hardwood-conifer
swamp.
(xxiv) (xx) Northern
swamp.
(xxv) (xxi) Southern
swamp.
(xxvi) (xxii) Southern
floodplain forest.
(xxvii) (xxiii) Inundated
shrub swamp.
(u) "Removal of vegetation" means the manual or mechanized
removal of vegetation, other than the manual de minimis removal of
vegetation.
(v) "Water dependent" means requiring access or proximity to
or siting within an aquatic site to fulfill its basic purpose.
(w) "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.
(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.
(2) The department and local units of government shall apply
the technical wetland delineation standards set forth in the United
States army corps of engineers January 1987 wetland delineation
manual, technical report Y-87-1, and appropriate regional United
States army corps of engineers supplements, in identifying wetland
boundaries under this part, including, but not limited to, section
30307.
Sec. 30304b. (1) The department shall pursue an agreement with
the United States army corps of engineers for the corps to issue
state programmatic general permits under section 404(e) of title IV
of the federal water pollution control act, 33 USC 1344, for
activities regulated under this part in waters over which the corps
retains jurisdiction under section 404(g)(1) of title IV of the
federal water pollution control act, 33 USC 1344.
(2) This subsection applies beginning January 1, 2011. This
subsection applies to an application for a permit under this part
only if the application is for an activity or use in waters over
which the corps retains jurisdiction under section 404(g)(1) of
title IV of the federal water pollution control act, 33 USC 1344,
and if the corps has not issued a state programmatic general permit
for the activity or use. In such a case, if requested by the
applicant in the application, all of the following apply:
(a) The department shall approve or deny the application for a
permit under this part not more than 30 days after the corps grants
or denies an application for a permit for the project under section
404(a) of title IV of the federal water pollution control act, 33
USC 1344, or by the end of the processing period otherwise provided
for in section 1301, whichever is later. If a project proposed in a
permit application processed under this subsection also requires
authorization
under 1 or more of parts 31, 301, 315, 323, 325, or
and 353, the requirements of this subdivision also apply to the
department's decision under that part or parts.
(b) Subject to subsection (3), if the corps grants a permit
for the project, the department shall grant a permit under this
part without conditions or limitations other than those imposed by
the corps unless any of the following apply:
(i) The wetland is a rare and imperiled wetland.
(ii) The wetland is regionally significant for the protection
of fisheries, wildlife, or migratory birds.
(iii) The site is described in section 30309(a), (e), or (g).
(iv) The proposed project involves a use or activity not
regulated under section 404(a) of title IV of the federal water
pollution control act, 33 USC 1344.
(v) There is an unresolved violation of this part involving
the property.
(3) The department shall inform the applicant in writing of
the
basis for a finding that the requirements of subsection
(2)(b)(i), (ii), (iii), or (iv), are met or (v) applies and the specific
reasons why denial of the permit or the imposition of additional
conditions or limitations on the permit is consistent with this
part and rules promulgated under this part.
(4) Subsections (2)(b) and (3) apply only to the department's
decision under this part notwithstanding that the project proposed
in the application also requires authorization under 1 or more of
parts 31, 301, 315, 323, 325, and 353.
Sec. 30311a. (1) A guideline, bulletin, interpretive
statement, or form with instructions under this part shall not be
given the force and effect of law. A guideline, bulletin,
interpretive statement, or form with instructions under this part
is not legally binding on the public or the regulated community and
shall not be cited by the department for compliance and enforcement
purposes.
(2)
Within 1 year after the effective date of the 2009
amendatory
act that added this subsection By
November 6, 2010, the
department shall adopt a new guidance document for the evaluation
of feasible and prudent alternatives. The guidance document shall
be consistent with findings and recommendations of the United
States environmental protection agency's region 5 review of the
program under this part. The department shall develop the guidance
document in consultation with interested parties, including the
council.
(3) Before the guidance document under subsection (2) takes
effect, the department shall not deny an application for a permit
required under section 30304 because of the availability of a
feasible and prudent alternative based solely on consideration of
statewide alternatives, higher cost, or reduced profit unless both
of the following apply:
(a) The proposed denial has been reviewed by a department
deputy director.
(b) The department has requested information from the Michigan
economic development corporation and applicable regional and local
economic development authorities relative to the project and
considered the information received.
(4) Before the guidance document under subsection (2) takes
effect, the processing period specified under section 1301 for a
permit required under section 30304 is extended if department staff
have proposed denying the permit for reasons set forth in
subsection
(7) (3). Notwithstanding section 1307(1), the extension
shall be for not more than 45 days.
(5) The department shall not file a request for rule-making
under section 39 of the administrative procedures act, 1969 PA 306,
MCL 24.239, for rules addressing the evaluation of feasible and
prudent alternatives before October 1, 2012.
Sec. 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.
(b) (c)
The director of the department of
agriculture or his
or her designee.
(c) (d)
The following members appointed by
the senate majority
leader:
(i) One individual representing a statewide association of home
builders.
(ii) One individual representing a statewide conservation
organization.
(iii) One individual representing a statewide association of
local units of government.
(iv) One individual representing a statewide association of
manufacturers.
(d) (e)
The following members appointed by
the speaker of the
house of representatives:
(i) One individual representing a statewide environmental
protection organization.
(ii) One individual representing the largest general statewide
farm organization.
(iii) One individual representing a statewide association of
realtors.
(iv) One drain commissioner representing an association of
county drain commissioners.
(e) (f)
The following members appointed by
the governor:
(i) One individual representing a watershed organization.
(ii) One individual representing natural gas or electric
utilities.
(iii) One individual representing a conservation district.
(iv) One individual representing a statewide association of
businesses.
(v) One individual representing the general public.
(vi) A university professor with expertise in wetland science.
(vii) A wetland professional who regularly submits applications
for permits and obtains permits from the department.
(viii) One individual representing Indian tribes.
(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 by
December 6, 2009, except
that the appointment under subsection (1)(e)(viii) shall be made not
later than 30 days after the effective date of the amendatory act
that added that subparagraph.
(3) An appointed member of the council shall serve for a term
of 3 years. If a vacancy occurs on the council, the vacancy shall
be filled for the unexpired term in the same manner as the original
appointment. The appointing officer may remove a member of the
council for incompetence, dereliction of duty, malfeasance,
misfeasance, or nonfeasance in office, or any other good cause.
(4) The first meeting of the council shall be called by the
director of the department. At the first meeting, the council shall
elect from among its members a chairperson and any other officers
that it considers necessary or appropriate. After the first
meeting, the council shall meet at least quarterly, or more
frequently at the call of the chairperson or if requested by 2 or
more members.
(5) A majority of the members of the council constitute a
quorum for the transaction of business at a meeting of the council.
A majority of the members present and serving are required for
official action of the council.
(6) The business that the council may perform shall be
conducted at a public meeting of the council held in compliance
with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275. A
writing prepared, owned, used, in the possession of, or retained by
the council in the performance of an official function is subject
to the freedom of information act, 1976 PA 442, MCL 15.231 to
15.246.
(7) Members of the council shall serve without compensation.
However,
a member of the council representing the department of
natural
resources, or the department of agriculture ,
or the
department
shall serve without additional
compensation.
(8) By October 1, 2010, the council shall submit a report to
the governor, the department, and the standing committees and
appropriations subcommittees of the legislature with primary
responsibility over issues pertaining to natural resources and the
environment. The report shall evaluate and make recommendations on
all of the following:
(a) Improving the overall efficiency of the program under this
part, including all of the following aspects of the permit
application, review, and decision-making process:
(i) The quality of applications submitted.
(ii) The effect of mandatory decision-making time frames on
meeting the purposes of this part, and, if appropriate, the time
frames that should apply to decision-making under this part.
(b) The point in the department's process of decision-making
on a permit application at which the possibility of mitigation
should be considered.
(c) 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 August 15, 2012, the council shall submit a report to
the governor, the department, and the standing committees and
appropriations subcommittees of the legislature with primary
responsibility over issues pertaining to natural resources and the
environment. The report shall evaluate and make recommendations on
all of the following:
(a) Improving coordination and reducing duplication of effort
with the United States army corps of engineers.
(b) Potential long-term changes in program structure,
including all of the following:
(i) Scientific methods to achieve more consistent and accurate
determinations of wetland functions and values for reviewing
applications for permits, watershed planning, conservation plans,
and other purposes. These methods include rapid wetland assessment
and landscape level wetland assessment.
(ii) The appropriate role of local units of government and
conservation districts in the administration of this part.
(iii) A certification process for wetland professionals. The
council shall consider information reported under section 30303b in
evaluating and making recommendations under this subparagraph.
(iv) The definition of wetland and wetland delineation methods,
including the role of hydric soils as a factor in wetland
delineation. In making recommendations under this subparagraph, the
council shall evaluate differences in the state and federal wetland
programs.
(c) The appropriate means and level of program funding under
this part.
(d) Minor project categories and general permits under section
30312b(1)
to (3) 30312b.
(e) The appropriateness of the provisions of section 30304b as
a means of reducing regulatory burdens from dual federal and state
regulation.
(f) The promotion of the development of wetland mitigation
banks.
(g) Ways for the public and interested parties to advise the
department on a continuing basis concerning the administration and
enforcement of this part.
(h) Appropriate regulation of the siting, construction, and
operation of cranberry production activities, in light of the
benefit of cranberry production activities to the economy, the
regulatory approach of other states, and other factors.
(i) The feasible and prudent alternative standard under
section 30311 and consistent application of the standard.
(j) Methods to assist both of the following in successfully
obtaining permits under this part in a timely manner:
(i) Individuals proposing a use or activity for their personal
homesite.
(ii) Nonprofit organizations.
(10) This section is repealed effective April 1, 2013.