SB-1211, As Passed Senate, December 4, 2018

SUBSTITUTE FOR

SENATE BILL NO. 1211

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 1511, 30101, 30112, 30301, 30304, 30305,

30306, 30307, 30311, 30314, 30316, 30319, 30321, and 32301 (MCL

324.1511, 324.30101, 324.30112, 324.30301, 324.30304, 324.30305,

324.30306, 324.30307, 324.30311, 324.30314, 324.30316, 324.30319,

324.30321, and 324.32301), section 1511 as added by 2011 PA 237,

section 30101 as amended by 2014 PA 351, sections 30112, 30314,

30316, 30319, and 32301 as added by 1995 PA 59, section 30301 as

amended by 2012 PA 247, section 30304 as amended by 2004 PA 325,

sections 30305, 30306, 30311, and 30321 as amended by 2013 PA 98,

and section 30307 as amended by 2006 PA 430.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1511. (1) Subject to subsection (2) and notwithstanding

any other provision of this act, before initiating a civil

enforcement action under this act against a person, ~~holding a~~

~~permit,~~ the department shall ~~contact~~ do both of the following:

(a) Beginning May 1, 2019, provide the person in writing a

list of each specific provision of statute, rule, or permit that

the person is alleged to have violated and a statement of the facts

constituting the violation.

(b) Contact the ~~permittee~~ person and extend an offer for staff

of the department to meet with the person to discuss the potential

civil enforcement action and potential resolution of the issue. If

the ~~permittee~~ person agrees to meet with the department, the

department shall not initiate a civil enforcement action until

after the meeting is held, unless the meeting is not held within a

reasonable time ~~as determined by the department.~~of not less than 60

days.

(2) Subsection (1) does not apply under any of the following

circumstances:

(a) The civil enforcement action is a civil infraction action.

(b) The department determines that the violation that is the

subject of the potential civil enforcement action constitutes an

imminent and substantial endangerment of the public health, safety,

or welfare or of the environment.

(3) As used in this section:

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

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

permit.

(b) "Permit" means a permit or operating license issued under

this act.

Sec. 30101. As used in this part:

(a) "Bottomland" means the land area of an inland lake or

stream that lies below the ordinary high-water mark and that may or

may not be covered by water.

(b) "Bulkhead line" means a line that is established pursuant

to this part beyond which dredging, filling, or construction of any

kind is not allowed without a permit.

embankments, and appurtenant works, that impounds, diverts, or is

designed to impound or divert water.

(d) "Department" means the department of environmental

quality.

(e) "Expand" means to occupy a larger area of an inland lake

or stream than authorized by a permit issued under this part for

marina mooring structures and watercraft moored at the marina.

(f) "Fund" means the land and water management permit fee fund

created in section 30113.

(g) "Height of the dam" means the difference in elevation

measured vertically between the natural bed of an inland lake or

stream at the downstream toe of the dam, or, if it is not across a

stream channel or watercourse, from the lowest elevation of the

downstream toe of the dam, to the design flood elevation or to the

lowest point of the top of the dam, whichever is less.

(h) "Impoundment" means water held back by a dam, dike,

floodgate, or other barrier.

~~(i) "Inland lake or stream" means a natural or artificial~~

~~lake, pond, or impoundment; a river, stream, or creek which may or~~

~~may not be serving as a drain as defined by the drain code of 1956,~~

~~1956 PA 40, MCL 280.1 to 280.630; or any other body of water that~~

~~has definite banks, a bed, and visible evidence of a continued flow~~

~~or continued occurrence of water, including the St. Marys, St.~~

~~Clair, and Detroit rivers. Inland lake or stream does not include~~

~~the Great Lakes, Lake St. Clair, or a lake or pond that has a~~

~~surface area of less than 5 acres.~~

(i) "Inland lake", subject to subdivision (j), means a

permanent artificial or a natural inland lake, pond, or impoundment

that meets both of the following requirements:

(i) Has definite banks, a bed, and visible evidence of a

continued occurrence of water.

(ii) Is either more than 5 acres in size or waters of the

United States as that term is used in section 502(7) of the federal

water pollution control act, 33 USC 1362.

(j) "Inland lake" does not include any of the following:

(i) The Great Lakes or Lake St. Clair.

(ii) A feature used for treating wastewater or storm water.

(iii) Artificial features created in land unregulated by this

part and used for cooling or storing water, farm or livestock

irrigation or watering, log cleaning, swimming, mining or

construction activities, or raising fish and other aquatic species.

(iv) An artificially irrigated or flooded area that will

revert to dry land if the application of water to that area ceases.

(k) ~~(j)~~ "Marina" means a facility that is owned or operated by

a person, extends into or over an inland lake or stream, and offers

service to the public or members of the marina for docking,

loading, or other servicing of recreational watercraft.

(l) ~~(k)~~ "Minor offense" means either of the following

violations of this part if the project involved in the offense is a

minor project or the department determines that restoration of the

affected property is not required:

(i) The failure to obtain a permit under this part.

(ii) A violation of a permit issued under this part.

(m) (l) "Mooring structures" means structures used to moor

watercraft, including, but not limited to, docks, piers, pilings,

mooring anchors, lines and buoys, and boat hoists.

(n) ~~(m)~~ "Ordinary high-water mark" means the line between

upland and bottomland that persists through successive changes in

water levels, below which the presence and action of the water is

so common or recurrent that the character of the land is marked

distinctly from the upland and is apparent in the soil itself, the

configuration of the surface of the soil, and the vegetation. On an

inland lake that has a level established by law, it means the high

established level. Where water returns to its natural level as the

result of the permanent removal or abandonment of a dam, it means

the natural ordinary high-water mark.

(o) ~~(n)~~ "Project" means an activity that requires a permit

pursuant to section 30102.

(p) ~~(o)~~ "Property owners' association" means any group of

organized property owners publishing a directory of their

membership, the majority of which are riparian owners and are

located on the inland lake or stream that is affected by the

proposed project.

(q) ~~(p)~~ "Reconfigure" means to, without expanding the marina,

do either of the following:

(i) Change the location of the dock or docks and other mooring

structures at the marina to occupy an area of the inland lake or

stream that was not previously authorized by a permit issued under

this part.

(ii) Decrease the distance available for ingress and egress to

an outside slip as described in section 30106a.

(r) ~~(q)~~ "Riparian interest area" means that portion of an

inland lake or stream over which a riparian owner has an ownership

interest.

(s) ~~(r)~~ "Riparian owner" means a person who has riparian

rights.

(t) ~~(s)~~ "Riparian rights" means those rights which are

associated with the ownership of the bank or shore of an inland

lake or stream.

(u) ~~(t)~~ "Seasonal structure" includes any type of dock, boat

hoist, ramp, raft, or other recreational structure that is placed

into an inland lake or stream and removed at the end of the boating

season.

(v) ~~(u)~~ "Seawall" means a vertically sloped wall constructed

to break the force of waves and retain soil for the purpose of

shore protection.

(w) "Stream", subject to subdivision (x), means a permanent

artificial or a natural river, stream, or creek that meets either

of the following requirements:

(i) Is a water of the United States as that term is used in

section 502(7) of the federal water pollution control act, 33 USC

1362.

(ii) Has definite banks, a bed, and a continued flow of water.

(x) "Stream" does not include any of the following:

(i) A ditch with ephemeral flow that does not flow directly

from or through a feature regulated under this part.

(ii) An artificially irrigated or flooded area that will

revert to dry land if the application of water to that area ceases.

(iii) An erosional feature including gullies, rills, and other

ephemeral features.

(iv) A storm water or wastewater control feature constructed

to convey, treat, or store storm water or wastewater that is

created on land unregulated by this part.

(y) ~~(v)~~ "Structure" includes a wharf, dock, pier, seawall,

dam, weir, stream deflector, breakwater, groin, jetty, sewer,

pipeline, cable, and bridge.

(z) ~~(w)~~ "Upland" means the land area that lies above the

ordinary high-water mark.

Sec. 30112. (1) The department may commence a civil action in

the circuit court of the county in which a violation occurs to

enforce compliance with this part, to restrain violation of this

part or any action contrary to an order of the department denying a

permit, to enjoin the further performance of, or order the removal

of, any project that is undertaken contrary to this part or after

denial of a permit by the department, or to order the restoration

of the affected area to its prior condition.

(2) In a civil action commenced under this part, the circuit

court, in addition to any other relief granted, may assess a civil

fine of not more than $5,000.00 per day for each day of violation.

(3) Except as provided in subsection (4), a person who

violates this part or a permit issued under this part is guilty of

a misdemeanor, punishable by a fine of not more than $10,000.00 per

day for each day of violation.

(4) A person who commits a minor offense is guilty of a

misdemeanor, punishable by a fine of not more than $500.00 for each

violation. A law enforcement officer may issue and serve an

appearance ticket upon a person for a minor offense pursuant to

sections 9a 9c to 9g of chapter IV of the code of criminal

procedure, ~~Act No. 175 of the Public Acts of 1927, being sections~~

~~764.9a to 764.9g of the Michigan Compiled Laws.~~1927 PA 175, MCL

764.9c to 764.9g.

(5) A person who knowingly makes a false statement,

representation, or certification in an application for a permit or

in a notice or report required by a permit, or a person who

knowingly renders inaccurate any monitoring device or method

required to be maintained by a permit, is guilty of a misdemeanor,

punishable by a fine of not more than $10,000.00 per day for each

day of violation.

(6) Any civil ~~penalty~~ sanction assessed, sought, or agreed to

by the department shall be appropriate to the violation.

(7) A civil or criminal fine authorized to be imposed under

this section for each day of violation shall not be imposed for a

day of violation occurring after commencement of both the

enforcement action and negotiations between the department or the

attorney general or other prosecuting attorney and the violator

over the enforcement action.

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

(a) "Contiguous to" means having a continuous surface water

connection or a similar, natural, direct physical connection with

the Great Lakes, Lake St. Clair, or an inland lake or stream. A

wetland is per se contiguous to an inland lake or stream if it is

located within 500 feet of the ordinary high-water mark of an

inland lake or stream, unless there is no surface water or

groundwater connection. A wetland is per se contiguous to the Great

Lakes or Lake St. Clair if it is located within 1,000 feet of the

ordinary high-water mark of a Great Lake or Lake St. Clair, unless

there is no surface or groundwater connection.

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

quality.

(d) ~~(c)~~ "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.

(e) ~~(d)~~ "Fill material" means soil, rocks, sand, waste of any

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

water retention potential.

(f) "Hydric soil" means a soil that formed under conditions of

saturation, flooding, or ponding long enough during the growing

season to develop anaerobic conditions in the upper part.

(g) ~~(e)~~ "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.

(h) ~~(f)~~ "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.

(i) ~~(g)~~ "Nationwide permit" means a nationwide permit issued

by the United States ~~army corps of engineers~~ 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.

(j) ~~(h)~~ "Ordinary high-water mark" means the ordinary high-

water mark as specified in section 32502.

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

(l) ~~(j)~~ "Rapid wetland assessment" means a method for

generally assessing the functions, values, and condition of

individual wetlands based on existing data and field indicators.

(m) ~~(k)~~ "Rare and imperiled wetland" means any of the

following:

(i) Great Lakes marsh.

(ii) Southern wet meadow.

(iii) Inland salt marsh.

(iv) Intermittent wetland or boggy seepage wetland.

(v) Coastal plain marsh.

(vi) Interdunal wetland.

(vii) Lakeplain wet prairie.

(viii) Lakeplain wet-mesic prairie.

(ix) Northern wet-mesic prairie.

(x) Wet-mesic prairie.

(xi) Wet prairie.

(xii) Prairie fen.

(xiii) Northern fen.

(xiv) Patterned fen.

(xv) Poor fen.

(xvi) Muskeg.

(xvii) Rich conifer swamp.

(xviii) Relict conifer swamp.

(xix) Hardwood-conifer swamp.

(xx) Northern swamp.

(xxi) Southern swamp.

(xxii) Southern floodplain forest.

(xxiii) Inundated shrub swamp.

(n) (l) "Water dependent" means requiring access or proximity

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

(o) ~~(m)~~ "Wetland", subject to subdivision (p), means a land

~~characterized by the presence of~~ or water feature, commonly

referred to as a bog, swamp, or marsh, inundated or saturated by

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

under normal circumstances does support, hydric soils, aquatic

life, and a predominance of wetland vegetation. ~~or aquatic life,~~

~~and is commonly referred to as a bog, swamp, or marsh, and which~~ A

land or water feature is not a wetland unless it is any of the

following:

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

(iii) A water of the United States as that term is used in

section 502(7) of the federal water pollution control act, 33 USC

1362.

(p) "Wetland" does not include any of the following:

(i) Anything excluded from waters of the United States by 40

CFR 230.3(o)(2).

(ii) An artificially irrigated or flooded area that will

revert to dry land if the application of water to that area ceases.

(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~~ Army Corps of Engineers January 1987

wetland delineation manual, technical report Y-87-1, and

appropriate regional United States ~~army corps of engineers~~ Army

Corps of Engineers supplements, in identifying wetland boundaries

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

Sec. 30304. Except as otherwise provided in this part or by a

permit issued by the department under ~~sections 30306 to 30314~~ this

part and pursuant to part 13, a person shall not do any of the

following:

(a) Deposit or permit the placing of fill material in a

wetland.

(b) Dredge, remove, or permit the removal of soil or minerals

from a wetland.

a wetland.

(d) Drain surface water from a wetland.

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, 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, 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. 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.

(h) Maintenance of an 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.

(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.

(j) 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. Borrow material

for the road construction or maintenance shall be taken from upland

sources whenever feasible if the wetland is a water of the United

States. On-site borrow material may be used if the wetland is not a

water of the United States. In determining whether an alternative

will minimize any adverse effect on the wetland, the department

shall consider cost, existing technology, and logistics in light of

overall project purposes.

(k) 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.

(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),

"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.

(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.

(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) 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.

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, located within Clay township, St. Clair

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.

(d) Was constructed before January 1, 1973, or was constructed

in compliance with this part or former 1979 PA 203.

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.

(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. 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 any contiguous inland lake ~~, river,~~ or stream.

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

development of a wetland shall be covered by 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 application fee, as applicable:

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

general permit is issued under section ~~30312,~~ 30312(2), a fee of

$50.00.

(b) For activities included in a minor project category

established under section 30312(1), a fee of $100.00.

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 affecting wetland.

(iv) A subdivision affecting wetland.

(v) A condominium 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 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 shall consider accepting and may accept an

application for a permit if the application is accompanied by a fee

equal to twice the application fee otherwise required under this

section.

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

under this part or denies an application for a permit under this

part, the department shall promptly refund the application fee paid

under this section.

(7) The department may issue a conditional permit before the

expiration of the 20-day period referred to in section 30307 if

emergency conditions warrant a project to protect property or the

public health, safety, or welfare.

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~~ given 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.

(2) The action taken by the department on a permit application

under this part ~~and~~ or 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~~ this 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.

(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~~ A 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 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 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. If requested, the department shall inform a 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; may recommend

approval, modification, or denial of the application to the

department or may notify the department that the local unit of

government declines to make a recommendation. The recommendation of

the local unit of government, if any, shall be made and returned to

the department ~~at any time~~ 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 pertaining to

wetland located 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.

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~~ realize the

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 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~~ that 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.

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,~~ 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. 30314. (1) The department shall require the holder of a

permit to provide information the department reasonably requires to

obtain compliance with this part.

(2) Upon ~~reasonable cause or~~ obtaining a search warrant, an

administrative warrant, issued by the director of the department,

or the consent of the person who owns or controls the premises, the

department may enter on, upon, or through the premises on which an

activity listed in section 30304 is located or on which information

required to be maintained under subsection (1) is located.

Sec. 30316. (1) The attorney general may commence a civil

action for appropriate relief, including injunctive relief upon

request of the department under section 30315(1). An action under

this subsection may be brought in the circuit court for the county

of Ingham or for a county in which the defendant is located,

resides, or is doing business. The court has jurisdiction to

restrain the violation and to require compliance with this part. In

addition to any other relief granted under this section, the court

may impose a civil fine of not more than $10,000.00 per day of

violation. A person who violates an order of the court is subject

to a civil fine not to exceed $10,000.00 for each day of violation.

(2) A person who violates this part is guilty of a misdemeanor

, punishable by a fine of not more than $2,500.00.

(3) A person who willfully or recklessly violates a condition

or limitation in a permit issued by the department under this part,

or a corporate officer who has knowledge of or is responsible for a

violation, is guilty of a misdemeanor , punishable by a fine of not

less than $2,500.00 ~~nor~~ or more than $25,000.00 per day of

violation , or by imprisonment for not more than 1 year, or both. A

person who ~~violates~~ commits a violation described in this section a

second or subsequent time is guilty of a felony , punishable by a

fine of not more than $50,000.00 for each day of violation , or by

imprisonment for not more than 2 years, or both.

(4) In addition to the civil fines and penalties provided

under subsections (1), (2), and (3), the court may order a person

who violates this part to restore as nearly as possible the wetland

that was affected by the violation to its original condition

immediately before the violation. The restoration may include the

removal of fill material deposited in the wetland or the

replacement of soil, sand, or minerals.

(5) A civil or criminal fine authorized to be imposed under

this section for each day of violation shall not be imposed for a

day of violation occurring after commencement of both the

enforcement action and negotiations between the department or the

attorney general or other prosecuting attorney and the violator

over the enforcement action.

(6) Under section 2421c of the revised judicature act, 1961 PA

236, MCL 600.2421c, on stipulation of the parties or motion, a

court that conducts a civil action under this part brought by or

against this state as a party shall award to a prevailing party,

other than this state, the costs and fees incurred by that party in

connection with the civil action, unless this state demonstrates by

clear and convincing evidence that this state's position was

substantially justifiable. However, regardless of whether the

state's position was substantially justifiable, expert professional

witness fees shall be awarded to a landowner that prevails on the

issue of whether the landowner's property is wetland.

Sec. 30319. (1) The department shall promulgate and enforce

rules to implement this part.

(2) If a person is aggrieved by any action or inaction of the

department, the person may request a formal hearing on the matter

involved. The hearing shall be conducted by the department pursuant

to the administrative procedures act of 1969, ~~Act No. 306 of the~~

~~Public Acts of 1969, being sections~~ 1969 PA 306, MCL 24.201 to

24.328. ~~of the Michigan Compiled Laws.~~

(3) Under section 123 of the administrative procedures act of

1969, 1969 PA 306, MCL 24.323, on stipulation of the parties or

motion, the presiding officer who conducts a contested case under

this part shall award to a prevailing party, other than the

department, the costs and fees incurred by the party in connection

with the contested case, unless the department demonstrates by

clear and convincing evidence that the department's position was

substantially justifiable. However, regardless of whether the

department's position was substantially justifiable, expert

professional witness fees shall be awarded to a landowner that

prevails on the issue of whether the landowner's property is

wetland.

(4) ~~(3)~~ A determination, action, or inaction by the department

following the hearing is subject to judicial review as provided in

~~Act No. 306 of the Public Acts of 1969.~~the administrative

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(5) ~~(4)~~ This section does not limit the right of a wetland

owner to institute proceedings in any circuit of the circuit court

of the state against any person ~~when~~ if necessary to protect the

wetland owner's rights.

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.

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.

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 continuous surface water

connection to or similar, natural, direct physical ~~contact and no~~

~~surface water or interflowing groundwater~~ connection to with 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 to the Great Lakes, Lake St. Clair, an inland lake, or a

stream. 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.

(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. 32301. As used in this part:

(a) "Connecting waterway" means the St. Marys river, Detroit

river, St. Clair river, or Lake St. Clair.

(b) "Environmental area" means an area of the shoreland

determined by the department on the basis of studies and surveys to

be necessary for the preservation and maintenance of fish and

wildlife.

determined by the department on the basis of studies and surveys to

be subject to erosion.

(d) "Land to be zoned or regulated" or "land to be zoned"

means the land in this state that borders or is adjacent to a Great

Lake or a connecting waterway and that, except for flood risk

areas, is situated within 1,000 feet landward from the ordinary

high-water mark as defined in section 32501, land bordering or

adjacent to waters affected by levels of the Great Lakes landward

of the ordinary high-water mark as defined by section ~~30101(f),~~

30101, and land between the ordinary high-water mark and the

water's edge.

(e) "Shoreland" means the land, water, and land beneath the

water that is in close proximity to the shoreline of a Great Lake

or a connecting waterway.

(f) "Shoreline" means that area of the shorelands where land

and water meet.

(g) "Flood risk area" means the area of the shoreland that is

determined by the department on the basis of studies and surveys to

be subject to flooding from effects of levels of the Great Lakes

and is not limited to 1,000 feet.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.