House Introduced Bill 4118

HOUSE BILL No. 4118

January 31, 2001, Introduced by Reps. Basham, Kolb, Schermesser, Bernero and Lemmons and referred to the Committee on Conservation and
Outdoor Recreation.

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 30301, 30307, and 30309 (MCL 324.30301,

324.30307, and 324.30309), sections 30301 and 30309 as added by

1995 PA 59 and section 30307 as amended by 1998 PA 228, and by

adding sections 30301a and 30324.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1
Sec. 30301. As used in this part:

2
(A) "CONSERVATION EASEMENT" MEANS THAT TERM AS DEFINED IN

3
SECTION 2140.

4
(B) "DEPARTMENT" MEANS THE DEPARTMENT OF ENVIRONMENTAL

5
QUALITY.

6
(C) (a) "Fill material" means PILINGS, soil, rocks, sand,

7
waste of any kind, or any other material that displaces soil or

8
water or reduces water retention potential.

00886'01 TMV 2

1
(D) (b) "Minor drainage" includes ditching and tiling for

2
the removal of excess soil moisture incidental to the planting,

3
cultivating, protecting, or harvesting of crops or improving the

4
productivity of land in established use for agriculture, horti-

5
culture, silviculture, or lumbering.

6
(E) (c) "Person" means an individual, sole proprietorship,

7
partnership, corporation, association, municipality, this state

8
, and OR AN instrumentality or agency of this state, the fed-

9
eral government , or an instrumentality or agency of the fed-

10
eral government, or ANY other legal entity.

11
(F) "VERNAL POND" MEANS A NATURALLY OCCURRING CONFINED

12
DEPRESSION OF ANY SIZE WITHOUT A PERMANENT ABOVEGROUND OUTLET

13
THAT MEETS ALL OF THE FOLLOWING REQUIREMENTS:

14
(i) HAS SURFACE WATER AT ANY TIME DURING THE GROWING

15
SEASON.

16
(ii) PROVIDES HABITAT FOR AMPHIBIANS OR OTHER SPECIES DETER-

17
MINED BY THE DEPARTMENT OF NATURAL RESOURCES TO DEPEND UPON

18
VERNAL PONDS FOR ALL OR PART OF THEIR LIFE CYCLE.

19
(iii) LACKS AN ADULT FISH POPULATION.

20
(iv) LACKS ABUNDANT HERBACEOUS VEGETATION.

21
(G) (d) "Wetland" means land characterized by the presence

22
of water at a frequency and duration sufficient to support, and

23
that under normal circumstances does support, wetland vegetation

24
or aquatic life, and is commonly referred to as a bog, swamp,

25
VERNAL POND, or marsh and which is any of the following:

26
(i) Contiguous to the Great Lakes or Lake St. Clair, an

27
inland lake or pond, or a river or stream.

00886'01 3

1
(ii) Not contiguous to the Great Lakes, an inland lake or

2
pond, or a river or stream; and more than 5 acres 1 ACRE in

3
size; except this subparagraph shall not be of effect, except for

4
the purpose of inventorying, in counties of less than 100,000

5
population until the department certifies to the commission it

6
has substantially completed its inventory of wetlands in that

7
county.

8
(iii) Not contiguous to the Great Lakes, an inland lake or

9
pond, or a river or stream; and 5 acres 1 ACRE or less in size

10
if, SUBJECT TO SECTION 30301A, the department determines that

11
protection of the area is essential to the preservation of the

12
natural resources of the state from pollution, impairment, or

13
destruction and the department has so notified the owner; except

14
this subparagraph may be utilized regardless of wetland size in a

15
county in which subparagraph (ii) is of no effect; except for the

16
purpose of inventorying, at the time.

17
SEC. 30301A. (1) TO DETERMINE THAT PROTECTION OF AN AREA

18
THAT IS NOT CONTIGUOUS TO THE GREAT LAKES, AN INLAND LAKE OR

19
POND, OR A RIVER OR STREAM AND THAT IS 1 ACRE OR LESS IN SIZE IS

20
ESSENTIAL TO THE PRESERVATION OF THE NATURAL RESOURCES OF THIS

21
STATE AS PROVIDED IN SECTION 30301(G)(iii), THE DEPARTMENT MUST

22
FIND THAT 1 OR MORE OF THE FOLLOWING APPLY TO THE SITE:

23
(A) THE SITE SUPPORTS STATE OR FEDERAL ENDANGERED OR THREAT-

24
ENED PLANTS, FISH, OR WILDLIFE APPEARING ON A LIST SPECIFIED IN

25
SECTION 36505.

26
(B) THE SITE REPRESENTS WHAT IS IDENTIFIED AS A STATE RARE

27
OR UNIQUE ECOSYSTEM.

00886'01 4

1
(C) THE SITE SUPPORTS PLANTS OR ANIMALS OF AN IDENTIFIED

2
STATE IMPORTANCE.

3
(D) THE SITE PROVIDES GROUNDWATER RECHARGE DOCUMENTED BY A

4
PUBLIC AGENCY.

5
(E) THE SITE PROVIDES FLOOD AND STORM WATER CONTROL BY THE

6
HYDROLOGIC ABSORPTION AND STORAGE CAPACITY OF THE WETLAND.

7
(F) THE SITE PROVIDES WILDLIFE HABITAT BY PROVIDING BREED-

8
ING, NESTING, OR FEEDING GROUNDS OR COVER FOR WATERFOWL, INCLUD-

9
ING MIGRATORY WATERFOWL, AND RARE, THREATENED, OR ENDANGERED

10
WILDLIFE SPECIES.

11
(G) THE SITE PROTECTS VALUABLE WATERSHEDS AND GROUNDWATER,

12
INCLUDING THE RECHARGING OF GROUNDWATER SUPPLIES.

13
(H) THE SITE PROVIDES POLLUTION TREATMENT BY SERVING AS A

14
BIOLOGICAL AND CHEMICAL OXIDATION BASIN.

15
(I) THE SITE PROVIDES EROSION CONTROL BY SERVING AS A SEDI-

16
MENTATION AREA AND FILTERING BASIN, ABSORBING SILT AND ORGANIC

17
MATTER.

18
(J) THE SITE PROVIDES SOURCES OF NUTRIENTS IN AQUATIC FOOD

19
CYCLES AND NURSERY GROUNDS AND SANCTUARIES FOR FISH.

20
(2) A PERSON MAY REQUEST THE DEPARTMENT IN WRITING TO MAKE A

21
DETERMINATION UNDER SUBSECTION (1) WITH RESPECT TO AN AREA

22
DESCRIBED IN SUBSECTION (1). IF THE PERSON MAKING THE REQUEST IS

23
NOT THE OWNER OF THE PROPERTY WHERE THE AREA IS LOCATED, WITHIN 1

24
MONTH AFTER RECEIPT OF THE REQUEST, THE DEPARTMENT SHALL, IN

25
WRITING, NOTIFY THE OWNER THAT THE REQUEST HAS BEEN RECEIVED.

26
THE NOTICE SHALL EXPLAIN THAT THE OWNER MAY, WITHIN 3 MONTHS

27
AFTER THE NOTICE IS SENT, SUBMIT TO THE DEPARTMENT IN WRITING

00886'01 5

1
INFORMATION RELEVANT TO THE DEPARTMENT'S DETERMINATION. IN

2
MAKING ITS DETERMINATION, THE DEPARTMENT SHALL CONSIDER INFORMA-

3
TION SUBMITTED BY THE OWNER, RELEVANT WRITTEN INFORMATION SUBMIT-

4
TED BY THE REQUESTOR WITH THE REQUEST, AND OTHER INFORMATION THE

5
DEPARTMENT CONSIDERS RELEVANT. THE DEPARTMENT SHALL MAKE THE

6
DETERMINATION AND NOTIFY THE REQUESTOR AND OWNER OF THE DETERMI-

7
NATION IN WRITING WITHIN 5 MONTHS AFTER RECEIPT OF THE REQUEST.

8
Sec. 30307. (1) Within 60 days after receipt of the com-

9
pleted application and fee, the department may hold a hearing.

10
If a hearing is held, it shall be held in the county where the

11
wetland to which the permit is to apply is located. Notice of

12
the hearing shall be made in the same manner as for the promulga-

13
tion of rules under the administrative procedures act of 1969,

14
1969 PA 306, MCL 24.201 to 24.328. The department may approve or

15
disapprove a permit application without a public hearing unless a

16
person requests a hearing in writing within 20 days after the

17
mailing of notification of the permit application as required by

18
subsection (3) or unless the department determines that the

19
permit application is of significant impact SO AS to warrant a

20
public hearing.

21
(2) If a hearing is not held, the department shall approve

22
or disapprove the permit application within 90 days after the

23
completed permit application is filed with the department. If a

24
hearing is held, the department shall approve or disapprove the

25
permit application within 90 days after the conclusion of the

26
hearing. The department may approve a permit application,

27
request modifications in the application, or deny the permit

00886'01 6

1
application. If the department approves the permit application,

2
the department shall prepare and send the permit to the

3
applicant. If the department denies, or requests a modification

4
of, the permit application, the department shall send notice of

5
the denial or modification request and the reasons for the denial

6
or the modifications requested to the applicant. Department

7
approval may include the issuance of a permit containing condi-

8
tions necessary for compliance with this part. If the department

9
does not approve or disapprove the permit application within the

10
time provided by this subsection, the permit application shall be

11
considered approved, and the department shall be considered to

12
have made the determinations required by section 30311. The

13
action taken by the department may be appealed pursuant to the

14
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

15
24.328. A property owner may, after exhaustion of administrative

16
remedies, bring appropriate legal action in a court of competent

17
jurisdiction.

18
(3) A person who desires notification of pending permit

19
applications may make a written request to the department accom-

20
panied by an annual fee of $25.00, which shall be credited to the

21
general fund of the state. The department shall prepare a

22
biweekly list of the applications made during the previous 2

23
weeks and shall promptly mail copies of the list for the remain-

24
der of the calendar year to the persons who requested notice.

25
The biweekly list shall state the name and address of each appli-

26
cant, the location of the wetland in the proposed use or

27
development, including the size of both the proposed use or

00886'01 7

1
development and of the wetland affected, and a summary statement

2
of the purpose of the use or development.

3
(4) A local unit of government may regulate wetland within

4
its boundaries, by ordinance, only as provided under this part.

5
This subsection is supplemental to the existing authority of a

6
local unit of government. An ordinance adopted by a local unit

7
of government pursuant to this subsection shall comply with all

8
of the following:

9
(a) The ordinance shall not provide a different definition

10
of wetland than is provided in this part, except that a wetland

11
ordinance may regulate wetland of less than 5 acres 1 ACRE OR

12
LESS in size.

13
(b) If the ordinance regulates wetland that is smaller than

14
2 acres 1 ACRE OR LESS in size, the ordinance shall comply with

15
section 30309.

16
(c) The ordinance shall comply with sections 30308 and

17
30310.

18
(d) The ordinance shall not require a permit for uses that

19
are authorized without a permit under section 30305, and shall

20
otherwise comply with this part.

21
(5) Each local unit of government that adopts an ordinance

22
regulating wetlands under subsection (4) shall notify the

23
department.

24
(6) A local unit of government that adopts an ordinance reg-

25
ulating wetlands shall use an application form supplied by the

26
department, and each A person applying for a permit shall make

27
application SHALL APPLY directly to the local unit of government

00886'01 8

1
FOR A PERMIT. Upon receipt, the local unit of government shall

2
forward a copy of each application along with any state fees that

3
may have been submitted under section 30306 to the department.

4
The department shall begin reviewing the application as provided

5
in this part. The local unit of government shall review the

6
application pursuant to its ordinance and shall modify, approve,

7
or deny the application within 90 days after receipt. If a

8
municipality does not approve or disapprove the permit applica-

9
tion within the time period provided by this subsection, the

10
permit application shall be considered approved, and the munici-

11
pality shall be considered to have made the determinations as

12
listed in section 30311. The denial of a permit shall be accom-

13
panied by a written statement of all reasons for denial. The

14
failure to supply complete information with a permit application

15
may be reason for denial of a permit. The UPON REQUEST, THE

16
department shall inform any interested A person whether or not

17
a local unit of government has an ordinance regulating wetlands.

18
If the department receives an application with respect to a wet-

19
land which is located in a local unit of government which has

20
an ordinance regulating wetlands, the department immediately

21
shall forward the application to the local unit of government,

22
which shall modify, deny, or approve the application under this

23
subsection. The local unit of government shall notify the

24
department of its decision. The department shall proceed as pro-

25
vided in this part.

26
(7) If a local unit of government does not have an ordinance

27
regulating wetlands, the department shall promptly send a copy of

00886'01 9

1
the permit application to the local unit of government where the

2
wetland is located. The local unit of government may review the

3
application; may hold a hearing on the application; and may rec-

4
ommend approval, modification, or denial of the application to

5
the department. The recommendations of the local unit of govern-

6
ment shall be made and returned to the department within 45 days

7
after the local unit of government's receipt of the permit

8
application. The department shall approve, modify, or deny the

9
application as provided in this part.

10
(8) In addition to the requirements of subsection (7), the

11
department shall notify the local unit of government that the

12
department has issued a permit under this part within the juris-

13
diction of that local unit of government within 15 days of

14
AFTER issuance of the permit. The department shall enclose a

15
copy of the permit with the notice.

16
Sec. 30309. A local unit of government that has adopted an

17
ordinance under section 30307(4) that regulates wetland within

18
its jurisdiction that is less than 2 acres 1 ACRE OR LESS in

19
size shall comply with this section. Upon application for a wet-

20
land use permit in a wetland that is less than 2 acres 1 ACRE

21
OR LESS in size, the local unit of government shall approve the

22
permit unless the local unit of government determines that the

23
wetland is essential to the preservation of the natural resources

24
of the local unit of government and provides these findings, in

25
writing, to the permit applicant stating the reasons for this

26
determination. In making TO MAKE this determination, the local

00886'01 10

1
unit of government must find that 1 or more of the following

2
exist at the particular site:

3
(a) The site supports state or federal endangered or threat-

4
ened plants, fish, or wildlife appearing on a list specified in

5
section 36505.

6
(b) The site represents what is identified as a locally rare

7
or unique ecosystem.

8
(c) The site supports plants or animals of an identified

9
local importance.

10
(d) The site provides groundwater recharge documented by a

11
public agency.

12
(e) The site provides flood and storm control by the

13
hydrologic absorption and storage capacity of the wetland.

14
(f) The site provides wildlife habitat by providing breed-

15
ing, nesting, or feeding grounds or cover for forms of

16
wildlife, waterfowl, including migratory waterfowl, and rare,

17
threatened, or endangered wildlife species.

18
(g) The site provides protection of subsurface water

19
resources and provision of PROTECTS valuable watersheds and

20
GROUNDWATER, INCLUDING THE recharging OF groundwater supplies.

21
(h) The site provides pollution treatment by serving as a

22
biological and chemical oxidation basin.

23
(i) The site provides erosion control by serving as a sedi-

24
mentation area and filtering basin, absorbing silt and organic

25
matter.

00886'01 11

1
(j) The site provides sources of nutrients in water

2
AQUATIC food cycles and nursery grounds and sanctuaries for

3
fish.

4
SEC. 30324. THE DEPARTMENT OF NATURAL RESOURCES SHALL

5
ESTABLISH A VERNAL POND CONSERVATION AND EDUCATION PROGRAM.

6
UNDER THIS PROGRAM, THE DEPARTMENT OF NATURAL RESOURCES SHALL DO

7
ALL OF THE FOLLOWING:

8
(A) EDUCATE THE GENERAL PUBLIC AND OWNERS OF LAND CONTAINING

9
VERNAL PONDS ON THE SIGNIFICANT PLANT, WILDLIFE, AND ECOSYSTEM

10
VALUES SUPPORTED BY VERNAL PONDS.

11
(B) PROMOTE THE IDENTIFICATION AND PROTECTION OF VERNAL

12
PONDS.

13
(C) PROVIDE RECOGNITION TO OWNERS OF LAND CONTAINING VERNAL

14
PONDS WHO CERTIFY IN WRITING THAT THEY WILL PRESERVE THESE VERNAL

15
PONDS FOR A PERIOD OF NOT LESS THAN 10 YEARS.

16
(D) OBTAIN CONSERVATION EASEMENTS FROM WILLING OWNERS OF

17
LAND CONTAINING VERNAL PONDS TO PROTECT VERNAL PONDS AND VERNAL

18
POND BUFFER ZONES.

00886'01 Final page. TMV