HB-5854, As Passed Senate, December 18, 2018

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5854

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending section 30312d (MCL 324.30312d), as amended by 2013 PA

98, and by adding section 30312f.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 30312d. ~~(1) The department shall develop a program to~~

~~facilitate ecologically responsible voluntary wetland restoration~~

~~and enhancement projects in coordination with state, federal,~~

~~tribal, and nongovernmental groups specializing in wetland~~

~~restoration and conservation. The program shall include, but not be~~

~~limited to, enhancing coordination, consistency, and operational~~

~~procedures and improving and streamlining the permitting process,~~

~~to facilitate a net gain in wetland quantity, quality, or both.~~

~~(2)~~ The department shall develop a blueberry production

assistance program to provide wetland delineation and

preapplication services and assistance with avoidance and

minimization. The department shall coordinate this program with the

department of agriculture and rural development. The department

shall also provide education and outreach on wetland regulations

and agricultural activities and assist interested parties with the

development of wetland mitigation banks for the purpose of

providing required compensatory mitigation for agricultural

impacts.

Sec. 30312f. (1) The legislature finds that voluntary

restoration of altered or degraded wetland or former wetland by

qualified agencies and organizations helps to restore lost wetland

functions and services, and is therefore valuable to the people of

this state. Accordingly, the department shall develop a program to

facilitate voluntary wetland restoration projects in coordination

with state, federal, tribal, and nongovernmental agencies and

organizations specializing in wetland restoration and conservation.

The program shall include, but not be limited to, enhancing

coordination, consistency, and operational procedures and improving

and streamlining the permitting process, to facilitate a net

increase in wetland functions and services. The department shall

convene these agencies and organizations at least quarterly to

review the program, suggest and develop improvements, and provide

training and guidance in voluntary wetland restoration.

(2) The department and the department of natural resources

shall develop and lead a voluntary wetland restoration group to

simplify and streamline the permit process for voluntary wetland

restoration projects with the intent of giving greater credence and

flexibility to agencies and organizations specializing in wetland

restoration and conservation. The voluntary wetland restoration

group shall consist of designated staff from the department and the

department of natural resources, working in collaboration on the

review of permit applications. The group shall, after seeking input

from agencies and organizations specializing in wetland restoration

and conservation, develop voluntary wetland restoration permit

applications and guidelines to implement a voluntary wetland

restoration permit program consistent with this section.

(3) A permit is not required for voluntary wetland restoration

activities that meet any of the following:

(a) The section 30305(2)(f) exemption for maintenance or

operation of serviceable structures. Operation of serviceable

structures as used in section 30305(2)(f) includes management of

water levels using serviceable structures.

(b) The section 30305(2)(n) exemption for operation or

maintenance of serviceable dikes and levees.

(4) There is no fee for a preapplication meeting under section

30306b with the voluntary wetland restoration group for a voluntary

wetland restoration project conducted with a person described in

subsection (5). The purpose of such a preapplication meeting is an

outcome-based assessment of a project made by evaluating overall

net increases in wetland functions and services and acreage. Such a

preapplication meeting may include, but is not limited to, any of

the following:

(a) Presentation of project outcomes related to net increases

in wetland functions and services and project purposes and

justifications.

(b) Suggestions that will minimize permitting delays,

including information needed for permit application review.

and services while minimizing other impacts.

(d) Coordination with the United States Environmental

Protection Agency, United States Army Corps of Engineers, and

United States Fish and Wildlife Service, if applicable.

(5) Any of the following persons may apply for a permit under

this part, including authorization to proceed under a general

permit, for a voluntary wetland restoration project:

(a) A state or federal agency, including the department of

natural resources, the United States Fish and Wildlife Service, the

United States Forest Service, or the United States Department of

Agriculture, Natural Resources Conservation Service.

(b) A tribal agency.

mission, purpose, or programs include wetland conservation.

(d) A person that is in partnership through a written

agreement with an entity described in subdivision (a), (b), or (c).

(6) Voluntary wetland restoration applications shall be

processed subject to all of the following:

(a) Not more than 30 days after submission of an application

for a permit for a voluntary wetland restoration project, the

voluntary wetland restoration group shall review the application

and do 1 of the following:

(i) Notify the applicant of the status of the application.

(ii) Recommend issuance of a permit to the department.

(iii) If the application is not administratively complete,

request additional information from the applicant to make the

application administratively complete as provided in part 13.

(b) If the department has not made a permit decision within 60

days after an application for a permit is considered

administratively complete, at the request of the applicant, any

conflict shall be mediated by the joint agency restoration

committee created under subsection (9).

the joint agency restoration committee shall expedite permit review

for voluntary wetland restoration projects to the extent possible.

(d) Except for sections 1313 to 1317, part 13 applies to a

voluntary wetland restoration permit application. Applicable time

periods under part 13 and this section run concurrently.

(7) In reviewing a permit application for a voluntary wetland

restoration project, the voluntary wetland restoration group shall

evaluate the net increase in wetland functions and services from

the project. An applicant shall provide justification for the

asserted net increase in wetland functions and services based on

federal or state agency programmatic authority, published research,

case studies, ecological reference, demonstration projects, or

federal, regional, or statewide wetland or wildlife restoration and

management plans.

(8) The department shall issue a permit for a voluntary

wetland restoration project if the project contributes to a net

increase in wetland functions and services and meets the

requirements of this part and section 404 of title IV of the

federal water pollution control act, 33 USC 1344.

(9) The department shall create a joint agency restoration

committee comprised of the directors or their designees of the

department, the department of natural resources, and the office of

the Great Lakes to mediate permit conflicts regarding voluntary

wetland restoration projects and make a recommendation to the

department. The department shall give serious consideration to

recommendations of the joint agency restoration committee in its

permit decision. The applicant may further request review under the

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

24.328.

(10) The department shall not require compensatory mitigation

for voluntary wetland restoration project activities that result in

a net increase in wetland functions and services.

(11) The department, in cooperation with the department of

natural resources and voluntary wetland restoration agencies and

organizations, shall develop new or modified general permit or

minor project categories for voluntary wetland restoration projects

that address the scope and intent of this section.

(12) A voluntary wetland restoration project may include, but

is not limited to, any of the following activities in altered or

degraded wetland or previously restored wetland if the activity

results in a net increase in wetland functions and services:

(a) The removal of accumulated sediments.

(b) The installation, removal, and maintenance of water

control structures, dikes, and berms; as well as discharges of

dredged or fill material to restore appropriate grade configuration

after water control structures, dikes, and berms are removed.

(d) The removal of existing drainage structures, such as drain

tiles, and the filling, blocking, grading, or reshaping of drainage

ditches to restore wetland hydrology.

(e) The installation of structures or fills necessary to

restore or enhance wetland hydrology.

(f) The construction of open water areas.

(g) Activities needed to establish or reestablish native

vegetation, including plowing or disking for seedbed preparation

and the planting of appropriate species.

(h) The reestablishment of submerged aquatic vegetation.

(i) Mechanized land clearing or other activities to remove

nonnative or invasive vegetation.

(j) The installation of nesting structures and islands, micro

and macro topography reestablishment, dredging, soil manipulation,

controlling, disking, and other activities related to a specific

wetland habitat or species conservation practices.

(k) The installation and removal of temporary coffer dams,

soil mats, and other devices used during voluntary wetland

restoration construction activities.

(l) Construction of ancillary facilities that increase

recreational access, such as a parking lot or boat ramp. However,

such ancillary facilities and their use, alone, do not constitute

an increase in wetland functions and services.

(13) All of the following apply to a voluntary wetland

restoration project:

(a) A change in wetland plant communities that occurs when

wetland hydrology is more fully restored during voluntary wetland

restoration activities is not considered a conversion to another

aquatic habitat type.

(b) The placement of fill in an area of altered or degraded

wetland is not considered a loss of wetland if that area continues

to sustain the characteristics of wetland as described in section

30301(1)(m).

not considered a major discharge as defined in the memorandum of

agreement between the United States Environmental Protection Agency

and the department under section 404 of title IV of the federal

water pollution control act, 33 USC 1344, upon approval by the

United States Environmental Protection Agency of an amendment to

the memorandum so providing.

(14) Former wetland is not regulated under this part unless

the wetland was modified in violation of this part or former 1979

PA 203.

Enacting section 1. This amendatory act takes effect 120 days

after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect

unless House Bill No. 5855 of the 99th Legislature is enacted into

law.