HOUSE BILL No. 5024 October 21, 1999, Introduced by Reps. Basham, Martinez, Neumann, DeHart, Hale, Quarles, Daniels and Schermesser 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. 03511'99 * 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, andOR AN instrumentality or agency of this state, the fed- 9 eral government, or an instrumentality or agency of the federal 10 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. 03511'99 * 3 1 (ii) Not contiguous to the Great Lakes, an inland lake or 2 pond, or a river or stream; and more than5 acres1 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; and5 acres1 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 EXIST AT THE PARTICULAR 23 SITE: 24 (A) THE SITE SUPPORTS STATE OR FEDERAL ENDANGERED OR THREAT- 25 ENED PLANTS, FISH, OR WILDLIFE APPEARING ON A LIST SPECIFIED IN 26 SECTION 36505. 03511'99 * 4 1 (B) THE SITE REPRESENTS WHAT IS IDENTIFIED AS A STATE RARE 2 OR UNIQUE ECOSYSTEM. 3 (C) THE SITE SUPPORTS PLANTS OR ANIMALS OF AN IDENTIFIED 4 STATE IMPORTANCE. 5 (D) THE SITE PROVIDES GROUNDWATER RECHARGE DOCUMENTED BY A 6 PUBLIC AGENCY. 7 (E) THE SITE PROVIDES FLOOD AND STORM CONTROL BY THE HYDRO- 8 LOGIC ABSORPTION AND STORAGE CAPACITY OF THE WETLAND. 9 (F) THE SITE PROVIDES WILDLIFE HABITAT BY PROVIDING BREED- 10 ING, NESTING, OR FEEDING GROUNDS OR COVER FOR FORMS OF WILDLIFE, 11 WATERFOWL, INCLUDING MIGRATORY WATERFOWL, AND RARE, THREATENED, 12 OR ENDANGERED WILDLIFE SPECIES. 13 (G) THE SITE PROVIDES PROTECTION OF SUBSURFACE WATER 14 RESOURCES AND PROVISION OF VALUABLE WATERSHEDS AND RECHARGING 15 GROUNDWATER SUPPLIES. 16 (H) THE SITE PROVIDES POLLUTION TREATMENT BY SERVING AS A 17 BIOLOGICAL AND CHEMICAL OXIDATION BASIN. 18 (I) THE SITE PROVIDES EROSION CONTROL BY SERVING AS A SEDI- 19 MENTATION AREA AND FILTERING BASIN, ABSORBING SILT AND ORGANIC 20 MATTER. 21 (J) THE SITE PROVIDES SOURCES OF NUTRIENTS IN WATER FOOD 22 CYCLES AND NURSERY GROUNDS AND SANCTUARIES FOR FISH. 23 (2) A PERSON MAY REQUEST THE DEPARTMENT IN WRITING TO MAKE A 24 DETERMINATION UNDER SUBSECTION (1) WITH RESPECT TO AN AREA 25 DESCRIBED IN SUBSECTION (1). IF THE PERSON MAKING THE REQUEST IS 26 NOT THE OWNER OF THE PROPERTY WHERE THE AREA IS LOCATED, WITHIN 1 27 MONTH AFTER RECEIPT OF THE REQUEST, THE DEPARTMENT SHALL, IN 03511'99 * 5 1 WRITING, NOTIFY THE OWNER THAT THE REQUEST HAS BEEN RECEIVED. 2 THE NOTICE SHALL EXPLAIN THAT THE OWNER MAY, WITHIN 3 MONTHS 3 AFTER THE NOTICE IS SENT, SUBMIT TO THE DEPARTMENT IN WRITING 4 INFORMATION RELEVANT TO THE DEPARTMENT'S DETERMINATION. IN 5 MAKING ITS DETERMINATION, THE DEPARTMENT SHALL CONSIDER INFORMA- 6 TION SUBMITTED BY THE OWNER, RELEVANT WRITTEN INFORMATION SUBMIT- 7 TED BY THE REQUESTOR WITH THE REQUEST, AND OTHER INFORMATION THE 8 DEPARTMENT CONSIDERS RELEVANT. THE DEPARTMENT SHALL MAKE THE 9 DETERMINATION AND NOTIFY THE REQUESTOR AND OWNER OF THE DETERMI- 10 NATION IN WRITING WITHIN 5 MONTHS AFTER RECEIPT OF THE REQUEST. 11 Sec. 30307. (1) Within 60 days after receipt of the com- 12 pleted application and fee, the department may hold a hearing. 13 If a hearing is held, it shall be held in the county where the 14 wetland to which the permit is to apply is located. Notice of 15 the hearing shall be made in the same manner as for the promulga- 16 tion of rules under the administrative procedures act of 1969, 17 1969 PA 306, MCL 24.201 to 24.328. The department may approve or 18 disapprove a permit application without a public hearing unless a 19 person requests a hearing in writing within 20 days after the 20 mailing of notification of the permit application as required by 21 subsection (3) or unless the department determines that the 22 permit application is of significant impact to warrant a public 23 hearing. 24 (2) If a hearing is not held, the department shall approve 25 or disapprove the permit application within 90 days after the 26 completed permit application is filed with the department. If a 27 hearing is held, the department shall approve or disapprove the 03511'99 * 6 1 permit application within 90 days after the conclusion of the 2 hearing. The department may approve a permit application, 3 request modifications in the application, or deny the permit 4 application. If the department approves the permit application, 5 the department shall prepare and send the permit to the 6 applicant. If the department denies, or requests a modification 7 of, the permit application, the department shall send notice of 8 the denial or modification request and the reasons for the denial 9 or the modifications requested to the applicant. Department 10 approval may include the issuance of a permit containing condi- 11 tions necessary for compliance with this part. If the department 12 does not approve or disapprove the permit application within the 13 time provided by this subsection, the permit application shall be 14 considered approved, and the department shall be considered to 15 have made the determinations required by section 30311. The 16 action taken by the department may be appealed pursuant to the 17 administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 18 24.328. A property owner may, after exhaustion of administrative 19 remedies, bring appropriate legal action in a court of competent 20 jurisdiction. 21 (3) A person who desires notification of pending permit 22 applications may make a written request to the department accom- 23 panied by an annual fee of $25.00, which shall be credited to the 24 general fund of the state. The department shall prepare a 25 biweekly list of the applications made during the previous 2 26 weeks and shall promptly mail copies of the list for the 27 remainder of the calendar year to the persons who requested 03511'99 * 7 1 notice. The biweekly list shall state the name and address of 2 each applicant, the location of the wetland in the proposed use 3 or development, including the size of both the proposed use or 4 development and of the wetland affected, and a summary statement 5 of the purpose of the use or development. 6 (4) A local unit of government may regulate wetland within 7 its boundaries, by ordinance, only as provided under this part. 8 This subsection is supplemental to the existing authority of a 9 local unit of government. An ordinance adopted by a local unit 10 of government pursuant to this subsection shall comply with all 11 of the following: 12 (a) The ordinance shall not provide a different definition 13 of wetland than is provided in this part, except that a wetland 14 ordinance may regulate wetland ofless than 5 acres1 ACRE OR 15 LESS in size. 16 (b) If the ordinance regulates wetland that is smaller than 172 acres1 ACRE in size, the ordinance shall comply with section 18 30309. 19 (c) The ordinance shall comply with sections 30308 and 20 30310. 21 (d) The ordinance shall not require a permit for uses that 22 are authorized without a permit under section 30305, and shall 23 otherwise comply with this part. 24 (5) Each local unit of government that adopts an ordinance 25 regulating wetlands under subsection (4) shall notify the 26 department. 03511'99 * 8 1 (6) A local unit of government that adopts an ordinance 2 regulating wetlands shall use an application form supplied by the 3 department, and each person applying for a permit shall make 4 application directly to the local unit of government. Upon 5 receipt, the local unit of government shall forward a copy of 6 each application along with any state fees that may have been 7 submitted under section 30306 to the department. The department 8 shall begin reviewing the application as provided in this part. 9 The local unit of government shall review the application pursu- 10 ant to its ordinance and shall modify, approve, or deny the 11 application within 90 days after receipt. If a municipality does 12 not approve or disapprove the permit application within the time 13 period provided by this subsection, the permit application shall 14 be considered approved, and the municipality shall be considered 15 to have made the determinations as listed in section 30311. The 16 denial of a permit shall be accompanied by a written statement of 17 all reasons for denial. The failure to supply complete informa- 18 tion with a permit application may be reason for denial of a 19 permit. The department shall inform any interested person 20 whether or not a local unit of government has an ordinance regu- 21 lating wetlands. If the department receives an application with 22 respect to a wetland which is located in a local unit of govern- 23 ment which has an ordinance regulating wetlands, the department 24 immediately shall forward the application to the local unit of 25 government, which shall modify, deny, or approve the application 26 under this subsection. The local unit of government shall notify 03511'99 * 9 1 the department of its decision. The department shall proceed as 2 provided in this part. 3 (7) If a local unit of government does not have an ordinance 4 regulating wetlands, the department shall promptly send a copy of 5 the permit application to the local unit of government where the 6 wetland is located. The local unit of government may review the 7 application; may hold a hearing on the application; and may rec- 8 ommend approval, modification, or denial of the application to 9 the department. The recommendations of the local unit of govern- 10 ment shall be made and returned to the department within 45 days 11 after the local unit of government's receipt of the permit 12 application. The department shall approve, modify, or deny the 13 application as provided in this part. 14 (8) In addition to the requirements of subsection (7), the 15 department shall notify the local unit of government that the 16 department has issued a permit under this part within the juris- 17 diction of that local unit of government within 15 daysof18 AFTER issuance of the permit. The department shall enclose a 19 copy of the permit with the notice. 20 Sec. 30309. A local unit of government that has adopted an 21 ordinance under section 30307(4) that regulates wetland within 22 its jurisdiction that isless than 2 acres1 ACRE OR LESS in 23 size shall comply with this section. Upon application for a wet- 24 land use permit in a wetland that isless than 2 acres1 ACRE 25 OR LESS in size, the local unit of government shall approve the 26 permit unless the local unit of government determines that the 27 wetland is essential to the preservation of the natural resources 03511'99 * 10 1 of the local unit of government and provides these findings, in 2 writing, to the permit applicant stating the reasons for this 3 determination.In makingTO MAKE this determination, the local 4 unit of government must find that 1 or more of the following 5 exist at the particular site: 6 (a) The site supports state or federal endangered or threat- 7 ened plants, fish, or wildlife appearing on a list specified in 8 section 36505. 9 (b) The site represents what is identified as a locally rare 10 or unique ecosystem. 11 (c) The site supports plants or animals of an identified 12 local importance. 13 (d) The site provides groundwater recharge documented by a 14 public agency. 15 (e) The site provides flood and storm control by the hydro- 16 logic absorption and storage capacity of the wetland. 17 (f) The site provides wildlife habitat by providing breed- 18 ing, nesting, or feeding grounds or cover for forms of wildlife, 19 waterfowl, including migratory waterfowl, and rare, threatened, 20 or endangered wildlife species. 21 (g) The site provides protection of subsurface water 22 resources and provision of valuable watersheds and recharging 23 groundwater supplies. 24 (h) The site provides pollution treatment by serving as a 25 biological and chemical oxidation basin. 03511'99 * 11 1 (i) The site provides erosion control by serving as a 2 sedimentation area and filtering basin, absorbing silt and 3 organic matter. 4 (j) The site provides sources of nutrients in water food 5 cycles and nursery grounds and sanctuaries for fish. 6 SEC. 30324. THE DEPARTMENT OF NATURAL RESOURCES SHALL 7 ESTABLISH A VERNAL POND CONSERVATION AND EDUCATION PROGRAM. 8 UNDER THIS PROGRAM, THE DEPARTMENT OF NATURAL RESOURCES SHALL DO 9 ALL OF THE FOLLOWING: 10 (A) EDUCATE THE GENERAL PUBLIC AND OWNERS OF LAND CONTAINING 11 VERNAL PONDS ON THE SIGNIFICANT PLANT, WILDLIFE, AND ECOSYSTEM 12 VALUES SUPPORTED BY VERNAL PONDS. 13 (B) PROMOTE THE IDENTIFICATION AND PROTECTION OF VERNAL 14 PONDS. 15 (C) PROVIDE RECOGNITION TO OWNERS OF LAND CONTAINING VERNAL 16 PONDS WHO CERTIFY IN WRITING THAT THEY WILL PRESERVE THESE VERNAL 17 PONDS FOR A PERIOD OF NOT LESS THAN 10 YEARS. 18 (D) OBTAIN CONSERVATION EASEMENTS FROM WILLING OWNERS OF 19 LAND CONTAINING VERNAL PONDS TO PROTECT VERNAL PONDS AND VERNAL 20 POND BUFFER ZONES. 03511'99 * Final page. TMV