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Michigan's Wetland Permit Process

Click here to view full size picture The following information is from Living With Michigan's Wetlands: A Landowner's Guide, copyright 1996, Tip of the Mitt Watershed Council

Activities Regulated
Definitions
Exemptions
General Permits
Permit Standards
Application Procedures
Enforcement

Activities Regulated

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Under Michigan's Wetland Protection Act, a permit is required for the following activities:
  • Deposit or permit the placing of fill material in a wetland;

  • Dredge, remove, or permit removal of soil or minerals from a wetland

  • Construct, operate, or maintain any use of development in a wetland; or

  • Drain surface water from a wetland
It is important to note that these activities are regulated regardless of the intention of the dredging, filling, construction, or draining activities. For example, if a landowner plans to fill a wetland to construct a dike for the purpose of a waterfowl flooding, this activity still requires a permit even though the landowner may feel that the project will benefit the environment.

Definitions

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The activities that are regulated by the Wetland Protection Act only apply to wetlands as defined in the Act. The definition of wetlands in the Act has two components. First, the Act defines wetland as "land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support, wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh."

Second, jurisdiction over wetlands depends on whether a wetland is contiguous to a water body. Contiguous wetlands are those found in close proximity to a lake, stream, pond, Great Lake, etc., and/or have a direct hydrological relationship with it. According to the administrative rules promulgated for the Act, wetlands within 500 feet of an inland lake, stream, or pond and within 1,000 feet of a great lake generally are considered contiguous. Noncontiguous wetlands are isolated from lakes and streams hydrologically and, generally, geographically.

Activities in contiguous wetlands are regulated without regard to the size of the wetland because of their close relationship to lakes and streams. Noncontiguous wetlands however, are regulated only if they are greater than five acres in size. In counties of less than 100,000 people, noncontiguous wetlands are not usually regulated until a wetland inventory is complete. The MDEQ can regulate noncontiguous wetlands of any size anywhere in the state if the wetland is determined to be essential to the preservation of natural resources of the state and the landowner is notified of this determination.

Exemptions

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A variety of activities are exempt from wetland regulations, including recreational activities, vegetation clearing, and nearly all agricultural activities. Specific exemptions are listed in Section 30305 of the Act but are still subject to other laws of the state. If you are unclear whether an activity is exempt, contact the MDEQ Land and Water Management Division.

General Permits

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The MDEQ may issue general permits on a state or county basis for a category of activities that are similar in nature and have only a minimal adverse individual or cumulative effect on the environment. In the current program, applications under a general permit still undergo a full review, including a site inspection or the review of site specific information, and must meet all regulatory standards. However, the general permit process allows the Department to reach a decision without public notice. This allows the MDEQ to process minor applications more quickly. The Department has the option to issue a public notice on an application that would otherwise qualify under a general permit category if they determine that the project warrants public review and comment.

Permit Standards

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Section 30311 of the Wetland Protection Act details the specific standards that must be met before a permit is issued. If you are considering applying for a wetland permit, you should familiarize yourself with the specific permit review standards. The permit standards essentially involve the application of three "tests" to each application: public interest, acceptable disruption to aquatic resources, and wetland dependency/alternatives analysis.

Public Interest Test - The rationale behind wetland regulation is that the public interest in the functions that wetlands provide is in need of protection. Accordingly, the regulatory agency responsible for making wetland permit decisions must determine the impact of the project on the public interest. In determining whether the proposed activity is in the public interest, the reasonably foreseeable benefits of the project are weighed against the reasonably foreseeable detriments. Since wetland dredging, filling, and draining typically benefit the applicant, whereas the detriments are typically felt by the public at large, the public interest test usually boils down to the hard question of private gain versus public loss. To help agency staff negotiate the public interest test, Michigan wetland protection law provides a list of nine issues to consider, ranging from the cumulative impacts of existing and future activities in the watershed to the public and private economic value of the proposed land change in the general area.

Acceptable Disruption to Aquatic Resources Test - According to Section 30311(4) of the Act, "a permit shall not be issued unless it is shown that an unacceptable disruption will not result to the aquatic resource." In applying this test, the law instructs agency staff to consider all the functions and values that wetlands provide, including flood storage, fish and wildlife habitat, erosion control, and the range of water quality protection function.

Wetland Dependency/Alternative Analysis Test - Section 30311(4) also states that "a permit shall not be issued" unless the applicant shows either that the proposed activity is "primarily dependent upon being located in the wetland" or that "a feasible and prudent alternative does not exist." The rationale behind this test is simple: if there is a way to accomplish the goals of the project in a way that damages the wetland less, then it should be taken.

These three tests serve as the justification for permit denial or approval. If you plan on applying for a permit, a thorough understanding of the specific language contained in the law will help to ensure that you understand the statutory obligations of the agency staff charged with administering it.

Michigan's wetland protection statute authorizes the MDEQ to require mitigation for unavoidable adverse impacts that otherwise meet the permit criteria described above. The mitigation guidelines listed in the administrative rules seek no net loss of wetlands and mitigation projects that will replace the lost wetland functions on or near the same site as the impacted wetland. If that is determined to not be possible or beneficial to the resource, then a high priority is placed on requiring mitigation within the same watershed.

Application Procedures

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Application for a wetland permit is made to the Land and Water Management Division of the Michigan Department of Environmental Quality (MDEQ). The Land and Water Management Division also administers other laws that regulate activities in and around the land-water interface. In situations where two or more resource management acts apply, the Land and Water Management Division reviews one permit application under the criteria of all the applicable acts. For example, activities in wetlands requiring a permit under Inland Waters (Part 301 of Act 451 of 1994) and the Wetland Protection statute require only one permit application. This permit consolidation prevents unnecessary duplication of permits and review processes.

The process for applying for a permit is fairly simple: get the application, fill it out completely, submit it to the resource agency, and be available to discuss the specifics of the project. However, many landowners find the process to be frustrating. Much of the frustration can be reduced by hiring a consultant to complete the application materials and serve as your agent in dealing with the MDEQ staff. If you would rather go through the process yourself, you can reduce your frustration by comprehensively planning the project and becoming knowledgeable about the specific criteria that your application will be judged against. To help you do this, read the text of the Wetland Protection Act of 451. One way to assist you with planning your project and completing your application might be to place yourself in the shoes of the person who will be making the permit decision and asking the questions her or she must ask: Is this project in the public interest? Are the disruptions to aquatic habitats acceptable? Have I utilized all alternatives that would accomplish the goal of the project while avoiding or minimizing impacts to the wetlands? If you can develop your project in a way that allows you to answer yes to all these questions, then your experience with the wetland regulatory process should be relatively painless.

Once an application is submitted to the MDEQ in Lansing, the Permit Consolidation Unit (PCU) staff will determine if the application is complete. If some materials are missing or information is unclear, the PCU staff will contact you either by phone or by writing. After the determination is made that all information has been provided and the application is complete, the clock on the 90-day time limit imposed by the law for the MDEQ to process the application starts ticking. Depending on the nature of the project, the MDEQ staff may issue a public notice. Any comments from the public regarding your project must be considered in your permit review, including request for a public hearing. If a public hearing is held on your project, you will want to prepare a presentation to be made to the public to explain your project and answer any questions that might be raised. It is important to note that if a public hearing is held, the MDEQ has 90 days after the conclusion of the hearing to make a decision. After the MDEQ staff member has gathered relevant information and considered public comments he or she makes a decision as to where to issue or deny the permit, or issue the permit with modifications. If you receive a permit denial and would like to contest the decision, you have the opportunity to file a petition for administrative appeal.

Enforcement

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Wetland property owners should be aware of the stiff penalties that come with violating Michigan's wetlands law. Failure to obtain a necessary permit, or violation of permit conditions, are subject to civil and criminal penalties. Actions may be brought by either local prosecutors or by Michigan's Attorney General. If found to be in violation, financial penalties, restoration, and/or jail sentences may be imposed by court verdict or order. The court may impose a civil fine of $10,000 per day of violation of the law or violation of court order, as well as ordering wetland restoration.

Criminal penalties are slightly different. A person who violates the Act is punishable by a fine of up to $25,000. Willful or reckless violations of permit conditions by a person or corporate officer can result in a fine of not less than $2,500 nor more than $25,000 per day of violation, and/or imprisonment for not more than one year. A second such violation constitutes a felony, punishable by a fine of up to $50,000 per day of violation, and/or up to two years imprisonment. In addition to these penalties, the court may order a person who violates this act to restore the affected wetland.
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