Bill Text: MI SB0187 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Natural resources; wetlands; permit program; surrender federal delegation. Amends secs. 30104b, 30301, 30302, 30304, 30305, 30307, 30308, 30309, 30310, 30311, 30313, 30317, 30321 & 30323 of 1994 PA 451 (MCL 324.30104b et seq.) & repeals secs. 30303, 30306, 30306b, 30312, 30313b to 30316, 30318 to 30320 & 30322 of 1994 PA 451 (MCL 324.30303 et seq.).
Spectrum: Partisan Bill (Republican 3-0)
Status: (Introduced - Dead) 2009-02-04 - Referred To Committee On Natural Resources And Environmental Affairs [SB0187 Detail]
Download: Michigan-2009-SB0187-Introduced.html
SENATE BILL No. 187
February 4, 2009, Introduced by Senators KAHN, PAPPAGEORGE and HARDIMAN and referred to the Committee on Natural Resources and Environmental Affairs.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 30104b, 30301, 30302, 30304, 30305, 30307,
30308, 30309, 30310, 30311, 30313, 30317, 30321, and 30323 (MCL
324.30104b, 324.30301, 324.30302, 324.30304, 324.30305, 324.30307,
324.30308, 324.30309, 324.30310, 324.30311, 324.30313, 324.30317,
324.30321, and 324.30323), section 30104b as added by 2006 PA 592,
sections 30301 and 30305 as amended by 2003 PA 14, sections 30302,
30308, 30309, 30310, 30311, 30313, and 30323 as added by 1995 PA
59, section 30304 as amended by 2004 PA 325, section 30307 as
amended by 2006 PA 430, section 30317 as amended by 1998 PA 228,
and section 30321 as amended by 1996 PA 530; and to repeal acts and
parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
30104b. (1) Section 30306b applies to a proposed project
or
a permit application under this part. If a preapplication
meeting is requested in writing by the landowner or another person
who is authorized in writing by the landowner, the department shall
meet with the person or his or her representatives to review a
proposed project or a proposed permit application in its entirety.
The preapplication meeting shall take place at the department's
district office for the district that includes the project site or
at the project site itself, as specified in the request.
(2) Except as provided in this subsection, a request under
subsection (1) shall be accompanied by a fee. The fee for a
preapplication meeting at the district office is $150.00. The fee
for a preapplication meeting at the project site is $250.00 for the
first acre or portion of an acre of project area, plus $50.00 for
each acre or portion of an acre in excess of the first acre, but
not to exceed a fee of $1,000.00. However, if the location of the
project is a single family residential lot that is less than 1 acre
in size, there is no fee for a preapplication meeting at the
district office, and the fee for a preapplication meeting at the
project site is $100.00.
(3) If the person who submitted a request under subsection (1)
withdraws the request at least 24 hours before the preapplication
meeting, the department may agree with the person to reschedule the
meeting or shall promptly refund the fee and need not meet as
provided in this section. Otherwise, if, after agreeing to the time
and place for a preapplication meeting, the person is not
represented at the meeting, the person shall forfeit the fee for
the meeting. If, after agreeing to the time and place for a
preapplication meeting, the department is not represented at the
meeting, the department shall refund the fee and send a
representative to a rescheduled meeting to be held within 10 days
of the first scheduled meeting date.
(4) Any written agreement provided by the department as a
result of a preapplication meeting regarding the need to obtain a
permit is binding on the department for 2 years from the date of
the agreement.
(5) (2)
This section is repealed effective October 1, 2010.
Sec. 30301. As used in this part:
(a)
"Beach" means the area landward of the shoreline of the
Great
Lakes as the term shoreline is
defined in section 32301.
(a) (b)
"Beach maintenance
activities" means any of the
following in the area of Great Lakes bottomlands lying below the
ordinary high-water mark and above the water's edge:
(i) Manual or mechanized leveling of sand.
(ii) Mowing of vegetation.
(iii) Manual de minimis removal of vegetation.
(iv) Grooming of soil.
(v) Construction and maintenance of a path.
(b) (c)
"Debris" means animal or
fish carcasses, zebra mussel
shells, dead vegetation, trash, and discarded materials of human-
made origin.
(c) (d)
"Department" means the
department of environmental
quality.
(e)
"Director" means the director of the department.
(d) "Environmental area" means an environmental area as
defined in section 32301.
(e) (f)
"Fill material" means
soil, rocks, sand, waste of any
kind, or any other material that displaces soil or water or reduces
water retention potential.
(g)
"Environmental area" means an environmental area as
defined
in section 32301.
(f) (h)
"Grooming of soil" means
raking or dragging, pushing,
or pulling metal teeth through the top 4 inches of soil without
disturbance of or destruction to plant roots, for the purpose of
removing debris.
(g) (i)
"Leveling of sand" means
the relocation of sand within
areas being leveled that are predominantly free of vegetation,
including the redistribution, grading, and spreading of sand that
has been deposited through wind or wave action onto upland riparian
property.
(h) (j)
"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) (k)
"Mowing of vegetation"
means the cutting of vegetation
to a height of not less than 2 inches, without disturbance of soil
or plant roots.
(j) (l) "Ordinary
high-water mark" means that term as it is
defined
the ordinary high-water mark
as specified in section 32502.
(k) (m)
"Path" means a temporary
access walkway from the
upland riparian property directly to the shoreline across swales
with standing water, not exceeding 6 feet in bottom width and
consisting
of sand and pebbles obtained from the exposed,
nonvegetated bottomlands or from the upland riparian property.
(l) (n)
"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.
(m) (o)
"Removal of vegetation"
means the manual or mechanized
removal of vegetation, other than the manual de minimis removal of
vegetation.
(n) (p)
"Wetland" means land that is 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 that is commonly referred to as a
bog,
swamp, or marsh, and which that is any of the
following:
(i) Contiguous to the Great Lakes or Lake St. Clair, 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; except
this
subparagraph shall not be of effect does not apply, except for
the purpose of inventorying, in counties of less than 100,000
population until the department certifies to the commission it has
substantially completed its inventory of wetlands in that county.
(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 An
area whose protection
is determined by the department to be essential to the preservation
of the natural resources of the state from pollution, impairment,
or
destruction, and if
the department has so notified the
owner. ;
except
this subparagraph may be utilized regardless of wetland size
in
a county in which subparagraph (ii) is
of no effect; except for
the
purpose of inventorying, at the time.
Sec. 30302. (1) The legislature finds that:
(a)
Wetland conservation is a matter of state concern since a
wetland
of 1 county may be affected by acts on a river, lake,
stream,
or wetland of other counties.
(a) (b)
A loss of a wetland may deprive the
people of the
state of some or all of the following benefits to be derived from
the wetland:
(i) Flood and storm control by the hydrologic absorption and
storage capacity of the wetland.
(ii) Wildlife habitat by providing breeding, nesting, and
feeding grounds and cover for many forms of wildlife, waterfowl,
including migratory waterfowl, and rare, threatened, or endangered
wildlife species.
(iii) Protection of subsurface water resources, and
provision of
valuable watersheds, and recharging of ground water supplies.
(iv) Pollution treatment by serving as a biological and
chemical oxidation basin.
(v) Erosion control by serving as a sedimentation area and
filtering basin, absorbing silt and organic matter.
(vi) Sources of nutrients in water food cycles and nursery
grounds and sanctuaries for fish.
(b) (c)
Wetlands are valuable as an
agricultural resource for
the
production of food and fiber, including certain crops which
that may only be grown on sites developed from wetland.
(c) (d)
That the The extraction and processing of nonfuel
minerals
may necessitate the use of wetland.
, if it is determined
pursuant
to section 30311 that the proposed activity is dependent
upon
being located in the wetland and that a prudent and feasible
alternative
does not exist.
(2)
In the administration of this part, the department shall
consider
the criteria provided in subsection (1).
(2) The department shall not regulate activities in wetland
under this part. The department shall not administer a permit
program under section 404 of title IV of the federal water
pollution control act, 33 USC 1344.
Sec.
30304. Except as otherwise provided in this part or by a
permit
issued by the department under sections 30306 to 30314 and
pursuant
to part 13, An ordinance
adopted under section 30307 may
provide that a person shall not do any of the following without a
permit issued by the local unit of government where the wetland is
located:
(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.
(c) Construct, operate, or maintain any use or development in
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 local ordinance under
section 30307 shall not require
a permit for any of the following uses in a wetland:
(a) Fishing, trapping, or hunting.
(b) Swimming or boating.
(c) Hiking.
(d) Grazing of animals.
(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. Wetland altered under this
subdivision
shall not be used for a purpose other than a purpose
described
in this subsection 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, operation, or improvement, which includes
including straightening, widening, or deepening, of the following
which
that is necessary for the production or harvesting of
agricultural products:
(i) An existing private agricultural drain.
(ii) That portion of a drain legally established pursuant to
the
drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630, which
that has been constructed or improved for drainage purposes.
(iii) A drain constructed pursuant to other provisions of this
part or former 1979 PA 203.
(i) 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 assure ensure
that
any adverse effect on the wetland will be otherwise minimized.
(j) Drainage necessary for the production and harvesting of
agricultural products if the wetland is owned by a person who is
engaged in commercial farming and the land is to be used for the
production
and harvesting of agricultural products. Except as
otherwise
provided in this part, wetland improved under this
subdivision
after October 1, 1980 shall not be used for nonfarming
purposes
without a permit from the department. This
subdivision
does not apply to a wetland that is contiguous to a lake or stream,
or to a tributary of a lake or stream, or to a wetland that the
department
local unit of government has determined by clear and
convincing evidence to be a wetland that is necessary to be
preserved
for the public interest. , in which case a permit is
required.
(k) Maintenance or improvement of public streets, highways, or
roads,
within the right-of-way and in such a manner as to assure
ensure
that any adverse effect on the wetland
will be otherwise
minimized. Maintenance or improvement does not include adding extra
lanes, increasing the right-of-way, or deviating from the existing
location of the street, highway, or road.
(l) Maintenance, repair, or operation of gas or oil pipelines
and construction of gas or oil pipelines having a diameter of 6
inches or less, if the pipelines are constructed, maintained, or
repaired
in a manner to assure ensure
that any adverse effect on
the
wetland will be otherwise minimized.
(m) Maintenance, repair, or operation of electric transmission
and distribution power lines and construction of distribution power
lines, if the distribution power lines are constructed, maintained,
or
repaired in a manner to assure ensure
that any adverse effect on
the
wetland will be otherwise minimized.
(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) Construction of iron and copper mining tailings basins and
water storage areas.
(p) Until November 1, 2007, beach maintenance activities that
meet all of the following conditions:
(i) The activities shall not occur in environmental areas and
shall not violate part 365 or rules promulgated under that part, or
the
endangered species act of 1973, Public Law 93-205, 87 Stat.
884,
or rules promulgated under that
act.
(ii) The width of any mowing of vegetation shall not exceed the
width of the riparian property or 100 feet, whichever is less.
(iii) All collected debris shall be disposed of properly outside
of any wetland.
(q)
Until 3 years after the effective date of the amendatory
act
that added this subdivision, removal of vegetation as
authorized
under section 32516.
(q) (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.
(2) (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 local
ordinance adopted under section 30307:
(a) Excavation for mineral or sand mining, if the area was not
a wetland before excavation. This exemption does not include a
wetland on or adjacent to a water body of 1 acre or more in size.
(b) Construction and operation of a water treatment pond or
lagoon in compliance with the requirements of state or federal
water pollution control regulations.
(c) A diked area associated with a landfill if the landfill
complies with the terms of the landfill construction permit and if
the diked area was not a wetland before diking.
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 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 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 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.
(1) (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.
(c) The ordinance shall comply with sections 30308 and 30310.
(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.
(2) (5)
Each local unit of government that
adopts an ordinance
regulating
wetlands under subsection (4) (1)
shall notify the
department.
(3) (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 90 days
after receipt, 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 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. 30308. (1) Prior to the effective date of an ordinance
authorized
under section 30307(4) 30307, a local unit of government
that wishes to adopt such an ordinance shall complete and make
available to the public at a reasonable cost an inventory of all
wetland within the local unit of government, except that a local
unit of government located in a county that has a population of
less than 100,000 is not required to include public lands on its
map. A local unit of government shall make a draft of the inventory
map available to the public, shall provide for public notice and
comment opportunity prior to finalizing the inventory map, and
shall respond in writing to written comments received by the local
unit
of government regarding the contents of the inventory. A local
unit
of government that has a wetland ordinance on December 18,
1992
has until June 18, 1994 to complete an inventory map and to
otherwise
comply with this part, or the local unit of government
shall
not continue to enforce that ordinance. Upon completion of an
inventory map or upon a subsequent amendment of an inventory map,
the local unit of government shall notify each record owner of
property on the property tax roll of the local unit of government
that the inventory maps exist or have been amended, where the maps
may be reviewed, that the owner's property may be designated as a
wetland on the inventory map, and that the local unit of government
has an ordinance regulating wetland. The notice shall also inform
the property owner that the inventory map does not necessarily
include all of the wetlands within the local unit of government
that may be subject to the wetland ordinance. The notice may be
given by including the required information with the annual notice
of the property owner's property tax assessment. A wetland
inventory map does not create any legally enforceable presumptions
regarding whether property that is or is not included on the
inventory map is or is not a wetland.
(2) A local unit of government that adopts a wetland ordinance
shall process wetland use applications in a manner that ensures
that the same entity makes decisions on site plans, plats, and
related matters, and wetland determinations, and that the applicant
is not required to submit to a hearing on the application before
more than 1 local unit of government decision making body. This
requirement does not apply to either of the following:
(a) A preliminary review by a planning department, planning
consultant, or planning commission, prior to submittal to the
decision making body if required by an ordinance.
(b) An appeal process that is provided for appeal to the
legislative body or other body designated to hear appeals.
Sec. 30309. A local unit of government that has adopted an
ordinance
under section 30307(4) 30307
that regulates wetland
within its jurisdiction that is less than 2 acres in size shall
comply with this section. Upon application for a wetland use permit
in a wetland that is less than 2 acres in size, the local unit of
government shall approve the permit unless the local unit of
government determines that the wetland is essential to the
preservation of the natural resources of the local unit of
government and provides these findings, in writing, to the permit
applicant stating the reasons for this determination. In making
this determination, the local unit of government must find that 1
or
more of the following exist at apply
to the particular site:
(a) The site supports state or federal endangered or
threatened plants, fish, or wildlife appearing on a list specified
in section 36505.
(b) The site represents what is identified as a locally rare
or unique ecosystem.
(c) The site supports plants or animals of an identified local
importance.
(d) The site provides groundwater recharge documented by a
public agency.
(e) The site provides flood and storm control by the
hydrologic absorption and storage capacity of the wetland.
(f) The site provides wildlife habitat by providing breeding,
nesting, or feeding grounds or cover for forms of wildlife,
waterfowl, including migratory waterfowl, and rare, threatened, or
endangered wildlife species.
(g) The site provides protection of subsurface water resources
and provision of valuable watersheds and recharging groundwater
supplies.
(h) The site provides pollution treatment by serving as a
biological and chemical oxidation basin.
(i) The site provides erosion control by serving as a
sedimentation area and filtering basin, absorbing silt and organic
matter.
(j) The site provides sources of nutrients in water food
cycles and nursery grounds and sanctuaries for fish.
Sec. 30310. (1) A local unit of government that adopts an
ordinance
authorized under section 30307(4) 30307 shall include in
the ordinance a provision that allows a landowner to request a
revaluation of the affected property for assessment purposes to
determine its fair market value under the use restriction if a
permit is denied by a local unit of government for a proposed
wetland use. A landowner who is aggrieved by a determination,
action, or inaction under this subsection may protest and appeal
that determination, action, or inaction pursuant to the general
property
tax act, Act No. 206 of the Public Acts of 1893, being
sections
211.1 to 211.157 of the Michigan Compiled Laws 1893 PA
206, MCL 211.1 to 211.155.
(2) If a permit applicant is aggrieved by a determination,
action, or inaction by the local unit of government regarding the
issuance of a permit, that person may seek judicial review in the
same manner as provided in the administrative procedures act of
1969,
Act No. 306 of the Public Acts of 1969, being sections 24.201
to
24.328 of the Michigan Compiled Laws 1969 PA 306, MCL 24.201 to
24.328.
(3) 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 necessary to protect the wetland
owner's rights.
Sec. 30311. (1) A permit for an activity listed in section
30304
shall not be approved unless the department local unit of
government 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 benefits from the
activity.
(c) The extent and permanence of the beneficial or detrimental
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 impact of each proposal in relation to the
cumulative effect created by other existing and anticipated
activities in the watershed.
(e) The probable impact 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 local
unit of government 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.
Sec.
30313. (1) A general permit may be revoked or modified
if,
after opportunity for a public hearing or a contested case
hearing
under the administrative procedures act of 1969, Act No.
306
of the Public Acts of 1969, being sections 24.201 to 24.328 of
the
Michigan Compiled Laws, the department determines that the
activities
authorized by the general permit have an adverse impact
on
the environment or the activities would be more appropriately
authorized
by an individual permit.
(2)
A permit issued by a local unit of government pursuant
to
an ordinance adopted under section 30307 may be terminated or
modified for cause, including:
(a) A violation of a condition of the permit.
(b) Obtaining a permit by misrepresentation or failure to
fully disclose relevant facts.
(c) A change in a condition that requires a temporary or
permanent change in the activity.
Sec. 30317. The 2009 amendatory act that amended this section
does not invalidate any permit issued before the effective date of
that amendatory act or any enforcement action pending before the
effective date of that amendatory act with respect to such a
permit. The civil fines collected by this state under this part
shall be forwarded to the state treasurer for deposit in the
general
fund of the state. The fees collected under this part shall
be
deposited in the land and water management permit fee fund
created
in section 30113. Subject to section 30113, the department
shall
expend money from the land and water management permit fee
fund,
upon appropriation, to support guidance for property owners
and
applicants, permit processing, compliance inspections, and
enforcement
activities under this part. Not
more than 90 days after
the end of each state fiscal year ending after 1997, the department
shall prepare a report describing how money from the land and water
management permit fee fund created in section 30113 was expended
during
that fiscal year and an evaluation of the current statutory
and
department rules, bulletins, and letters definition of a
wetland
and any appropriate changes to that definition in the first
report
submitted to the legislature under this section and shall
submit the report to the standing committees of the house of
representatives and the senate that primarily address issues
pertaining to the protection of natural resources and the
environment, and the appropriations committees in the house of
representatives and the senate. Other than civil fines and costs,
the disposition of which is governed by section 8379 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.8379, or criminal
fines,
funds money collected by a local unit of government under an
ordinance
authorized under section 30307(4) 30307 shall be
deposited in the general fund of the local unit of government.
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.
(3)
Before an inventory is made of a county, a person who owns
or
leases a parcel of property located in that county 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.
(c)
Contain a legal description of the parcel and, if only a
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.
(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.
(c)
If the assessment report determines that the area assessed
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.
(5)
A person may request the department to reassess any area
assessed
under subsections (3) and (4) that the person believes the
department
erroneously determined to be wetland. The requirements
of
subsections (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).
(6)
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.
(7)
The department may charge a fee for an assessment
requested
under subsection (3) based upon the cost to the
department
of conducting an assessment.
Sec. 30323. (1) This part shall not be construed to abrogate
rights or authority otherwise provided by law.
(2) For the purposes of determining if there has been a taking
of property without just compensation under state law, an owner of
property
who has sought and been denied a permit from the state or
from
a local unit of government that adopts an ordinance pursuant
to
under section 30307(4) 30307,
who has been made subject to
modifications
or conditions in the a permit under this part issued
under
such an ordinance, or who has been made
subject to the action
or
inaction of the department pursuant to this part or the action
or inaction of a local unit of government that adopts such an
ordinance
pursuant to section 30307(4) may file an action in a
court of competent jurisdiction.
(3)
If the court determines that an action of the department
or
a local unit of government pursuant
to this part or an ordinance
authorized
pursuant to section 30307(4) adopted
under section 30307
constitutes
a taking of the property of a person, then the court
shall
order the department or the local unit of government, at the
department's
or the local unit of government's
option, as
applicable,
to do 1 or more of the following:
(a) Compensate the property owner for the full amount of the
lost value.
(b) Purchase the property in the public interest as determined
before
its value was affected by this part or the local ordinance
authorized
adopted under section 30307(4) 30307 or
the action or
inaction
of the department pursuant to this part or the local unit
of government pursuant to its ordinance.
(c) Modify its action or inaction with respect to the property
so
as to minimize the detrimental affect effect to the property's
value.
(4) For the purposes of this section, the value of the
property may not exceed that share of the state equalized valuation
of the total parcel that the area in dispute occupies of the total
parcel of land, multiplied by 2, as determined by an inspection of
the most recent assessment roll of the township or city in which
the parcel is located.
Enacting section 1. Sections 30303, 30306, 30306b, 30312,
30313b to 30316, 30318 to 30320, and 30322 of the natural resources
and environmental protection act, 1994 PA 451, MCL 324.30303,
324.30306, 324.30306b, 324.30312, 324.30313b to 324.30316,
324.30318 to 324.30320, and 324.30322, are repealed.
