Bill Text: MI HB4153 | 2009-2010 | 95th Legislature | Introduced

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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 1-0)

Status: (Introduced - Dead) 2009-02-05 - Printed Bill Filed 02/05/2009 [HB4153 Detail]

Download: Michigan-2009-HB4153-Introduced.html

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HOUSE BILL No. 4153

 

February 4, 2009, Introduced by Rep. Stamas and referred to the Committee on Great Lakes and Environment.

 

     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.