Wetland Regulations
State of Michigan Regulation
Michigan’s wetland regulatory program is Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act (Act 451 of 1994 as amended). The Michigan Department of Environmental Quality (MDEQ) administers this statute. Michigan’s Statutory definition of a wetland:
“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.” (Section 30301(d))
State Jurisdiction
The MDEQ regulates wetlands that meet one or more of the following:
Activities Requiring a Permit
Under Part 303, a permit is required for the following activities in regulated wetlands:
The following activities are exempt and do not need to obtain a permit under Part 303:
Permit Review Standards
Before a permit is issued, specific standards must be met. The permit standards involve application of three “tests.”
To determine whether the project is in the public interest, the reasonably foreseeable benefits of the project are weighed against reasonably foreseeable detriments. The following criteria are considered in the public interest test:
Unacceptable Disruption to Aquatic Resources Test
To determine whether impacts to the aquatic resources are unacceptable, the MDEQ must consider criteria put forth in the legislative finding in which the loss of a wetland may deprive people of the state of some or all of the following benefits:
Wetland Dependency and Alternative Analysis Test
A permit shall not be issued unless:
Mitigation
If a project meets the criteria, a permit is issued under Part 303. If the permit authorizes wetland impacts deemed unavoidable, mitigation may be required by the MDEQ.
Michigan’s wetland regulatory program is Part 303, Wetland Protection, of the Natural Resources and Environmental Protection Act (Act 451 of 1994 as amended). The Michigan Department of Environmental Quality (MDEQ) administers this statute. Michigan’s Statutory definition of a wetland:
“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.” (Section 30301(d))
State Jurisdiction
The MDEQ regulates wetlands that meet one or more of the following:
- Wetlands connected to other waterbodies
- Wetlands within 500 feet of an inland lake, stream, or pond or within 1,000 feet of a Great Lake
- Wetlands greater than 5 acres in size
- If the MDEQ determines that the wetland is essential to the preservation of natural resources of the state and the landowner has been notified
Activities Requiring a Permit
Under Part 303, a permit is required for the following activities in regulated wetlands:
- Place fill in a wetland
- Dredge or remove soil or minerals from a wetland
- Construct, operate, or maintain any use or development in a wetland
- Drain surface water from a wetland
The following activities are exempt and do not need to obtain a permit under Part 303:
- Recreational activities such as fishing, trapping, hunting, boating, etc.
- Silviculture and lumbering activities including harvesting of commercial forest products
- Specified agricultural and forestry activities, including plowing, planting, harvesting, grazing, and minor drainage
- Specified power line or small gas pipeline construction, if impacts are minimized
- Forest and farm roads if best management practices are followed
Permit Review Standards
Before a permit is issued, specific standards must be met. The permit standards involve application of three “tests.”
- Is the project in the public interest?
- Will impacts to aquatic resources be acceptable?
- Is the project dependent on being place in a wetland; does a feasible and prudent alternative exist?
To determine whether the project is in the public interest, the reasonably foreseeable benefits of the project are weighed against reasonably foreseeable detriments. The following criteria are considered in the public interest test:
- The relative extent of the public and private need for the proposed activity
- The availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity
- 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
- The probable effects of each proposal in relation to the cumulative effects created by other existing and anticipated activities in the watershed
- The probable effects on recognized historic, cultural, scenic, ecological, or recreational values and on the public health or fish or wildlife
- The size of the wetland being considered
- The amount of remaining wetland in the general area
- Proximity to any waterway
- Economic value, both public and private, of the proposed land change to the general area
Unacceptable Disruption to Aquatic Resources Test
To determine whether impacts to the aquatic resources are unacceptable, the MDEQ must consider criteria put forth in the legislative finding in which the loss of a wetland may deprive people of the state of some or all of the following benefits:
- Flood and storm control by the hydrologic absorption and storage capacity of the wetland
- 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
- Protection of subsurface water resources and provision of valuable watersheds and recharging ground water supplies
- Pollution treatment by serving as a biological and chemical oxidation basin.
- Erosion control by serving as a sedimentation area and filtering basin, absorbing silt and organic matter
- Sources of nutrients in water food cycles and nursery grounds and sanctuaries for fish
Wetland Dependency and Alternative Analysis Test
A permit shall not be issued unless:
- The proposed activity is primarily dependent on be located in a wetland, or
- A feasible and prudent alternative does not exist
Mitigation
If a project meets the criteria, a permit is issued under Part 303. If the permit authorizes wetland impacts deemed unavoidable, mitigation may be required by the MDEQ.
Federal Regulation of Wetlands under Section 404 of the Clean Water Act
Section 404 of the Federal Clean Water Act regulates discharging dredged and/or fill material into the waters of the United States, including adjacent wetlands. Typical activities requiring Section 404 permits are: depositing of fill or dredged material in waters of the U.S. or adjacent wetlands; site development fill for residential, commercial, or recreational developments; construction of revetments, groins, breakwaters, levees, dams, dikes, and weirs; and, placement of riprap and road fills.
In 1984, Michigan became the first state to receive EPA approval to administer the CWA 404 Permit Program. MDEQ issues the majority of federal 404 permits in the state. However, the United States Army Corps of Engineers (USACE) retained Section 404 authority in navigable waters and Section 404 authority in wetlands adjacent to Section 10 Waters including the Great Lakes, connecting channels, other waters connected to the Great Lakes where navigational conditions are maintained. Therefore, there is joint authority in navigable waters in Michigan and activities in these waters require a joint permit application.
The USACE evaluation of a Section 404 permit application is a two part test:
1) Determine if the project complies with EPA’s Clean Water Act Section 404(b)(1) Guidelines:
Under the public interest review, the USACE weigh and balance the benefits of a project against the reasonably foreseeable detriments to evaluate whether the project is contrary to the “public interest.” They consider numerous factors beyond just aquatic impacts evaluated including, conservation, economics, aesthetics, flood hazards, land use, and recreation.
If the least environmentally damaging practicable alternative still has adverse impacts to the aquatic ecosystem, compensatory mitigation for any remaining unavoidable adverse impacts may be required.
Section 404 of the Federal Clean Water Act regulates discharging dredged and/or fill material into the waters of the United States, including adjacent wetlands. Typical activities requiring Section 404 permits are: depositing of fill or dredged material in waters of the U.S. or adjacent wetlands; site development fill for residential, commercial, or recreational developments; construction of revetments, groins, breakwaters, levees, dams, dikes, and weirs; and, placement of riprap and road fills.
In 1984, Michigan became the first state to receive EPA approval to administer the CWA 404 Permit Program. MDEQ issues the majority of federal 404 permits in the state. However, the United States Army Corps of Engineers (USACE) retained Section 404 authority in navigable waters and Section 404 authority in wetlands adjacent to Section 10 Waters including the Great Lakes, connecting channels, other waters connected to the Great Lakes where navigational conditions are maintained. Therefore, there is joint authority in navigable waters in Michigan and activities in these waters require a joint permit application.
The USACE evaluation of a Section 404 permit application is a two part test:
1) Determine if the project complies with EPA’s Clean Water Act Section 404(b)(1) Guidelines:
- Alternatives – prohibits issuance of a permit for projects where feasible, less environmentally damaging alternatives are available
- Adverse Impacts – prohibits issuance of a permit for projects which would cause or contribute to significant adverse impacts to the aquatic environment
- Water Quality – prohibits issuance of a permit for projects which would violate any applicable state water quality standard
- Mitigation – requires project applicants to eliminate avoidable impacts and to minimize and compensate for unavoidable impacts
Under the public interest review, the USACE weigh and balance the benefits of a project against the reasonably foreseeable detriments to evaluate whether the project is contrary to the “public interest.” They consider numerous factors beyond just aquatic impacts evaluated including, conservation, economics, aesthetics, flood hazards, land use, and recreation.
If the least environmentally damaging practicable alternative still has adverse impacts to the aquatic ecosystem, compensatory mitigation for any remaining unavoidable adverse impacts may be required.
Local Regulations
Local communities can enact ordinances that protect smaller, isolated wetlands and provide local oversight over development activities that impact wetlands.
Michigan’s wetland protection statute authorizes municipalities to regulate wetlands using the same definition, regulatory standards, and application procedures established in state law. This authority is supplemental to the existing authority of a municipality to enact zoning ordinances in the public interest under the County, Township, and City and Village Zoning Enabling Acts.
Local Government Authority to Protect Wetlands
Special Requirements for Local Ordinances
Local Permit Process Requirements
Local communities can enact ordinances that protect smaller, isolated wetlands and provide local oversight over development activities that impact wetlands.
Michigan’s wetland protection statute authorizes municipalities to regulate wetlands using the same definition, regulatory standards, and application procedures established in state law. This authority is supplemental to the existing authority of a municipality to enact zoning ordinances in the public interest under the County, Township, and City and Village Zoning Enabling Acts.
Local Government Authority to Protect Wetlands
- Michigan Wetland Protection Act (Part 303 of Act 451 of 1994)
- MEPA – Michigan Environmental Protection Act (Part 17 of Act 451)
- County Rural Zoning Enabling Act (PA 183 of 1943)
- Township Rural Zoning Act (PA 184 of 1943)
- City and Village Zoning Act (PA 207 of 1921)
Special Requirements for Local Ordinances
- Must use the state definition of wetland, except that local governments can regulate isolated wetlands smaller than 5 acres
- Local government can only regulate the same activities and make decisions in the same timeframe as the state (a wetland ordinance cannot require a permit for activities exempt under Part 303)
- Must produce a wetland inventory map before adopting a wetland ordinance
- Must use application form provided by the state
- Must process in a manner similar to other permits and coordinate permit applications (for state jurisdiction wetlands) with the state
- Local units of government that adopt wetland ordinances must notify the DEQ
Local Permit Process Requirements
- Local governments must process wetland applications in manner that ensures that the same entity makes decisions on site plans, plats, and wetlands
- Applicant cannot be required to submit to a hearing on the application before more than one local government decision making body
- Local governments must forward a copy of each application to the MDEQ
- If a local government regulates wetlands less than 2 acres in size, the local government must grant a permit unless it is determined that the wetland is essential to the preservation of the community’s natural resources
Communities that adopt wetland protection ordinances will see tremendous benefits from their labor. Highly valued open space will be preserved, developments will be designed with a greater sensitivity to the natural landscape, and the valuable functions that wetlands provide will be preserved for the benefit of all residents. It takes time, commitment, and a certain level of economic capacity to successfully implement a wetland protection ordinance, but the short and long-term benefits will be obvious.
Additional Options to Integrate Wetlands into Local Governance
Additional Options to Integrate Wetlands into Local Governance
- Natural Features Setback Regulations
- Linking Local Approval to State and Federal Permits
- Floodplain Management
- Stormwater Management Ordinance
- Site Plan Review Regulations
- Erosion and Sedimentation Control
- Open Space Zoning and Conservation Design
- Performance Based Zoning
- Performance Guarantees
- Lot Split or Lot Division Regulations
- Environmental Planning in Public Infrastructure Projects
Benefits of Local Protection
- Local ordinances can protect important wetlands not covered by state or federal law
- Local governments are well suited to integrate wetlands into land use decisions
- Enhances protection of the ecological integrity of wetland systems and habitat corridors
- Improves water quality, reduces flood damage, protects wildlife habitat, and preserves valuable open space and recreational areas
- Reduces tax dollars spent replacing lost wetland functions and values and protects the local economy by enhancing the quality of life
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For more information on local protection, click the link to access the publication
"Protecting Michigan's Wetlands: A Guide for Local Governments". |
Laws Governing Wetlands
Federal
Clean Water Act Section 404 - requires authorization for any discharge of dredged and/or fill material into waters of the United States, including wetlands
Section 10 of the Rivers and Harbors Act of 1899 - requires that regulated activities conducted below the Ordinary High Water (OHW) elevation of navigable waters of the United States be approved/permitted by the U.S. Army Corps of Engineers. Regulated activities include the placement/removal of structures, work involving dredging, disposal of dredged material, filling, excavation, or any other disturbance of soils/sediments or modification of a navigable waterway.
State of Michigan
Part 303, Wetlands Protections, Rules
Part 303, Wetlands Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended
Other State Laws Affecting Wetlands
Soil Erosion and Sedimentation Control (Part 91 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires permits for earth changes which disturb one or more acres of land or which are within 500 feet of a lake or stream.
Michigan Environmental Protection Act (Part 17 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – prohibits any conduct which is likely to pollute, impair, or destroy a lake, stream, wetland, or other natural resource of the state.
Michigan Endangered Species Act (Part 365 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires a permit for activities that could adversely impact threated or endangered plant and animal species or their habitat.
Water Resource Protection Act (Part 31 of of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires a permit for any dredging, grading, or construction of a building within the 100-year floodplain of any river, stream, or lake.
Inland Lakes and Streams (Part 301 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires permits to dredge, fill, or construct, or place structures below the ordinary high water mark and connect any waterway to an inland lake or stream.
Shorelands Protection and Management (Part 323 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – protects areas of the Great Lakes shoreline specifically designated as high risk erosion, flood risk, and environmental areas.
Great Lakes Submerged Land (Part 325 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – regulates construction activities along the Great Lakes shoreline and the over 38,000 square miles of Great Lakes bottomlands, including coastal marshes.
Sand Dunes Protection and Management (Part 353 of the Natural Resources and Environmental Protection Act, 1994 PA 451) - prohibits construction activities, vegetation removal, and other uses involving contour changes that may increase erosion and decrease stability.
Federal
Clean Water Act Section 404 - requires authorization for any discharge of dredged and/or fill material into waters of the United States, including wetlands
Section 10 of the Rivers and Harbors Act of 1899 - requires that regulated activities conducted below the Ordinary High Water (OHW) elevation of navigable waters of the United States be approved/permitted by the U.S. Army Corps of Engineers. Regulated activities include the placement/removal of structures, work involving dredging, disposal of dredged material, filling, excavation, or any other disturbance of soils/sediments or modification of a navigable waterway.
State of Michigan
Part 303, Wetlands Protections, Rules
Part 303, Wetlands Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended
Other State Laws Affecting Wetlands
Soil Erosion and Sedimentation Control (Part 91 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires permits for earth changes which disturb one or more acres of land or which are within 500 feet of a lake or stream.
Michigan Environmental Protection Act (Part 17 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – prohibits any conduct which is likely to pollute, impair, or destroy a lake, stream, wetland, or other natural resource of the state.
Michigan Endangered Species Act (Part 365 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires a permit for activities that could adversely impact threated or endangered plant and animal species or their habitat.
Water Resource Protection Act (Part 31 of of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires a permit for any dredging, grading, or construction of a building within the 100-year floodplain of any river, stream, or lake.
Inland Lakes and Streams (Part 301 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – requires permits to dredge, fill, or construct, or place structures below the ordinary high water mark and connect any waterway to an inland lake or stream.
Shorelands Protection and Management (Part 323 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – protects areas of the Great Lakes shoreline specifically designated as high risk erosion, flood risk, and environmental areas.
Great Lakes Submerged Land (Part 325 of the Natural Resources and Environmental Protection Act, 1994 PA 451) – regulates construction activities along the Great Lakes shoreline and the over 38,000 square miles of Great Lakes bottomlands, including coastal marshes.
Sand Dunes Protection and Management (Part 353 of the Natural Resources and Environmental Protection Act, 1994 PA 451) - prohibits construction activities, vegetation removal, and other uses involving contour changes that may increase erosion and decrease stability.
