2 PROPOSED ADMINISTRATIVE RULES

 

SOAHR 2005-056

 

DEPARTMENT OF ENVIRONMENTAL QAULITY LAND AND WATER MANAGEMENT DIVISION WETLANDS PROTECTION

Filed with the Secretary of State on

 

These rules become effective immediately upon filing with the Secretary of State unless adopted under sections 33, 44, 45a(6), or 48 of 1969 PA 306. Rules adopted under these sections become effective 7 days after filing with the Secretary of State.

 

(By authority conferred on the department of environmental quality by section 30321 of 1994 PA 451, as amended, MCL 324.30319.)

 

Draft March 28, 2006

R 281.924 of the Michigan Administrative Code is amended, as follows: R 281.924 Wetland Identification and Assessments.

Rule 4. (1) When assessing whether a parcel of property or portion of a parcel is

wetlandperforming wetland assessments, as required by section 30321 of THE Act No. 451 of The Public Acts of 1994, as amended, being §324.30321 of the Michigan Compiled Laws, the department shall utilize criteria consistent with the definition of "wetland" provided in section 30301(d) of the Aact  No. 451 of the Public Acts of 1994, as amended, being §324.30321(d) of the Michigan Compiled  Laws,. The department and shall provide a written wetland assessment report to the person who owns or leases the property or his or her agent within 30 days of the on-site evaluation, whether the parcel contains wetland or nonwetland, or both, and the basis for the determination. The department shall  assess evaluate a parcel or any portion of a parcel as identified by the person making the request.

(2)     An assessment of wetlands on a parcel of property by the department may include any of the following, at the discretion of the person making the request:

(a)      The provision of maps and supporting information that show currently mapped wetlands on the property.

(b)      An on-site identification of areas containing wetland and non-wetland on the property.

(c)      An on-site review to confirm the identification of wetland boundaries on the property by a wetland professional.

   (2) (3) When identifying wetlands performing wetland assessments, the department shall rely on visible evidence that the normal seasonal frequency and duration of water is above, at, or near the surface of the area to verify the existence of a wetland. Under normal circumstances, the frequency and duration of water that is necessary to determine an area to be a wetland will be reflected in the vegetation or aquatic life present within the area being considered. A wetland that has not been recently                 or severely disturbed will contain

 

 

predominance, not just an occurrence, of wetland vegetation or aquatic life. If there is a predominance of wetland vegetation, and if there is no direct visible evidence that water is, or has been, at or above the surface, then the department shall use the following characteristics of the soils or substrate to verify the existence of a wetland:

(a)    The presence of a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part of the soil that favor the growth and regeneration of wetland vegetation.

(b)    Physical or chemical characteristics of a soil column that provide evidence of the current and recent degree of saturation or inundation. Characteristics, such as a gleyed or low chroma matrix, mottling, or chemically demonstrated anaerobic conditions, can be utilized to identify the current and recent depth and fluctuation of the water table or inundation.

(3)(4) If the department makes a determination that a wetland otherwise outside of the jurisdiction of the act is essential to the preservation of the natural resources of the state under section 30301(d)(iii) of the Aact No. 451 of the Public Acts of 1994, as amended, being §324.30321(d)(iii) of the Michigan Compiled Laws, the department shall provide the findings, in writing, to the legal landowner or lessee stating the reasons for the determination. In making the determination, the department must find that 1 or more of the following functions apply to a particular site:

(a)    It supports state or federal endangered or threatened plants, fish, or wildlife specified in section 36501 of 1994 PA 457, MCL Act No. 457 of the Public Acts of 1994, as amended, being §324.36501. of the Michigan Compiled Laws.

(b)    It represents what the state has identified as a rare or unique ecosystem.

(c)    It supports plants or animals of an identified regional importance.

(d)    It provides groundwater recharge documented by a public agency.

(4)   (5) Upon the request of a person who owns or leases a parcel of property or his or her agent, the department shall determine if there is no surface or groundwater connection that meets the definition of "contiguous" under R 281.921(l)(b)(iii). The department shall make the determination in writing and shall provide the determination to the person making the request within a reasonable period of time after receipt of the request.

(5)   (6) (a) (1) A person who requests an wetland assessment shall submit a form provided by the department. The form shall contain all information required under section 30321(3) of the Aact No. 451 of the Public Acts of 1994, as amended, being §324.30321(3) of the Michigan Compiled Laws, and shall be accompanied by a check for the appropriate fee as set forth in this rule.

(2)   (b) All fees are nonrefundable.

(3)   (c) A person who owns or leases a parcel of property or his or her agent may request any of the following 3 levels of wetland assessment with corresponding levels of fees:

(a) (i) For a fee of $100.00 $50.00, the department will provide copies of wetland information immediately available for an identified area, including state and federal maps on file with the department that show the approximate location of wetlands on the parcel. In addition, information specified          by section 30321(e), (f), and (g) of the Aact No. 451 of the Public Acts of 1994, as amended,          being §324.30321(e), (f), and (g) of the Michigan Compiled Laws, regarding regulatory processes, limitations, and appeals will be provided to a person who makes a request. An application for this service is limited to not more than an area covering 4 adjoining square miles. This level of service shall be available in counties where the preliminary or final wetland inventory maps in

section 30321 of the act have not been completed. The department shall provide the preliminary or final wetland inventory map in electronic form or a paper copy at cost. Since the information and maps provided will not be based upon an on-site review, they will be useful for planning purposes,

 

 

but the department will not certify where wetlands are and are not specifically located on the given parcel.

(b)   (ii) For a fee of $200.00 $500.00 for 1 acre or less, the department will perform an on-site  assessment wetland identification of a parcel or portion of a parcel that has its boundaries marked by the person who makes the request, to identify and describe areas that are and are not wetland on the site, unless identification and description are not possible under thedue to site conditions of the site, as outlined under (4) subrule (7) of this rule, below. The fee for the service will increase by $50.00

$250.00 per acre or fraction thereof for an assessment area larger than 1 acre. An application for this service is limited to an area of 5 acres or less. If the assessment report determines that the area  assessed or part of the area assessed evaluated is not wetland, then the report will shallstate that the department lacks jurisdiction over the area that is not wetland, if any, and that the determination that an area is not wetland is binding on the department for 3 years from the date of the assessment.

(c)   (iii) For a fee of $150.00 $500.00 for 1 acre or less, the department will perform an on-site review of a mapped, flagged, and otherwise identifiable area to confirm specific boundaries established by a professional wetland consultant professional between wetlands and areas that are not wetlands. The fee for the service will increase by $15.00 $50.00 per acre or fraction thereof to confirm areas identified as wetland and $20.00 per acre or fraction thereof to confirm areas identified as non wetlandfor  larger parcels. The wetland and nonwetland boundaries delineated must be flagged by a wetland consultant professional representing the person who made the request. The boundaries must have been established utilizing methods and procedures consistent with the Act No. 451 of the Public Acts of  1994, as amended, being §324.30319 et seq. of the Michigan Compiled Laws and these rules. If the department finds substantial errors during the confirmation process and the person making the request wishes to proceed, then the department will require that a new delineation wetland boundary be identified by a consultant wetland professional representing the person who made the request be completed and that new fees in the amount of 1/2 of the original fee be submitted for the on-site confirmation of the new delineation wetland boundary and the assessment report. If the assessment report determines that the area assessed or part of the area assessed evaluated is not wetland, then the report will state that the department lacks jurisdiction over the area that is not wetland and that the determination that an area is not wetland is binding on the department for 3 years from the date of the assessment. If documentation of the specific boundary is desired, then the person who is making the request will provide, for department approval, an acceptable and reproducible survey of the agreed upon boundaries.

(iv) The department will provide the report within 20 calendar days of a complete request, for an increased fee reflecting the additional cost to the department. For subsection (c)(ii), this increased fee will be $1500.00 for 1 acre or less and $750.00 per acre or fraction thereof for an assessment area larger than 1 acre. For subsection (c)(iii), this increased fee will be $1500.00 for 1 acre or less, $150.00 per each additional acre or fraction thereof to confirm areas identified as wetland, and $60.00 per each additional acre or fraction thereof to confirm areas identified as non wetland. If weather or other conditions prohibit the completion of the report within 20 calendar days, the department will refund the difference between the higher fee and the normal fee.

(4)   (7) If recent severe disturbances of the site have occurred, for example, removal of native vegetation, disturbance of soils, or diversion of drainage, making it impossible during a routine site visit to determine whether or not the area requested for assessment contains or has contained wetland or nonwetland, then the department will provide the person who made the request with a report that specifies the reasons for its inability to make a determination. The department will include with the report a description of the necessary technical information to be provided by the person who made the

 

 

request in order for the department to make a final assessment wetland identification or confirm a delineated boundary.

   (5) (8) A written request for a reassessment, pursuant to section 30321(5) of the act, shall be submitted to the department no later than 60 days after the receipt of the written assessment report. The department shall conduct the reassessment, if possible, during the same calendar year as the original assessment or as soon as weather or other conditions allow.