Section 281.22. High-risk erosion areas.

(1) Not less than 30 days before the designation of a high-risk erosion area, the department shall  mail  predesignation  letters  to   the affected landowners of record as shown in the last assessment rolls. The letters shall explain that  the  property   is being considered for designation as a high-risk  erosion  area  and shall  invite comments from the affected landowners. The department shall schedule a meeting before the designation is made to explain the proposed designation to property  owners and local governmental agencies.

(2)   The department shall designate a high-risk erosion area upon its finding that recession of the landward edge of the zone of active erosion has been occurring at an average annual rate of 1 foot or more per year, based on a minimum period of 15 years. Similar recession rates along a reach of shoreland shall be grouped and an average calculated for each reach. The designation shall contain the projected recession distance used to establish the setback line for any future permanent structure. The projected recession distance shall be based on a projected 30-year  period of recession for small permanent structures and a projected 60-year period for large permanent structures. An additional 15 feet shall be  included  in  the   projected recession   distance  to   provide   protection   from    severe

short-term erosion losses. This additional 15 feet shall replace, and not be in addition to, the 15 feet  previously  added  due  to  recession    rate variability. If this change  results in an increase in the projected recession distance, it shall not be effective until the landowner  receives written notice.

(3)   In designating a high-risk erosion area, the department shall  notify the landowner of record and the local government agency affected thereby. The notice of designation shall be delivered   personally  or  sent,  by certified mail, to the landowner of record at the  address   given  in   the last assessment roll.

(4)     The notice of designation to affected landowners and  local governmental agencies shall include all of the following information:

(a)  The authority and reasons for the designation of  high-risk   erosion areas.

(b)   A description, graphic or otherwise, of the limits  of  the   high-risk erosion area.

(c)   An explanation of any regulatory measures which may be required in the   high- risk erosion area and the regulatory role  of  the   local governmental agency.

(d)  The procedure by which the designation may be appealed.

(5)    The department shall consider additional high-risk erosion areas as may be proposed by local governmental agencies,    citizens,   or   interested groups.

(6)   A high-risk erosion area designation may be removed or the projected recession distance may be modified on an individual parcel or parcels upon the presentation of topographic surveys, low-altitude, vertical, aerial  photographs,  or   other documentation which the department can readily use to

determine average annual recession rates. Upon department acceptance of the surveys, photographs,   or   other   documentation   as   accurate,    the department will determine an updated recession rate  or  rates  for  the affected parcel or parcels. If the updated data results in a modification of the recession rate or rates, consistent with the provisions of   subrule  (2) of this rule, the projected recession distance shall  be   modified   or   the

designation shall be removed for the affected    area    within     60    days. Requests for modification can only be made once every 5 years  or upon   the sale of the property.

(7)   In the absence of an approved local ordinance  enacted  pursuant   to the provisions of sections 7, 8, 9, and 10 of the act, any person or local governmental agency proposing to erect, install, move, or enlarge a permanent structure on a parcel, any portion of which is in a designated high-risk erosion area, shall submit a permit application  to   the department for its review. The permit application shall contain  all of the following information:

(a)  ) A legal description of the property.

(b)   A description of the proposed permanent structure.

(c)    A sketch of the proposed site which shows the location of  the proposed permanent structure in relation to the location of the property lines and prominent features.

(d)  The signature and address of the applicant.

(8)   A permit application to erect, install, or move a permanent structure in a designated high-risk erosion area shall be  approved  if  the   proposed  permanent structure meets  or  exceeds  all   of   the  following requirements:

(a)  The proposed permanent structure or  addition  is   landward   of   the setback line.

(b)   Small permanent structures that are erected, installed, or moved into the area between the setback line and a distance twice the required setback distance shall be readily moveable structures, except for those small permanent structures located on parcels which do not have access of sufficient width and acceptable grade to allow for relocation.

(c)   A permanent structure shall not be erected, installed, or moved lakeward of the setback line in a high-risk erosion area without a special exception, as provided by subrules (9) and (10) of this rule.

(d)   The proposed permanent structure meets the requirements of  other applicable state laws, including the provisions of Act No. 222 of the Public Acts of 1976, as amended, being S281.651 et seq.    of  the Michigan Compiled Laws.

(e)    Review and approval of the structure design to ensure the building is a readily moveable structure shall  be incorporated  into  the  department permit process.

(9)    A special exception shall be granted and a portion of the required setback distance waived to erect,  install,  or  move   a  small  readily moveable structure lakeward of the setback line on a substandard parcel if all of the following provisions are complied with:

(a)    If a sanitary sewer is not used, the septic system, tile field, or other waste- handling facility shall be located at least as far landward as the lakeward edge of the building.

(b)   The readily moveable structure shall be located as far landward of the erosion hazard line as local zoning restrictions allow.

(c)   The readily moveable structure shall be designed and constructed in accordance with  proper  engineering   standards  and   building   moving restrictions applicable to the subject area. Review and approval of the design to ensure that the building is a readily moveable  structure shall be incorporated into the department permit process.

(d)   The readily moveable structure is not less than 30 feet landward of the erosion hazard line and is not located on a lakeward  facing  slope  of 60% or more.

(e)  The readily moveable structure meets the requirements of  other applicable state laws, including the provisions of Act No. 222 of the Public Acts of 1976, as amended, being S281.651 et seq.  of  the   Michigan Compiled Laws.

(10)   If a substandard parcel does not have access to and from the structure site of sufficient width and acceptable grade to erect or  move   a readily moveable structure, or if the application is for a large permanent structure on a substandard parcel, a special exception shall be granted to utilize a shore protection structure in place of a portion  of the required setback distance. The special exception shall be granted only if all of the following provisions are complied with:

(a)    If a sanitary sewer is not used, the septic system, tile field, or other waste- handling facility shall be located at least as far landward as the building.

(b)   The permanent structure shall be located as far  landward  of  the erosion hazard line as local zoning restrictions allow and shall  be located landward of the erosion hazard line.

(c)   The shore protection structure shall be designed to meet or exceed a 20-year storm event at the site  for   small  permanent   structures  and  a 50-year storm event at the site for large permanent structures and  a professional engineer shall certify that the structure has been designed and will be constructed in  accordance  with   these standards.   If  the structure is constructed in the waters of the Great Lakes  or  lies below the ordinary high watermark, a permit pursuant to the provisions of  Act No. 247 of the Public Acts of 1955, as amended, being S322.701 et seq. of the Michigan Compiled Laws, shall be obtained  for  the   shore   protection structure.

(d)  The permanent structure shall be a minimum of 30 feet from the shore protection structure. If the bluff or dune is unstable due to height, slope, wind erosion, or groundwater seepage, the department may require a setback of more than 30 feet or an engineered bluff stabilization plan, or both. In areas of steep slopes, a greater setback may be necessary   to provide access for maintenance equipment and a safe building site.

(e)   If the application is for a large permanent structure the department shall require compliance with both of the following provisions:

(i)    The establishment of an escrow account to maintain the  approved shore protection structure or bluff stabilization, or both. The amount required in the escrow account shall be  reasonable and  based on  the project design.

(ii)   Notice in the disclosure statement or deed that a portion of the required setback distance has been waived.

(f)   The proposed permanent structure meets  the  requirements  of  other applicable state laws, including the provisions of Act No. 222 of the Public Acts of 1976, being S281.651 et seq. of the Michigan Compiled Laws.

(11)    A special exception shall be granted, and a portion of the required setback distance  waived,  for  the  installation   of  an  approved    shore protection project if all of the following conditions are met:

(a)    A local agency is contractually responsible for the perpetual care of the shore protection structure. The responsibility will be defined in a written agreement between the department and the local agency. The local agency shall agree to perform maintenance or repairs to maintain the integrity of the shore protection. The local agency shall   submit   to   the department a financial plan for maintaining the structure.

(b)   The shore protection structure is designed and constructed to meet or exceed a 50- year storm standard. The design and construction shall be certified by a professional engineer. If the structure is constructed   in the waters of the Great Lakes or lies below the ordinary high watermark, a permit pursuant to the provisions of Act No. 247 of the Public Acts of 1955, as amended, being S322.701 et seq. of the Michigan Compiled Laws, shall be obtained for the shore protection structure.

(c)   A favorable finding is made by the local agency, with input by the department, that a greater public good exists to support the use of a shore protection structure rather than a natural shoreline in terms of all of the following:

(i)   The preservation of fish and wildlife habitat.

(ii)   The value to the entire community of a natural shoreline as opposed to the value to the entire community of additional development that is made possible by the shore protection.

(iii)   The impact of the loss of sand movement along the shoreline.

(iv)    The impact on erosion of land in the immediate area of the shore protection structure.Before making the finding, the local agency shall hold a public hearing.Notice shall be sent to all riparians within 300 feet of the  proposed shore protection structure and to the department.

(d)  A favorable finding is made by the department that a greater public good exists to support the use of a shore protection structure rather than a natural shoreline in terms of all of the following:

(i)   The preservation of fish and wildlife habitat.

(ii)   Protection of the public trust.

(iii)   The impact of the loss of sand movement along the shoreline.

(iv)   The impact on the erosion of land in the immediate area of the shore protection structure.

(e)   There is a minimum of 30 feet from the shore protection to any permanent structure. If the bluff or dune is unstable due to height, slope, wind erosion, or groundwater seepage, the department may require a setback of more than 30 feet or an engineered bluff or dune stabilization plan, or both. In areas of steep slopes, a greater setback may be necessary to provide access for maintenance equipment and a safe building site. If the parcel has existing permanent structures which are less than 30 feet from the proposed  shore  protection,  there  shall   be   sufficient access to permit the maintenance and repair of the shore protection.

(f)   Shore protection is already a common feature of the shoreline lying within 1,000 feet of the proposed shore protection structure.

(12)   A permit application to make an addition to an existing permanent structure in a designated high-risk erosion area shall be approved if the addition meets or exceeds the required setback distance.

(13)    A permit application to make an addition to an existing readily moveable structure which is not in compliance with the required setback distance of a designated high-risk erosion area shall be approved if all of the following provisions are complied with:

(a)    The existing building with the addition will meet the definition of a readily moveable structure.

(b)   The proposed addition does not  reduce  the  permanent  structure's distance from the erosion hazard line.

(c)   On low bluffs, the proposed addition is not less than 20 feet landward of the erosion hazard line.

(d)  On high bluffs, the existing permanent structure and   the  proposed addition are not less than 30 feet landward of the erosion hazard line.

(14)     An application to make an addition to an existing small nonconforming permanent  structure   which  is  not  a   readily   moveable structure  shall  be   approved if, at the date of construction, the provisions of either subdivision (a) or (b) of  this subrule and the provisions of either subdivision (c) or (d) of this subrule are complied with as follows:

(a)   The total of all floor space added  shall  not   exceed  25%  of   the foundation size of the permanent structure. The foundation size shall be determined as of the time the permanent structure became nonconforming. When the 25% limit on additions has been reached, no further additions can be made for the remaining life of the structure. The addition shall  not reduce the permanent structure's distance from the erosion hazard line.

(b)   The addition shall meet the definition of a readily moveable structure and the addition shall be on the landward side of the original permanent structure. A permit may only be issued if the property owner, as a condition for permit, agrees to relocate the readily moveable portion of the permanent structure to a location landward of the setback line when so ordered by the department. The department may make such an order  only when the foundation of the existing structure is undermined by erosion.

(c)   On low bluffs, the proposed addition is not less than 20 feet landward of the erosion hazard line.

(d)  On high bluffs, the existing small  permanent  structure   and  the addition are not less than 30 feet landward of the erosion hazard line.

(15)    If a nonconforming structure deteriorates or becomes damaged, it may be restored to its condition before the deterioration or damage if the repair cost is not more than 60% of the replacement value. If the  cost of restoring the nonconforming structure is more than 60%, but less than 100%, of its  replacement value, it may be reconstructed  if   all of the following conditions are met:

(a)  The permanent structure was damaged by a force other  than  erosion.

(b)   The permanent structure, if rebuilt in its existing location, would be not less than 20 feet landward of the erosion hazard line.

(c)   The reconstructed building would be a readily moveable structure.If the building is 100% destroyed or declared a total loss for insurance purposes, the requirements for new permanent structures shall apply.

(16)    If a permanent structure is relocated, all construction materials, including foundations, shall be removed or properly disposed of as a part of the moving operation.

(17)   After the effective date of these rules, the slope and height of the dune or bluff shall not be artificially altered to affect the setback requirement under these rules unless the alteration is in compliance with a permit issued pursuant to the provisions of Act No. 347 of the Public Acts of 1972, as amended, being S281.101 et seq. of the Michigan Compiled Laws, and Act No. 247 of the Public Acts of  1955,  as amended,  being S322.701 et seq. of the Michigan Compiled Laws, if the  alteration   or

fill  extends into the waters of the Great Lakes  or   below  the  ordinary  high  watermark elevation.

(18)     Not more than 60 days after receipt of a complete permit application, the department shall send notice of its approval or disapproval to the applicant. The reasons for disapproval shall be stated and sent by certified mail. A permit application which   does   not   require field investigation shall be processed within 20 days.

(19)   Approval of a permit does not exempt the applicant from complying with other statutes, ordinances, or rules and regulations.

(20)   Any aggrieved party who contests the designation   of  a  high-risk erosion area, the disapproval of a permit application, or the increase in a projected recession distance shall be granted a hearing if a petition is filed with the department not more than 60 days  after  the   designation letter, the notice of disapproval, or the notice of  increase in projected recession distance is sent. Such petition shall be sent to the director of the Department of Natural Resources, P.O. Box 30028, Lansing, Michigan 48909. The hearing shall be conducted in accordance with the provisions of Act No. 306 of the Public Acts of 1969, as amended, being S24.201 et seq.of the Michigan Compiled Laws.

(21)   The landowner of record and the local governmental agency shall be sent a notice, by certified mail, if the  high-risk    erosion   area designation is removed.

(22)    The department shall update shoreland recession studies every 10 years to reflect varying lake levels and changes in erosion rates. Areas of the shoreland having updated long-term recession rates below one foot per year shall have the high-risk erosion area designation removed by the department. The department shall notify affected property owners and local units of government of changes in projected recession distances  as  a result of updated information. Notifications to property owners  shall   be sent by certified mail to the address listed in the  last tax  assessment roll.

(23)   If the local unit of government has an approved ordinance  enacted pursuant to the provisions of section 7, 8, 9, or 10 of the act, a period of 1 year from notification by the  department   of  any  change  in  setback requirements shall be provided to permit the  local  unit   to   amend   the ordinance to meet the revised setback requirements.

(24)   If the department determines that the requirements  set   forth  in these rules are not being upheld by a local unit of government which has an approved ordinance, the department shall  contact  the  local  agency  to identify, discuss and attempt to resolve any problems. If the  problem cannot be informally  resolved,   the  department   shall then notify the community, in writing, of its determination. The notice  shall  contain the specific reasons why the department believes the local unit of government has not upheld the approved ordinance. The local unit of government shall be provided a period of 60 days to  respond  to  the   department.   If   the department further determines that the local unit of government has not made sufficient changes to its ordinance administration or otherwise explained its actions, the department shall withdraw its approval and resume its high-risk erosion area permitting authority within the jurisdiction.

(25)  The setbacks established by the department shall not be construed as limiting local units of government from establishing larger  setbacks.

(26)   All high-risk erosion area designations   in  existence   on  the effective date of these rules shall remain in full force and effect.

History: 1979 AC; 1981 AACS; 1992 AACS.