State and Federal Wetland Regulations
In 1979, the Michigan legislature passed the Geomare-Anderson Wetlands Protection Act, 1979 PA 203, which is now Part 303, Wetlands Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (NREPA). EGLE has adopted administrative rules which provide clarification and guidance on interpreting Part 303. Some wetlands in coastal areas (called Environmental Areas) are given further protection under Part 323, Shorelands Protection and Management, of the NREPA.
In accordance with Part 303, wetlands are regulated if they are any of the following:
Connected to one of the Great Lakes or Lake St. Clair.
Located within 1,000 feet of one of the Great Lakes or Lake St. Clair.
Connected to an inland lake, pond, river, or stream.
Located within 500 feet of an inland lake, pond, river or stream.
Not connected to one of the Great Lakes or Lake St. Clair, or an inland lake, pond, stream, or river, but are more than 5 acres in size.
Not connected to one of the Great Lakes or Lake St. Clair, or an inland lake, pond, stream, or river, and less than 5 acres in size, but EGLE has determined that these wetlands are essential to the preservation of the state's natural resources and has notified the property owner.
The law requires that persons planning to conduct certain activities in regulated wetlands apply for and receive a permit from the state before beginning the activity. A permit is required from the state for the following:
- Deposit or permit the placing of fill material in a wetland.
- Dredge, remove, or permit the removal of soil or minerals from a wetland.
- Construct, operate, or maintain any use or development in a wetland.
- Drain surface water from a wetland.
EGLE must determine the following before a permit can be issued:
- The permit would be in the public interest.
- The permit would be otherwise lawful.
- The permit is necessary to realize the benefits from the activity.
- No unacceptable disruption to aquatic resources would occur.
- The proposed activity is wetland dependent or
no feasible and prudent alternatives exist.
For more information on permit application review and the criteria for determining public interest, please refer to Section 30311 of Part 303.
In 1984, Michigan received authorization from the federal government to administer Section 404 of the federal Clean Water Act in most areas of the state. A state administered 404 program must be consistent with the requirements of the federal Clean Water Act and associated regulations set forth in the Section 404(b)(1) guidelines. In other states an applicant must apply to the U.S. Corps of Engineers (USACE) and a state agency for wetland, lakes, and streams permits; whereas applicants in Michigan generally submit only one wetland permit application to EGLE and receives federal and state authorization with a wetland permit.
Federal oversight of state-administered 404 programs is primarily the responsibility of the U.S. Environmental Protection Agency. The department's 1983 Memorandum of Agreement (as amended) with USEPA Region 5 outlines the procedures to be followed in program administration. This agreement waives federal review of the vast majority of applications in areas under Michigan's 404 jurisdiction. However, federal agencies must review projects which impact critical environmental areas, or which involve major discharges. These projects are identified in the Memorandum of Agreement as. and include:
- Major Discharges as follows:
- Projects affecting one or more acre of wetland
- New construction of breakwaters or seawalls with a total length of more than 1,000 feet
- Enclosure of more than 300 feet of a stream in one or more segments
- Relocation or channelization of more than 1,000 feet of a stream in one or more segments
- Projects with potential to affect endangered or threatened species as determined by the US Fish and Wildlife Service
- Discharges to waters of another state, suspected to contain toxic pollutants or hazardous substances, located in proximity of a public water supply intake, or within defined state or federal critical areas.
These above projects are called Red Files and require concurrent review by federal partners such as USACE and USFWS. These files may result in additional permit processing time depending on the complexity of the project. At the present time, USEPA reviews about one percent of all applications received. If EGLE determines that an application under Michigan's 404 program is subject to federal review, copies of the public notice are sent to USEPA Region 5, Detroit District Corps, and the U.S. Fish and Wildlife Service. The USEPA is responsible for compiling all federal comments and submitting comments on the federal position to EGLE. These files do not require additional fees beyond those defined by EGLE. These types of projects do not include those also requiring authorization by the US Army Corps of Engineers under Section 10 of the Clean Water Act, which do contain additional fees and requirements as set forth by that agency. These projects utilize the same joint permit application but require separate review processes by the state and federal government resulting in separate permit authorizations.
EGLE may not issue a permit which carries Section 404 authority if the USEPA objects to the project. This is true even if the applicant successfully appeals the state's denial of a permit at the administrative level or through a state court. Section 404 provides for a reversion to Corps processing if a state and the EPA reach an impasse on a project (that is, if the state is prepared to issue a permit, but USEPA continues to object)