DEPARTMENT OF ENVIRONMENTAL QUALITY

                         LAND AND WATER MANAGEMENT

                          GREAT LAKES SHORELANDS


(By authority conferred on the department of environmental quality by section 
32312 of Act No. 451 of the Public Acts of 1994, as amended, being S324.32312 
of the Michigan Compiled Laws)


R 281.21 Definitions.
  Rule 1. (1) As used in these rules:
  (a) "Act" means Part 323 oF Act No. 451 of the  Public  Acts  of  1994,  as 
amended, being Section 324.32301 et seq. of the Michigan Compiled  Laws,  and 
known as shorelands protection and management.
  (b) "Alteration of vegetation" means to  change  the  natural  density  and 
composition of plants by human activity such as  mowing,  cutting,  clearing, 
spraying, burning, trimming, thinning, and other means.
  (c) "Erosion hazard line" means the line along the shoreland  that  is  the 
landward edge of the zone of active erosion or the line where the 583.0  feet 
international Great Lakes datum contour on  Lake  Michigan,  the  582.2  feet 
international Great Lakes datum contour on Lake  Huron,  or  the  603.3  feet 
international Great Lakes datum contour on Lake Superior meets the shoreland, 
whichever is furthest landward.
  (d) "High bluff" means a bluff or dune that is more than 25 feet in  height 
measured from the appropriate elevation contour set forth in  the  definition 
of erosion hazard line.
  (e) "Low bluff" means a bluff or dune that is 25 feet  or  less  in  height 
measured from the appropriate elevation contour set forth in  the  definition 
of erosion hazard line.
  (f) "Nonconforming structure" means a permanent structure  which  does  not 
conform to the required setback distance at the time of designation or  which 
became nonconforming due to erosion or became nonconforming due to  a  change 
in the required setback distance.  Permanent structures that are  constructed 
in violation of these rules shall  not  be  considered  to  be  nonconforming 
structures.
  (g) "One hundred-year flood" means a flood that has a l%  chance  of  being 
equaled or exceeded in any given year.
  (h) "Parcel" means a continuous area or acreage of land that is  under  the 
same ownership at the time of designation.
  (i) "Permanent structure" means any 1 of the following structures  that  is 
erected, installed, or moved on a parcel of property:
  (i) A residential building.
  (ii) A commercial building.
  (iii) An industrial building.
  (iv) An institutional building.
  (v) A mobile home.
  (vi) Accessory and related buildings.
  (vii) A swimming pool or deck that has a roof or walls.
  (viii) Septic systems.
  (ix) Tile fields.
  (x) Other waste-handling facilities.
A permanent structure shall be considered small if it has a  foundation  size 
of 3,500 square feet or less and less than 5 individual  living  units.   All 
other permanent structures shall be considered large.  "Permanent  structure" 
does not include recreational vehicles, travel trailers, swimming  pools,  or 
decks constructed on pilings if the pool or deck does  not  have  a  roof  or 
walls.  A "Permanent Structure" also does not  include  separate  appurtenant 
structures which  have  less  than  225  square  feet,  which  are  used  for 
picnicking or storing of  recreational  or  lawn  equipment,  and  which  are 
constructed in a manner  that  facilitates  easy  removal.   The  appurtenant 
structure shall not have a permanent foundation and shall not be  used  as  a 
residential facility.
  (j) "Projected recession distance" means the distance, in feet,  determined 
by the department under R 281.22.
  (k) "Readily moveable structure" means a small permanent structure which is 
designed, sited, and constructed to accomplish  relocation  at  a  reasonable 
cost relative to other structures of the same size and construction.   Access 
to and from the site shall be of sufficient width  and  acceptable  grade  to 
permit the structure to be relocated.   New  construction  and  installations 
shall  meet  the  following  criteria  to  be  considered  readily   moveable 
structures:
  (i) The buildings shall be on pilings, a basement, or crawl space.   Except 
as noted in paragraph (ii) of this subdivision,  a  slab-on-grade  foundation 
does not meet this criterion.
  (ii) Above-grade walls shall be stud  wall  or  whole  log  construction.   
Above- grade walls that are constructed of masonry,  including  stone  walls, 
concrete poured, or concrete block walls do not meet this criterion.
Existing permanent structures shall be considered readily moveable structures 
if the cost of relocation landward of the required setback  distance  is  not 
more than 25% of the replacement cost of the structure  or  if  the  existing 
structure meets the criteria for new construction in this subdivision.  A  1- 
or 2-car garage which is bolted to a slab foundation and which does not  have 
plumbing or interior walls is a readily moveable structure if  it  meets  the 
remainder of the requirements specified in this subdivision.  Septic systems, 
tile fields, or other waste-handling  facilities  are  not  readily  moveable 
structures.
  (l) "Required setback  distance"  means  the  least  distance  a  permanent 
structure can be constructed from the erosion hazard line without  a  special 
exception.  The required setback distance is calculated using  the  following 
criteria:
  (i) For low bluffs, the required setback distance shall be at the projected 
recession distance from the erosion hazard line.
  (ii) For high bluffs, the required setback distance is calculated by adding 
1.0 to the product of the percentage points of slope over 25% and 0.05  to  a 
maximum of 2.O.  The answer is multiplied by the projected recession distance 
in feet.  The following table shows sample calculations using this formula:

    Required Setback

Percent Slope 1.0 (Percent Slope over 25% x 0.05)     Multiplier 25  1.0+  (0 
x  0.05) =   1 30  1.0+  (5 x  0.05) =   1.25 35  1.0+  (10 x  0.05) =    1.5 
40  1.0+  (15 x  0.05) =   1.75 45  1.0+  (20 x  0.05) =   2.0

The slope of the bluff or dune is measured over a  50-foot  distance  on  the 
lower portion of the lakeward facing slope of the dune or bluff.
  (iii) The required setback distance shall not be greater than the projected 
recession distance from the top of the lakeward facing slope  of  a  dune  or 
bluff.
  (iv) For bluffs and dunes which have slopes of more than 60% and which  are 
more than 100 feet in elevation above  the  appropriate  lake  elevation  set 
forth in the definition of erosion hazard line, the required setback distance 
shall be established not less than 30 feet landward of  the  lakeward  facing 
slope of the dune or bluff.
  (m) "Structure zone" means an area within an  environmental  area  where  a 
permit under this part is not required to engage in the activities  specified 
in R 281.23(6).
  (n) "Setback line" means the line which is the  required  setback  distance 
landward of the erosion hazard line and which is the lakeward limit  for  the 
construction of permanent structures without a special exception.
  (o) "Substandard parcel" means a lot or parcel of record or a lot or parcel 
which is described in a land contract or deed that is executed and  delivered 
before the designation of a high-risk erosion area and which  does  not  have 
adequate depth to provide the required  setback  distance  from  the  erosion 
hazard line for a permanent structure.  “Substandard Parcel” also means those 
lots which are legally created after the designation of a  high-risk  erosion 
area and which  have  sufficient  depth  to  meet  setback  requirements  for 
permanent structures,  but  which  subsequently  become  substandard  due  to 
erosion processes or become substandard due  to  a  change  in  the  required 
setback distance.
  (p) "Wetland-oriented birds" means any of the following:
  (i) Waterfowl.
  (ii) Shorebirds.
  (iii) Gulls.
  (iv) Terns.
  (v) Herons.
  (vi) Rails.
  (vii) Bitterns.
  (viii) Other birds associated with coastal or wetland areas.
  (q) "Wetland-oriented mammals" means any of the following:
  (i) Muskrats.
  (ii) Mink.
  (iii) Beavers.
  (iv) Otter.
  (v) Other mammals associated with coastal or wetland habitats.
  (r) "Zone of active erosion" means the area  of  the  shoreland  where  the 
disturbance or loss of  soil  and  substrate  has  occurred  with  sufficient 
frequency to cause unstable slopes or prevent vegetation of the area.
  (2) The terms defined in the act have the same meanings when used in  these 
rules.

  History:  1979 AC; 1981 AACS; 1992 AACS; 1998-2000 AACS.


R  281.22   High-risk erosion areas.
  Rule 2. (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.


R 281.23 Environmental areas.
  Rule  3.  (1)  In  determining  whether  an  area  is  necessary  for   the 
preservation and maintenance of fish, all of  the  following  uses  shall  be 
considered:
  (a) Spawning, which is the placement and fertilization of eggs by fish  for 
the propagation of young fish.
  (b) Nursery, which is the utilization  of  an  area  by  young  fish  as  a 
sheltered habitat in which to feed and grow.
  (C) Feeding, which is the process  of  obtaining  and  ingesting  plant  or 
animal matter necessary for maintaining growth and life functions.
  (d) Protection, which is the utilization of an area as  escape  cover  from 
predators or unsuitable environmental conditions.
  (e) Migration, which is a daily or seasonal movement.
  (2) In determining whether an area is necessary for  the  preservation  and 
maintenance of wildlife, all of the following uses by wetland-oriented  birds 
and wetland-oriented mammals shall be considered:
  (a) Breeding, which is the process of courting, pairing, and mating.
  (b) Nesting, which is the process of laying, incubating, and hatching eggs.
  (c) Rearing of young, which is the feeding and protection of young.
  (d) Feeding, which is the process  of  obtaining  and  ingesting  plant  or 
animal matter necessary for maintaining growth and life functions.
  (e) Resting, which is a period  of  inactivity  in  the  daily  routine  or 
seasonal migration.
  (3) Not less than 30 days before designation of  environmental  areas,  the 
department shall mail predesignation letters to affected landowners of record 
as shown in the last assessment rolls.  The letter  shall  explain  that  the 
property is being considered for designation as  an  environmental  area  and 
shall invite comments from the affected  landowners.   The  department  shall 
schedule a meeting before designation to explain the proposed designation  to 
property owners and local governmental agencies.
  (4) The department shall designate environmental  areas  determined  to  be 
necessary for the preservation and maintenance of fish or wildlife, or both.
The department shall personally deliver the notice of designation or send  it 
by certified mail to the landowner of record at the address given in the last 
assessment roll and to the local governmental agency.
  (5) The notice of designation to affected landowners and local governmental 
agencies shall include all of the following information:
  (a) The authority and reasons for designation of environmental areas.
  (b) A description or map of the limits of the environmental area.
  (c) An explanation of any regulatory  measures  that  may  be  required  in 
environmental areas and the regulatory role of the local governmental agency.
  (d) The procedure by which the designation may be appealed.
  (6) The following shoreland uses in an environmental area require a  permit 
from  the  department  in  accordance  with  these  rules  or  from  a  local 
governmental agency under an ordinance approved by the department:
  (a) Dredging, filling, grading, or other alterations of the soil.
  (b) Alteration of natural drainage, but not including the  reasonable  care 
and maintenance of established drainage improvement works.  A permit  is  not 
required for maintenance of existing dikes.
  (c) Alteration of vegetation utilized by fish or wildlife, or both, for the 
uses covered in subrules (1) and (2) of this rule.
A permit may be issued  if  the  department  finds  that  the  alteration  of 
vegetation is dependent upon being located in an environmental area, no other 
feasible and prudent alternatives exist, and that  the  alteration  will  not 
adversely impact essential  fish  or  wildlife  habitat.   A  permit  is  not 
required for the following:
  (i)  The  removal  of  tree  branches  that  threaten  existing   permanent 
structures or public safety.
  (ii) The pruning of trees that have a diameter at breast height of 3 inches 
or more for a view of a Great Lake if the area being pruned does  not  exceed 
40 feet in width and 10 feet above ground level.
  (iii) Maintenance of previously permitted  trails  and  boardwalks  through 
environmental areas.  Maintenance  is  limited  to  the  trail  or  boardwalk 
surface to a height of 10 feet above the ground.
  (d) The placement of permanent structures.
  (7) Farming of lands within the environmental area  is  allowed  without  a 
permit if all of the following provisions are complied with:
  (a) Artificial draining, diking, dredging, or filling is not used.
  (b) The natural contour of the land is not altered.
  (c) Only normal farming  implements  and  generally  accepted  agricultural 
practices are used.
  (d) The environmental area is utilized by a person who is  engaged  in  the 
business of farming, and the land is  to  be  used  for  the  production  and 
harvesting of agricultural products.
  (8) The pumping of water into an environmental area is  allowed  without  a 
permit.
  (9) A structure zone that is not more than  12,000  square  feet  shall  be 
delineated for all parcels of land which  are  totally  included  within  the 
boundaries of an environmental area at the time  of  designation.   Structure 
zones will typically be located adjacent  to  or  in  proximity  to  existing 
roadways, within upland ridges or previously disturbed areas, and to minimize 
human disturbance to surrounding fish and wildlife  habitat.   The  structure 
zone shall be configured to minimize fragmentation of the environmental areas.
If  a  parcel  has  less  than  12,000  square  feet  of  land  outside   the 
environmental area, then a structure  zone  shall  be  delineated  which,  in 
conjunction with the land outside the environmental area, shall total  12,000 
square feet.  Use of a structure zone  is  subject  to  all  other  statutes, 
ordinances, and rules and regulations.
  (10) The department shall consider additional environmental areas as may be 
proposed by local governmental agencies, citizens, or interested groups.
  (11) In the absence of an approved zoning ordinance enacted under  sections 
7,8,9, and 10 of the act, any person or local governmental  agency  proposing 
one of the uses regulated in subrule (6) of this rule outside  the  structure 
zone or proposing a change in the location of a structure zone  shall  submit 
to the department a permit application for  the  proposed  use.   The  permit 
application shall contain all of the following:
  (a) A legal description of the property.
  (b) A drawing of the site with the proposed project clearly shown.
  (c) A detailed description of the proposed project.
  (d) The signature and address of the applicant.
  (12) A permit application, as described in subrule (11) of this rule, shall 
be approved if both of the following conditions are satisfied:
  (a) The adverse effects to the uses described in subrules (1)  and  (2)  of 
this rule are minimal and are mitigated to the maximum extent feasible.
  (b) A feasible  and  prudent  alternative  to  the  proposed  plan  is  not 
available.
  (13) Not more than 60 days after  receipt  of  a  permit  application,  the 
department shall send to the applicant, by certified mail, a  notice  of  its 
approval or disapproval.  In case of disapproval, the department shall  state 
the  reasons  for  disapproval.   The  department  shall  process  a   permit 
application that does not require field investigation within 20 days.
  (14) Approval of a permit does not exempt the applicant from complying with 
other statutes, ordinances, and rules and regulations.
  (15) Any aggrieved party that contests the designation of an  environmental 
area or the disapproval of a permit application shall be granted a hearing if 
the party files a petition with the department not more than  60  days  after 
the designation letter or the notice of disapproval is sent.  The party shall 
send the petition to the director of the Department of Environmental Quality, 
P.O.
BOX 30458, Lansing, Michigan  48909-7958.  The department shall  conduct  the 
hearing in accordance with sections 71 to 87 of Act No.  306  of  the  Public 
Acts of 1969, as amended, being ''24.271 to 24.287 of the  Michigan  Compiled 
Laws, and R 299.3071 to R 299.3081 of the Michigan Administrative Code.
  (16) The department shall send  the  landowner  of  record  and  the  local 
governmental agency a notice by certified  mail  if  the  environmental  area 
designation is removed.
  (17) All environmental area designations in existence on the effective date 
of these rules shall remain in full force and effect.

  History:  1979 AC; 1981 AACS; 1998-2000 AACS.


R  281.24   Flood risk areas.
  Rule 4. (1) Any area which is within the 100-year floodplain  of  a   Great 
Lake or a connecting waterway,  as  identified  in  any   of   the   approved 
floodplain delineation studies set forth in this subrule, is designated as  a 
flood risk  area.  The   following   floodplain   delineation   studies   are 
adopted in these rules by reference:
  (a) Flood insurance study, city of Algonac, Michigan,  St.  Clair   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, April, 1977.
  (b) Flood insurance study, township of  Bangor,   Michigan,   Bay   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, January, 1979.
  (c) Flood insurance study, township of Berlin,  Michigan,  Monroe   county, 
federal emergency management agency, federal insurance administration, May 3, 
1982.
  (d) Flood insurance study, charter  township   of   Brownstown,   Michigan, 
Wayne county,  federal  emergency  management   agency,   federal   insurance 
administration, February 16, 1982.
  (e) Flood  insurance  study,  township  of   Caseville,   Michigan,   Huron 
county, United States department of housing and  urban  development,  federal 
insurance administration, February, 1977.
  (f) Flood insurance study, township of   Chesterfield,   Michigan,   Macomb 
county, United States department of housing and  urban  development,  federal 
insurance administration, January, 1978.
  (g) Flood insurance study, township of Clay, Michigan,  St.  Clair  county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, June, 1978.
  (h) Flood insurance study, township of East China,  Michigan,   St.   Clair 
county, United States department of housing and  urban  development,  federal 
insurance administration, January, 1978.
  (i) Flood insurance study, city of East Tawas,  Michigan,   Iosco   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, September, 1977.
  (j) Flood insurance study, township of Erie,   Michigan,   Monroe   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, March, 1978.
  (k) Flood insurance study, city of  Escanaba,   Michigan,   Delta   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, September, 1977.
  (l) Flood insurance study, village of  Estral   Beach,   Michigan,   Monroe 
county,   federal   emergency   management    agency,    federal    insurance 
administration, May 2, 1983.
  (m) Flood insurance study,  township  of  Ford   River,   Michigan,   Delta 
county, United States department of housing and  urban  development,  federal 
insurance administration, June, 1977.
  (n) Flood insurance study, township of Fort Gratiot,  Michigan,  St.  Clair 
county, United States department of housing and  urban  development,  federal 
insurance administration, June, 1978.
  (o) Flood insurance study, township of  Fraser,   Michigan,   Bay   county, 
federal emergency management  agency,   federal   insurance   administration, 
September, 1979.
  (p) Flood insurance study,  township  of   Frenchtown,   Michigan,   Monroe 
county, United States department of housing and  urban  development,  federal 
insurance administration, March, 1977.
  (q) Flood insurance study, city of Gibraltar,   Michigan,   Wayne   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, December, 1978.
  (r) Flood insurance study, city of Gladstone,   Michigan,   Delta   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, September, 1977.
  (s) Flood insurance study, township  of  Grosse   Isle,   Michigan,   Wayne 
county, United States department of housing and  urban  development,  federal 
insurance administration, February, 1980.
  (t) Flood insurance study, township of Hampton,   Michigan,   Bay   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, February, 1978.
  (u) Flood insurance study,  city  of  Harbor   Springs,   Michigan,   Emmet 
county, United States department of housing and  urban  development,  federal 
insurance administration, November, 1976.
  (v) Flood  insurance  study,  township  of   Harrison,   Michigan,   Macomb 
county,   federal   emergency   management    agency,    federal    insurance 
administration, November 5, 1980.
  (w) Flood insurance study, township of Ira, Michigan,  St.  Clair   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, September, 1979.
  (x) Flood insurance study, township of Kawkawlin,  Michigan,  Bay   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, August, 1978.
  (y) Flood insurance study, township of LaSalle,  Michigan,  Monroe  county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, August, 1977.
  (z) Flood insurance study, city of Luna Pier,  Michigan,   Monroe   county, 
federal emergency management  agency,   federal   insurance   administration, 
December 1, 1981.
  (aa) Flood insurance study, city of  Monroe,   Michigan,   Monroe   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, December, 1976.
  (bb) Flood insurance study, township of Monroe,  Michigan,  Monroe  county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, June, 1977.
  (cc) Flood insurance study, city of Muskegon,  Michigan,  Muskegon  county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, December, 1976.
  (dd) Flood insurance study, township  of   Muskegon,   Michigan,   Muskegon 
county, United States department of housing and  urban  development,  federal 
insurance administration, August, 1977.
  (ee) Flood insurance study, city  of  New   Baltimore,   Michigan,   Macomb 
county, United States department of housing and  urban  development,  federal 
insurance administration, March, 1978.
  (ff) Flood insurance study, city of North  Muskegon,   Michigan,   Muskegon 
county, United States department of housing and  urban  development,  federal 
insurance administration, November, 1976.
  (gg) Flood insurance study, city of Norton   Shores,   Michigan,   Muskegon 
county, United States department of housing and  urban  development,  federal 
insurance administration, September, 1977.
  (hh) Flood  insurance  study,  township  of   Pinconning,   Michigan,   Bay 
county, United States department of housing and  urban  development,  federal 
insurance administration, March, 1978.
  (ii) Flood insurance study, city  of  St.  Clair,   Michigan,   St.   Clair 
county, United States department of housing and  urban  development,  federal 
insurance administration, December, 1977.
  (jj) Flood insurance study, township of St. Clair,  Michigan,   St.   Clair 
county, United States department of housing and  urban  development,  federal 
insurance administration, February, 1978.
  (kk) Flood insurance study, city of St. Clair  Shores,   Michigan,   Macomb 
county, United States department of housing and  urban  development,  federal 
insurance administration, February, 1978.
  (ll) Flood insurance study, township of Sims,  Michigan,   Arenac   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, December, 1977.
  (mm) Flood insurance study, village of Suttons  Bay,   Michigan,   Leelanau 
county, United States department of housing and  urban  development,  federal 
insurance administration, December, 1976.
  (nn) Flood  insurance  study,  township  of   Wisner,   Michigan,   Tuscola 
county, United States department of housing and  urban  development,  federal 
insurance administration, November, 1977.
  (oo) Flood insurance study, city of Wyandotte,  Michigan,   Wayne   county, 
United  States  department  of  housing  and   urban   development,   federal 
insurance administration, November, 1977.
  (2) The documents adopted in this rule are available   from   the   Federal 
Insurance Administration, Federal Emergency Management   Agency,   175   West 
Jackson Boulevard, Chicago, Illinois 60604, at  a  cost  at   the   time   of 
adoption of these rules of $5.00 each; the Michigan  Department  of   Natural 
Resources, Land and Water Management Division, P.O.   Box   30028,   Lansing, 
Michigan 48909, at no charge; and the local unit of government.
  (3) The department may designate additional flood risk  areas   which   are 
located within the 100-year floodplain of a Great  Lake   or   a   connecting 
waterway. The following information and studies may be  used  in  delineating 
the flood risk areas:
  (a) Current floodplain information reports by the   United   States   army, 
corps of engineers.
  (b) Report on Great Lakes open-coast flood levels by  the   United   States 
army, corps of engineers.
  (c)  Current  flood  hazard  analysis  studies  by   the   United    States 
department  of  housing   and   urban    development,    federal    insurance 
administration.
  (d) Current flood hazard analysis studies  by  the   United   States   soil 
conservation service.
  (e) Engineering studies currently acceptable to the department.
  (4) If the studies listed in subrule  (3)  of  this  rule   are   used   to 
determine the flood  risk  area,  all  of  the   following   procedures   for 
designation shall be used:
  (a) Not less than 30 days before designation of a flood  risk   area,   the 
department shall mail predesignation letters to the  affected  landowners  of 
record as shown in the last assessment roll. The letter  shall  explain  that 
the property is being considered for designation as a flood  risk  area.  The 
department shall schedule a meeting  before  designation   to   explain   the 
proposed designation to property owners and local  governmental  agencies.
  (b) The department shall designate a flood risk area   upon   its   finding 
that the property lies within the 100-year floodplain of a Great  Lake  or  a 
connecting waterway.
  (c) In designating a flood risk area, the department   shall   notify   the 
landowner of record and the local governmental  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.
  (d)  The  notice  of  designation  to  affected   landowners   and    local 
governmental agencies shall include all of the following information:
  (i) The authority and reasons for designation of flood risk areas.
  (ii) A description, graphic or otherwise, of the  limits   of   the   flood 
risk area.
  (iii) An explanation of any regulatory measures which may  be  required  in 
the flood risk area and the regulatory  role  of   the   local   governmental 
agency.
  (iv) The procedure by which the designation may be appealed.
  (5) The department shall consider additional flood risk areas  as  may   be 
proposed by local governmental agencies, citizens, or  interested  groups.
  (6) In the absence of an approved local ordinance   enacted   pursuant   to 
the provisions of sections 7, 8, 9, and 10 of the act   or   other   approved 
ordinance which meets or exceeds the requirements in these rules, a person or 
local governmental agency proposing  a  new   permanent   structure   or   an 
enlargement of an existing permanent structure on a parcel,  any  portion  of 
which  is  in  a  designated  flood  risk  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) An elevation survey of the building site by a professional  engineer or 
registered land surveyor that shows both of the following:
  (i) A temporary bench mark which is within  100  feet   of   the   proposed 
construction and which states the elevation of the bench mark in  relation to 
the national geodetic vertical datum.
  (ii) The proposed  elevation  of  the  lowest   structural   member   which 
supports the floor, including the  basement,  but  excluding   all   of   the 
following:
  (A) The footing.
  (B) Pile caps.
  (C) Piling.
  (D) Nonstructural slabs.
  (E) Girders.
  (F) Grade beams.
  (d) The means to be undertaken to prevent property loss.
  (e) The signature and address of the applicant.
  (7) A permit application for a new permanent structure on  a  parcel,   any 
portion of which is in a designated flood risk area, shall be approved  if it 
meets or exceeds the minimum requirements established in   subrule   (10)  or 
(11) of this rule.
  (8) Not more than 60 days after receipt of  a   permit   application,   the 
department shall send a 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   a   field 
investigation shall be processed within 20 days.
  (9) Approval of a permit does not exempt the   applicant   from   complying 
with other statutes, ordinances, or rules and regulations.
  (10) New residential structures in a flood risk area shall  be  elevated so 
that the lowest portion  of   all   horizontal   structural   members   which 
support floors,  excluding  footings,  pile   caps,   piling,   nonstructural 
slabs, girders, and grade beams, is located at or above  the  100-year  flood 
elevation. All basement floor surfaces shall be located at   or   above   the 
100-year flood  elevation.  New  and  replacement   electrical   wiring   and 
equipment and heating, ventilating, air conditioning,   and   other   service 
facilities shall be either placed above the 100-year flood  elevation  or  be 
protected so as to prevent water from entering or  accumulating  within   the 
system components  during  floods  up  to  the   100-year   elevation.   Duct 
insulation subject to water  damage  shall  not  be   installed   below   the 
100-year elevation.
  (11) New nonresidential structures in a flood  risk  area   shall   be   in 
compliance with either of the following requirements:
  (a) Meet the requirements of new residential structures as provided  for in 
subrule (10) of this rule.
  (b)  Together  with  attendant  utility  and   sanitary   facilities,    be 
certified by a professional engineer or architect to have  been  designed  so 
that, below the elevation defining the flood risk area,  the   structure   is 
watertight and able to withstand hydrostatic pressures from  a  water   level 
equal to the elevation defining the flood risk area. All   floor   and   wall 
penetrations for plumbing, mechanical, and  electrical   systems   shall   be 
made watertight to prevent flood water seepage or shall  be   provided   with 
shutoff valves  or  closure  devices  to  prevent   backwater   flow   during 
flooding.
  (12) An existing structure which is not in conformity  with  the  elevation 
requirements of a  designated  flood  risk  area  shall   not   be   altered, 
enlarged,  or  otherwise  extended  in  a  manner    that    increases    its 
nonconformity.  If  a  nonconforming  structure   deteriorates   or   becomes 
damaged, it may be restored to its condition before  the   deterioration   or 
damage if the repair costs are not more than 60% of the replacement  value of 
the structure in any 12-month period. If, in any 12-month  period,  the  cost 
of restoring the  nonconforming  structure  is   more   than   60%   of   its 
replacement value, the requirements for  new   permanent   structures   shall 
apply.
  (13) Any aggrieved party who contests the designation of   a   flood   risk 
area under subrule (4) of  this  rule  or  the  disapproval   of   a   permit 
application shall be granted a hearing if a petition  is   filed   with   the 
department not more than 60 days after the notice of designation or notice of 
disapproval 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.
  (14) 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   or   other 
approved ordinance, the department shall provide a period of  1   year   from 
the date of notification to allow the local unit of   government   to   adopt 
standards which equal or exceed the requirements in these rules.
  (15) 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 
assume its flood risk area permitting authority within  the  jurisdiction.
  (16) The landowner of record and the local governmental  agency  shall   be 
sent a notice by certified mail if the  flood  risk   area   designation   is 
removed.
  (17) All flood risk 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.


R  281.26   Rescission.
  Rule 6.  R 281.1  to  R 281.19  of  the   Michigan   Administrative   Code, 
appearing on pages 7129 to 7132 of the 1974 Annual Supplement  to  the   Code 
and pages 6  to  8  of  Quarterly  Supplement  No. 87  to   the   Code,   are 
rescinded.

  History:  1979 AC.