DEPARTMENT OF ENVIRONMENTAL QUALITY

                    LAND AND WATER MANAGEMENT DIVISION

                           WETLANDS PROTECTION

By authority conferred on the department of environmental quality by  section 
30319 of 1994 PA 451, as amended, MCL 324.30319.


R  281.921   Definitions.
  Rule 1. (1) As used in these rules:
  (a) "Act" means Act No. 203 of the Public Acts of 1979,  being  S281.701 et 
seq. of the Michigan Compiled Laws.
  (b) "Contiguous" means any of the following:
  (i) A permanent  surface  water  connection  or   other   direct   physical 
contact with an inland lake or pond, a river or stream, one  of   the   Great 
Lakes, or Lake St. Clair.
  (ii) A seasonal or intermittent direct surface water   connection   to   an 
inland lake or pond, a river or stream, one of the Great   Lakes,   or   Lake 
St. Clair.
  (iii) A wetland is partially or entirely located within 500  feet  of   the 
ordinary high watermark of an inland lake or pond or a river or stream  or is 
within 1,000 feet of the ordinary high watermark of one  of  the  Great Lakes 
or Lake St. Clair,  unless  it  is  determined  by  the  department, pursuant 
to R 281.924(5), that there is no surface  water  or  groundwater  connection 
to these waters.
  (iv) Two or more areas of wetland separated only by   barriers,   such   as 
dikes, roads, berms, or other  similar  features,  but  with   any   of   the 
wetland areas contiguous under the criteria described   in   paragraph   (i), 
(ii), or (iii) of this subdivision.
The connecting waters of the Great Lakes, including  the  St.  Marys,  St.
Clair, and Detroit rivers, shall be considered part of the  Great  Lakes  for 
purposes of this definition.
  (c) "General permit" means a permit which, as authorized by  section  10 of 
the act, is issued for categories  of  minor  activities,   as   defined   in 
subdivision (f) of this subrule.
  (d) "Individual permit" means a permit which, as authorized by  sections 7, 
8, and 9 of the act, is issued for categories of  activities  that   are  not 
classified as minor.
  (e) "Inland lake or pond, a river or stream" means any of the following:
  (i) A river or stream which has  definite  banks,  a   bed,   and   visible 
evidence of a continued flow or continued occurrence of water.
  (ii) A natural or permanent artificial inland lake  or   impoundment   that 
has definite banks, a bed, visible evidence of a  continued   occurrence   of 
water, and a surface area of water that is more than 5   acres.   This   does 
not include lakes  constructed  by  excavating  or  diking   dry   land   and 
maintained for the sole purpose of cooling or storing water  and   does   not 
include lagoons used for treating polluted water.
  (iii) A natural or permanent artificial pond  that   has   permanent   open 
water with a surface area that is more than 1 acre, but less than 5 acres.
This does not include ponds constructed by excavating or  diking   dry   land 
and maintained for the sole purpose of cooling or storing  water   and   does 
not include lagoons used for treating polluted water.
  (f) "Minor activities" means activities that are similar  in  nature,  that 
will cause only  minimal  adverse  environmental   effects   when   performed 
separately, and that will have only minimal cumulative  adverse  effects   on 
the environment.
  (g) "Wetland vegetation" means plants that exhibit  adaptations  to  allow, 
under normal conditions, germination or propagation and   to   allow   growth 
with at least their root systems in water or saturated soil.
  (2) As used in the act:
  (a) "Electric  distribution  line"  means  underground   lines   below   30 
kilovolts and lines supported by wood poles.
  (b) "Electric  transmission  line"  means  those   conductors   and   their 
necessary supporting or containing structures located  outside  of  buildings 
that are used for transmitting a supply of electric  energy,   except   those 
lines defined in subdivision (a) of this subrule.
  (c) "Pipelines having a diameter of 6 inches or less" means a pipe which is 
equal to or less than what is commonly referred to as a 6-inch pipe and which 
has an actual measured outside diameter of less than 6.75 inches.
  (3) Terms defined in the act have the same meanings when  used   in   these 
rules.

  History:  1988 AACS.

Editor's Note: An obvious error in R R 281.921 was corrected at  the  request 
of the promulgating agency, pursuant to Section 56 of 1969 PA 306, as amended 
by 2000 PA 262, MCL 24.256.  The rule containing the error was  published  in 
AACS 1988.  The memorandum  requesting  the   correction   was  published  in 
Michigan Register, 2008 MR 18. 


R  281.922   Permit applications.
  Rule 2. (1) An application  for  a  permit  shall  be  made   on   a   form 
prescribed and provided by the department.
  (2) An application for a permit shall not be deemed as  received  or  filed 
until the  department  has  received  all  information   requested   on   the 
application form, the application fee, and other  information  authorized  by 
the act and necessary to reach a decision.  The  period   for   granting   or 
denying an application begins as soon as  all  such   information   and   the 
application fee are received by the department.
  (3) Application fees shall be  submitted  to  the   department   with   the 
initial submittal of an application form. The fee shall be  paid  by   check, 
money order, or draft made payable to: "State of Michigan."
  (4) An application may be considered to be withdrawn and   the   file   for 
the application may be closed if an applicant  fails  to   respond   to   any 
written inquiry or request from the department for  information  requested as 
a part of the application form within 30  days  of  the   request   or   such 
longer  period  of  time  as  needed  by  the  applicant   to   provide   the 
information  agreed  to,  in  writing,  between  the   applicant   and    the 
department.
  (5) Upon request, the department shall provide any person with a copy of a  
permit  application   and   supporting   documents   consistent   with    all 
provisions of Act No. 442 of the Public Acts of 1976,   as   amended,   being 
S15.231 et seq. of the Michigan Compiled Laws.
  (6) Decisions  reached  by  the  department  which  deny   or   modify   an 
application for a permit shall be supported by   written   documentation   to 
the applicant based upon the applicable criteria contained in  section  9  of 
the act. The department shall create a form based  on   the   criteria   from 
section 9 of the act to be completed  and  placed   into   each   application 
file. When a proposed activity involves a coordinated   review   by   federal 
agencies as provided for under the act and section 404 of title  IV  of   the 
clean water act of 1977, 33 U.S.C. S1344, the department  shall   prepare   a 
fact sheet pursuant to 40 C.F.R. S124.8  (April 1,  1983)  and  40  C.F.R.
S233.39 (April 1, 1983) for inclusion in the application file.

  History:  1988 AACS.


R 281.922a    Permit application review criteria.
  Rule 2a. (1) The department shall review a permit application to  undertake 
an activity listed in section 30304 of the act according to the  criteria  in 
section 30311 of the act.
  (2) As required by subsection 30311(4) of the act, a permit applicant shall 
bear the burden of demonstrating that an unacceptable disruption  to  aquatic 
resources  will  not  occur  as  a  result  of  the  proposed  activity   and 
demonstrating either of the following:
  (a) The proposed activity is primarily dependent upon being located in  the 
wetland.
  (b) There are no feasible and prudent alternatives to the proposed activity.
  (3) A  permit  applicant  shall  provide  adequate  information,  including 
documentation as required by the department, to  support  the  demonstrations 
required by section 30311 of the act.   The  department  shall  independently 
evaluate the information provided  by  the  applicant  to  determine  if  the 
applicant has made the required demonstrations.
  (4) A permit applicant shall completely define the purpose  for  which  the 
permit is sought, including all associated activities.   An  applicant  shall 
not so narrowly define the purpose as to limit a complete analysis of whether 
an activity is primarily dependent upon being located in the wetland  and  of 
feasible  and  prudent  alternatives.   The  department  shall  independently 
evaluate and determine if the project  purpose  has  been  appropriately  and 
adequately defined by the applicant, and shall process the application  based 
on that determination.
  (5)  The  department  shall  consider  a  proposed  activity  as  primarily 
dependent upon being located in the wetland only if the activity is the  type 
that requires a location within the wetland and wetland conditions to fulfill 
its basic purpose; that is, it is wetland-dependent. Any activity that can be 
undertaken in a non-wetland location is not primarily  dependent  upon  being 
located in the wetland.
  (6) An alternative is  feasible  and  prudent  if  both  of  the  following 
provisions apply:
  (a) The alternative is available and capable of  being  done  after  taking 
into consideration cost, existing technology, and logistics.
  (b) The alternative would have less adverse impact on aquatic resources.
A feasible and prudent alternative may include any or all of the following:
  (i) Use of a location other than the proposed location.
  (ii) A different configuration.
  (iii) Size.
  (iv) Method that will accomplish the basic project purpose.
The applicant shall demonstrate that, given all pertinent information,  there 
are no feasible and prudent alternatives that have  less  impact  on  aquatic 
resources.   In  making  this  demonstration,  the  applicant   may   provide 
information regarding factors such as alternative construction  technologies; 
alternative project  layout  and  design;  local  land  use  regulations  and 
infrastructure; and pertinent environmental and resource issues. This list of 
factors is not exhaustive  and  no  particular  factor  will  necessarily  be 
dispositive in any given case.
  (7) If an activity is not primarily dependent upon  being  located  in  the 
wetland, it is presumed that a feasible and prudent alternative exists unless 
an applicant clearly demonstrates that a  feasible  and  prudent  alternative 
does not exist.
  (8) Unless an applicant clearly demonstrates otherwise, it is presumed that 
a feasible and prudent alternative involving a non-wetland location will have 
less adverse impact on aquatic resources  than  an  alternative  involving  a 
wetland location.
  (9) An area  not  presently  owned  by  the  permit  applicant  that  could 
reasonably be obtained, utilized, expanded, or managed in  order  to  fulfill 
the basic purpose  of  the  proposed  activity  is  a  feasible  and  prudent 
alternative location.
  (10) An alternative may be considered feasible and prudent even if it  does 
not accommodate components of a proposed activity that are incidental  to  or 
severable from the basic purpose of the proposed activity.
  (11) An alternative may be considered  feasible  and  prudent  even  if  it 
entails higher  costs  or  reduced  profit.  However,  the  department  shall 
consider the reasonableness of the higher costs or reduced profit  in  making 
its determination.
  (12) The department may offer a permit for a modification  of  an  activity 
proposed in an application if the proposed activity cannot be permitted under 
the criteria listed in section 30311 of the act and if the modification makes 
that activity consistent with the criteria listed in section 30311 of the act.
  (a) The applicant may  accept  the  permit  for  the  modification  of  the 
proposed activity by signing it and returning it to the department within  30 
days of the date of the offer.  The permit shall be  considered  issued  upon 
countersignature by the department.
  (b) The permit application is considered denied if the applicant  does  not 
sign and return the permit for the modification of the proposed  activity  to 
the department within thirty days of the  date  of  the  offer.   The  permit 
applicant may then appeal  the  denial  pursuant  to  sections  30307(2)  and 
30319(2) of the act.
  (c) The date on which the modification is offered shall be  considered  the 
date of the department's approval or disapproval of the application  pursuant 
to section 30307(2) of the act.

  History:  1988 AACS.


R  281.923   Permits.
  Rule 3. (1) An application for a proposed activity  which   is   within   a 
general permit category may be processed  and  issued   by   the   department 
without the noticing or hearings specified under sections 7, 8,  and   9   of 
the act. The department may process,  by  public   notice,   an   application 
which would normally qualify under a general permit category  to  allow  more 
opportunity for public review and comment. Categories  of  minor   activities 
will be established in the general permit in accordance with  section  10  of 
the act. The factors set forth in sections 3 and 9 of  the   act   shall   be 
considered in determining whether such a permit is in the  best  interest  of 
the public.
  (2) Applications for activities that are not classified as  minor  shall be 
reviewed through the process prescribed under sections 7, 8, and  9   of  the 
act. The department may issue  an  individual  permit  21  days   after   the 
mailing  of  notification  of  the  permit  application   if   comments    of 
nonobjection have been received from the municipality, if  a  public  hearing 
has not been requested, and if the proposed activities   are   otherwise   in 
accordance with the act.
  (3) If  the  department  does  not  approve  or   disapprove   the   permit 
application within the time provided by  section  8(2)  of   the   act,   the 
permit application shall be considered approved and the  department  shall be 
considered to have made the determination required by section 9 of  the act.
  (4) When a project involves activities regulated under Act   No.   247   of 
the Public Acts of 1955,  as  amended,  being  S322.701  et   seq.   of   the 
Michigan Compiled Laws, or Act No. 346 of the  Public  Acts   of   1972,   as 
amended, being S281.951 et seq. of the Michigan Compiled Laws,  or  the  act, 
the applicant shall submit 1  application  for   all   activities   regulated 
under these acts. Only 1 permit for these activities  will   be   issued   or 
denied by applying the criteria of the appropriate acts. If   a   permit   is 
issued, conditions shall reflect the requirements of all appropriate acts.
  (5) A permit may be issued for a period extending until the  end   of   the 
following calendar year. A permit may be issued for  a   longer   period   of 
time if agreed to, in writing, between the applicant and  the  department.
Before a permit  expires,  extensions  of  time  may  be   granted   by   the 
department upon receipt of  a  written  request  from   the   permit   holder 
explaining why such an extension is needed to complete the  project.  Up   to 
two 12-month extensions shall be granted if there  is  no   change   in   the 
activity for which the permit was originally  issued.   Administrative   fees 
shall not be required for such extensions.
  (6) Any permit issued under the act does not obviate   the   necessity   of 
receiving, when applicable, approval from other federal,  state,  and   local 
government agencies.
  (7) Any permit issued by the department under the act may  be  revoked   or 
suspended, after notice and an opportunity for a hearing, for  any   of   the 
following causes:
  (a) A violation of a condition of the permit.
  (b) Obtaining a permit by misrepresentation or failure  to  fully  disclose 
relevant facts in the application.
  (c) A change in a condition  that  requires  a   temporary   or   permanent 
change in the activity.

  History:  1988 AACS.


R 281.924  Wetland Identification and Assessment.
   Rule 4. (1)  When assessing whether a parcel of property or portion  of  a 
parcel is wetland, as required by section 30321 of the  Act,  the  department 
shall utilize criteria consistent with the definition of  "wetland"  provided 
in section 30301(d) of the act.   The  department  shall  provide  a  written 
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 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. 
   (3) When identifying  wetlands,  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.
   (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  act, 
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 324.36501. 
   (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.
   (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.
   (6) (a) A person who requests an assessment shall submit a  form  provided 
by the department.  The form shall contain  all  information  required  under 
section 30321(3) of the act, and shall be accompanied  by  a  check  for  the 
appropriate fee as set forth in this rule.
   (b) All fees are nonrefundable.
   (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  assessment  with  corresponding 
levels of fees:
   (i) For a fee of $100.00, 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  act,  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.
   (ii) For a fee of $500.00 for 1 acre or less, the department will  perform 
an on?site 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 due to  site  conditions,  as 
outlined under subrule (7) of this  rule.   The  fee  for  the  service  will 
increase by $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  or  part 
of the area evaluated is not wetland, then the report shall  state  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.
   (iii) For a fee of $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  wetland  professional  between 
wetlands and areas that are not wetlands.   The  fee  for  the  service  will 
increase by $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 wetland.  The wetland and  nonwetland  boundaries  must  be 
flagged by a wetland  professional  representing  the  person  who  made  the 
request.  The boundaries must have been  established  utilizing  methods  and 
procedures consistent with the Act 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 
wetland boundary be identified by a  wetland  professional  representing  the 
person who made the request and that new fees in the amount  of  1/2  of  the 
original fee be submitted for the on-site confirmation of the  new    wetland 
boundary and the assessment report.  If the assessment report determines that 
the area or part of the area 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.
   (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 wetland identification or 
confirm a boundary.
   (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.  

  History:  1988 AACS; 1998 AACS; 2006 AACS.


R 281.925  Mitigation.
  Rule 5. (1) As authorized by section 30312(2) of the  act,  the  department 
may impose conditions on a permit for a use or development if the  conditions 
are designed to remove an impairment to the wetland benefits, to mitigate the 
impact of a discharge of fill material, or to  otherwise  improve  the  water 
quality.
  (2) The  department  shall  consider  mitigation  only  after  all  of  the 
following conditions are met:
  (a) The wetland impacts are otherwise permittable under sections 30302  and 
30311 of the act.
  (b) No feasible and prudent alternative to avoid wetland impacts exists.
  (c) An applicant has used  all  practical  means  to  minimize  impacts  to 
wetlands.  This may include the permanent protection of wetlands on the  site 
not directly impacted by the proposed activity.
  (3) The department shall require mitigation as a  condition  of  a  wetland 
permit issued under part 303 of the act, except as follows:
  (a) The department may waive the mitigation  condition  if  either  of  the 
following provisions applies:
  (i) The permitted wetland impact is  less  than  1/3  of  an  acre  and  no 
reasonable opportunity for mitigation exists.
  (ii) The basic purpose of the permitted activity is to  create  or  restore 
wetlands or to increase wetland habitat.
  (b) If an activity is authorized and permitted under  the  authority  of  a 
general permit issued under section 30312(1) of the act, then the  department 
shall not require mitigation.  Public  transportation  agencies  may  provide 
mitigation for projects authorized under a general permit at  sites  approved 
by the department under a memorandum of understanding between the  department 
and public transportation agencies.
  (4) The department shall require mitigation to compensate  for  unavoidable 
wetland impacts permitted under part 303 of the act utilizing one or more  of 
the following methods:
  (a) The restoration of previously existing wetlands.
  (b) The creation of new wetlands.
  (c) The acquisition of approved credits  from  a  wetland  mitigation  bank 
established under R 281.951 et seq.
  (d) In certain circumstances, the preservation of  existing  wetlands.  The 
preservation of existing wetlands may be considered as mitigation only if the 
department determines that all of the following conditions are met:
  (i) The wetlands to be preserved perform exceptional physical or biological 
functions that are essential to the preservation of the natural resources  of 
the state or the preserved wetlands are an ecological type that  is  rare  or 
endangered.
  (ii) The wetlands to be preserved are under a demonstrable threat  of  loss 
or substantial degradation due to human activities that  are  not  under  the 
control of the applicant and that are not otherwise restricted by state law.
  (iii) The preservation of  the  wetlands  as  mitigation  will  ensure  the 
permanent protection  of  the  wetlands  that  would  otherwise  be  lost  or 
substantially degraded.
  (5) The restoration of previously existing wetlands is preferred  over  the 
creation of new  wetlands  where  none  previously  existed.  Enhancement  of 
existing wetlands is not considered mitigation.  For purposes of  this  rule, 
wetland restoration means the reestablishment of wetland characteristics  and 
functions at a site where they have ceased to exist through  the  replacement 
of wetland hydrology, vegetation, or soils.
  (6) An applicant shall submit a  mitigation  plan  when  requested  by  the 
department.  The department may incorporate  all  or  part  of  the  proposed 
mitigation plan as permit conditions.  The mitigation plan shall include  all 
of the following elements:
  (a) A statement of mitigation goals and objectives, including  the  wetland 
types to be restored, created, or preserved.
  (b) Information regarding the mitigation site location and ownership.
  (c) A site development plan.
  (d) A description of baseline conditions at the proposed  mitigation  site, 
including a vicinity map showing all existing rivers, lakes, and streams, and 
a delineation of existing surface waters and  wetlands  within  the  proposed 
mitigation area.
  (e) Performance standards to evaluate the mitigation.
  (f) A monitoring plan.
  (g) A schedule for completion of the mitigation.
  (h) Provisions for the management and long-term protection of the site.
The department  shall,  when  requested  by  the  applicant,  meet  with  the 
applicant to review the applicant's mitigation plan.
  (7) An applicant shall provide mitigation to assure that, upon  completion, 
there will be no net  loss  of  wetlands.   The  mitigation  shall  meet  the 
following criteria as determined by the department:
  (a) Mitigation shall be provided on-site where it is practical to  mitigate 
on site and where beneficial to the wetland resources.
  (b) If subdivision (a) of this subrule does not apply,  then  an  applicant 
shall provide mitigation in the immediate vicinity of the permitted  activity 
if practical and beneficial to the wetland resources.   "Immediate  vicinity" 
means within the same watershed as the location of the proposed project.  For 
purposes of this rule, a watershed refers to a drainage  area  in  which  the 
permitted activity occurs where it may be possible to restore certain wetland 
functions,  including  hydrologic,  water  quality,   and   aquatic   habitat 
functions.  Watershed boundaries are shown in Figure 1 in R 281.951.
  (c) Mitigation shall be  on-site  or  in  the  immediate  vicinity  of  the 
permitted activity unless the department determines that subdivisions (a) and 
(b) of this subrule are infeasible and impractical.
  (d) The department shall require that mitigation be of a similar ecological 
type as the impacted wetland where feasible and practical.
  (e) If the replacement wetland is of  a  similar  ecological  type  as  the 
impacted wetland, then the department shall require that the ratio  of  acres 
of wetland mitigation provided for each acre of permitted wetland loss  shall 
be as follows:
  (i) Restoration or creation of 5.0 acres of  mitigation  for  1.0  acre  of 
permitted impact on wetland types that are rare or imperiled on  a  statewide 
basis.
  (ii) Restoration or creation of 2.0 acres of mitigation  for  1.0  acre  of 
permitted impact on forested wetland types,  coastal  wetlands  not  included 
under (i) of this subdivision, and wetlands that border upon inland lakes.
  (iii) Restoration or creation of 1.5 acres of mitigation for  1.0  acre  of 
permitted impact on all other wetland types.
  (iv) 10 acres of mitigation for 1.0 acre of impact in situations where  the 
mitigation is in the form of preservation of existing wetland as  defined  in 
subrule (4) of this rule.
  (f) The department may adjust the ratios prescribed by this rule as follows:
  (i) The ratio may be increased if the replacement wetland is of a different 
ecological type than the impacted wetland.
  (ii) If the department determines that an adjustment would be beneficial to 
the wetland resources due to factors specific to the mitigation site  or  the 
site of the proposed activity, then the department may increase  or  decrease 
the number of acres of mitigation to be provided by no more than 20  percent. 
This shall not limit  the  amount  which  a  ratio  may  be  increased  under 
subdivision (f)(i) of this subrule.
  (g)  The  mitigation  shall  give  consideration  to  replacement  of   the 
predominant wetland benefits lost within the impacted wetland.
  (h) The department shall double the required ratios if a permit  is  issued 
for an application accepted under section 30306(5) of the act.
  (i) The department shall determine mitigation ratios for wetland  dependent 
activities on a site-specific basis.
  (8) Except where mitigation  is  to  occur  on  state  or  federally  owned 
property or where the mitigation is to occur in the same  municipality  where 
the project is proposed, the department shall give notice to the municipality 
where  the  proposed  mitigation  site  is  located  and  shall  provide   an 
opportunity  to  comment  in  writing  to  the  department  on  the  proposed 
mitigation plan before a mitigation plan is approved by the department.
  (9) An applicant shall complete  mitigation  activities  before  initiating 
other permitted activities, unless  a  concurrent  schedule  is  agreed  upon 
between the department and the applicant, and an adequate financial assurance 
mechanism is provided by the applicant.
  (10) The  department  may  require  financial  assurances  to  ensure  that 
mitigation is accomplished as specified.
  (11) An  applicant  shall  protect  the  mitigation  area  by  a  permanent 
conservation easement or similar instrument that provides for  the  permanent 
protection of the natural resource functions and  values  of  the  mitigation 
site, unless the department determines that such controls are impractical  to 
impose in conjunction with mitigation that was undertaken as  part  of  state 
funded response activity under Act No. 451 of the Public  Acts  of  1994,  as 
amended.
  (12) An applicant, with the approval of the department, may provide all  or 
a portion of the mitigation through the acquisition of approved credits  from 
a wetland mitigation bank established under R 281.951  et  seq.   One  credit 
shall be utilized for each acre of mitigation required under subrule  (7)  of 
this rule.

  History:  1988 AACS.