DEPARTMENT OF ENVIRONMENTAL QUALITY

                    LAND AND WATER MANAGEMENT DIVISION

                      INLAND LAKES AND WETLANDS UNIT

                        AQUATIC NUISANCE CONTROL

(By authority conferred on the department of environmental quality by section 
12561(3) of 1978 PA 368, MCL 333.12561)


R 323.3101    Definitions.
  Rule 1.  As used in these rules:
  (a)  "Act" means 1978 PA 368, MCL 333.12561 et seq.
  (b)  "Active ingredient" means an ingredient that  will  prevent,  destroy, 
repel, or control target organisms, act as a plant regulator,  defoliant,  or 
desiccant, or otherwise alter the behavior of plants or chemicals.
  (c)  "Algae" means any of the group of nonvascular aquatic plants which  do 
not have stems, flowers, leaves, and  roots,  and  which  are  single-celled, 
colonial, or filamentous forms.
  (d)  "Applicant" means any of the following entities:
  (i)  A person who is the bottomland owner.
  (ii)  A lake board established under part 309 of 1994 PA 451.
  (iii)  A state or local government.
  (iv)  A person who has written authorization to act on behalf of an  entity 
specified in this subdivision.
  (e)  "Aquatic nuisance" means any organism which lives  or  propagates,  or 
both, within the aquatic environment and which impairs the use  or  enjoyment 
of the waters of the state, including  the  intermediate  aquatic  hosts  for 
schistosomes that cause swimmers' itch.
  (f)  "Aquatic vegetation" means both algae and higher aquatic plants.
  (g)  "Area of impact" means  the  area  within  a  waterbody  where  target 
organisms may be adversely affected or destroyed.
  (h)   "Certificate  of  coverage"  means  written  authorization  from  the 
department to implement a project under a general permit.
  (i)  "Chemical" means any product designed to control, aid in the  control, 
eliminate, or restrict the growth of aquatic nuisances.
  (j)  "Commercial applicator" means  a  person  who  is  required  to  be  a 
registered or certified applicator under part 83 of 1994 PA 451, who uses  or 
supervises the use of a restricted use pesticide, or holds himself or herself 
out to the public as being in the business of applying pesticides.
  (k)  "Department" means the Michigan department of environmental quality.
  (l)  "Director" means the director of the department.
  (m)   "Emergency  notification  procedure"  means   a   department-approved 
procedure submitted annually by a commercial applicator, or  state  or  local 
government, which provides a description of all available means  of  contact, 
such as home telephone number, business telephone  number,  mobile  telephone 
number, or pager number. 
  (n)  "EPA" means the United States environmental protection agency.
  (o)  "FIFRA" means the federal insecticide, fungicide and rodenticide  act, 
as amended, being 7 U.S.C. §§136 to 136(y).
  (p)                            "Fluridone"                            means 
1-methyl-3-phenyl-5-[3-(trifluoromethyl)phenyl]-4(1h)-pyridinone.
  (q)  "General permit" means a permit for a category of activities that  the 
department determines will not negatively impact human health and  will  have 
no more than minimal short-term adverse impacts on the natural resources  and 
environment.
  (r)  "Higher aquatic plant" means any of a  group  of  vascularized  plants 
which have true stems, flowers, leaves, and roots, which live in  water,  and 
which belong to the class angiospermae. 
  (s)  "Littoral zone" means the area of a waterbody from the water's edge to 
the limit of the depth of light penetration where rooted  aquatic  vegetation 
typically grows.
  (t)  "Outlet" means any natural  or  artificially  created  watercourse  or 
structure which allows passage of water out of a waterbody into other surface 
waters of the state, in an intermittent or continuous flow.
  (u)  "Person" means any of the following entities:
  (i)  An individual.
  (ii)  Sole proprietorship.
  (iii)  Partnership.
  (iv)  Corporation.
  (v)  Municipality.
  (vi)  This state.
  (vii)  An instrumentality or agency of this state.
  (viii)  The federal government. 
  (ix)  An instrumentality or agency of the federal government.
  (x)  Another legal entity.
  (v)  "Pesticide" means a substance or mixture of  substances  intended  for 
preventing, destroying, repelling, or mitigating aquatic nuisances.
  (w)  "Swimmers' itch" means the inflammation of a swimmer's skin  resulting 
from an allergic reaction to the penetration of  the  skin  by  the  immature 
stages of blood fluke parasites which live a part  of  their  life  cycle  in 
certain aquatic snails.
  (x)  "Waters of  the  state"  means  groundwaters,  lakes,  ponds,  rivers, 
streams, and wetlands and  all  other  watercourses  and  waters  within  the 
jurisdiction of this state and also the great lakes bordering  this  state.   
For the purposes of these rules, "waters of the state" may also  be  referred 
to as a waterbody.

  History:  1979 AC; 2003 AACS.


R 323.3102    Activities requiring a permit or certificate of coverage.
  Rule 2.  (1)  A permit or certificate of coverage shall  be  obtained  from 
the department before any chemical treatment of waters of the state  for  the 
purpose of aquatic nuisance control, of waters of the state,where the area of 
impact contains visible water at the time of chemical treatment.  A permit or 
certificate of coverage shall also be obtained for chemical treatment of  the 
Great Lakes and Lake St. Clair where the area of impact is exposed bottomland 
located below the ordinary high water mark. 
  (2)  A person is authorized to chemically treat waters of the state without 
obtaining a permit or a certificate of coverage from the department if all of 
the following criteria are met:
  (a)  A waterbody does not have an outlet.
  (b)  There is no record of a state  or  federal  endangered  or  threatened 
species, pursuant to part 365 of 1994 PA 451.
  (c)  A waterbody has a surface area of less than 10 acres.
  (d)  The bottomlands of a waterbody are owned by either of the following:
  (i)  A single person.
  (ii)  More than 1 person and written permission for the  proposed  chemical 
treatment is obtained from each person.
  (3)  A person conducting a chemical treatment authorized by subrule (2)  of 
this rule shall  maintain  written  permissions  and  records  of  treatment, 
including treatment date, chemicals applied and amounts, and a map indicating 
the area of impact, for 1 year from the date of each chemical  application.   
The records shall be made available to the  department  upon  request.   Each 
chemical treatment shall be posted as specified in R 323.3106(d).

  History:  1979 AC; 2003 AACS.


R 323.3103    Registration of pesticides; use of certain chemicals prohibited.
  Rule 3.  (1)  Pesticides used in waters of the state for  aquatic  nuisance 
control shall be registered with the EPA, pursuant to section 3 of FIFRA, and 
the Michigan department of agriculture, pursuant to  section  8307,  1994  PA 
451, MCL 324.8307, for the nuisance control activity for which it is proposed.
  (2)   The  department  may  conduct  evaluations   of   the   impacts   and 
effectiveness for any chemicals that are proposed for use in  waters  of  the 
state.  This may include the issuance of permits for field assessments of the 
chemicals. 
  (3)  The director, in  consultation  with  the  director  of  the  Michigan 
department of agriculture, may prohibit or suspend the use of a chemical  if, 
based on substantial scientific evidence, use of a chemical is shown to cause 
unacceptable negative  impacts  to  human  health  or  the  environment.  The 
department shall not issue permits authorizing the use of such chemicals.  In 
addition, a person shall cease the use of such chemicals upon notification by 
the department.

  History:  1979 AC; 2003 AACS.


R 323.3104    Application for permit or certificate of coverage.
  Rule 4.  (1)  An applicant shall file an application  for  a  permit  or  a 
certificate of coverage with  the  department  on  a  form  provided  by  the 
department.  An application shall include all of the following information:
  (a)  The active ingredient or chemical trade name, and proposed application 
rate for each chemical proposed for use.
  (b)  A map or maps, to scale, of the waterbody which clearly delineates the 
proposed area or areas of impact for each chemical type.
  (c)  The name,  address  or  lot  number,  and  telephone  number  for  all 
bottomland owners whose property is in the proposed area of impact, except as 
follows:
  (i)  If the proposed area of impact is to involve the property of 5 or more 
bottomland owners, contact information is required for  5  persons  who  will 
know the date of treatment, the chemicals used, and  the  area  or  areas  of 
impact for each chemical treatment.
  (ii)  If an applicant has  an  emergency  notification  procedure,  contact 
information is required for 1 person who will know the date of treatment, the 
chemicals used, and the area or areas of impact for each chemical treatment.
  (iii)  If an applicant has contracted with a  person  to  provide  chemical 
treatment of aquatic nuisances, who has an emergency notification  procedure, 
the applicant shall identify the person and provide a copy of the contract or 
authorization form.
  (d)  Any additional information the department deems pertinent to  reaching 
a decision.
  (2)  An applicant shall provide a  lake  management  plan  as  part  of  an 
application for permit, if a whole lake treatment is proposed.
  (3)  The department may require an applicant to provide a  lake  management 
plan as part of an application for permit  based  on  the  type  of  proposed 
chemical treatment (for example, treatments evaluating the effectiveness of a 
pesticide) or on the significance of proposed impacts  on  natural  resources 
(for example, treatments where threatened or endangered species  or  habitats 
are present, treatment of a waterbody where removal of  a  large  portion  of 
native aquatic vegetation is proposed), or on the extent of bottomlands owned 
by public institutions.  If a lake management  plan  is  required,  then  the 
department shall notify potential applicants at least 1 year  in  advance  of 
the  requirement.   At  a  minimum,  notification  shall  be  posted  on  the 
department internet web site, and shall be published in pertinent  department 
publications. 
  (4)  A lake management plan shall be provided on department forms and shall 
include, at a minimum, all of the following:
  (a)  All of the following physical characteristics of the waterbody:
  (i)  Location.
  (ii)  Lake size.
  (iii)  Maximum depth.
  (iv)  Mean depth.
  (v)  Size of littoral zone.
  (vi)  Shoreline length.
  (vii)  Retention time.
  (viii)  Location map.
  (ix)  Bathymetric map, including all of the following:
  (A)  Tributaries.
  (B)  Outlets.
  (C)  Public/private access sites.
  (D)  Public land.
  (E)  Critical fish spawning areas.
  (F)  Wetlands.
  (G)  Special habitats.
  (H)  Parks.
  (I)  Water control structures.
  (b)  A description of the water quality, including data for  water  quality 
indicators, such as dissolved  oxygen,  temperature,  total  alkalinity,  and 
transparency (secchi disk).
  (c)  All of the following biological characteristics of the waterbody:
  (i)  Aquatic vegetation map(s) and data analysis.
  (ii)  Total higher aquatic plant surface coverage.
  (iii)   A  description  of  the  fish,  wildlife,  and  plant  communities, 
including identification of any special concern,  threatened,  or  endangered 
species.
  (d)  Land use activities including a description of the  land  use,  and  a 
land use map.
  (e)  History of waterbody management.
  (f)  Documentation of opportunities for involvement in plan development  by 
stakeholders and agencies responsible for managing  public  trust  resources, 
including a description of all input obtained.
  (g)  Vegetation management plan that includes a description of the  aquatic 
nuisance problem, management goals, management goal maps, management options, 
proposed  actions  necessary  to  attain  the  management  goals,  management 
timeline, and monitoring and evaluation processes.
  (5)  The department shall either issue or deny a  certificate  of  coverage 
within 15 working days after receipt of a complete application.   If  denied, 
the department shall notify the applicant, in writing,  of  the  reasons  for 
denial.
  (6)  The department shall issue a permit, grant the permit in part, or deny 
the permit within 30 working days after receipt of a complete  application.   
If denied or granted in part, the department shall notify the  applicant,  in 
writing, of the reasons for denial.
  (7)  An applicant  shall  obtain  authorization  to  chemically  treat  the 
proposed area or areas of impact by obtaining written  permission  from  each 
person who owns bottomlands in the area or areas of  impact.   The  applicant 
shall maintain the written permission for 1 year from the expiration date  of 
the permit, and shall make the  records  available  to  the  department  upon 
request.  Written permission from each bottomland owner is  not  required  if 
the applicant is providing, or has contracted to provide, chemical  treatment 
for either of the following:
  (a)  A lake board established under part 309 of 1994 PA 451.
  (b)  A state or local government acting under authority  of  state  law  to 
conduct lake improvement projects or to control aquatic vegetation.

  History:  1979 AC; 2003 AACS.


R 323.3105    Permits.
  Rule 5.  (1)  A permit shall, at a minimum, include all  of  the  following 
information:
  (a)  The active ingredient or the trade name of each chemical to be applied.
  (b)  The application rate of each chemical.
  (c)  The maximum amount of each chemical to be applied per treatment.
  (d)  Minimum length of time between treatments for each chemical.
  (e)  A map or maps that clearly delineate the approved  area  or  areas  of 
impact.
  (2)  The department may impose additional conditions on a permit to protect 
the natural resources  or  the  public  health;  to  prevent  economic  loss, 
recreational  damage,  and  unacceptable  negative   impacts   to   nontarget 
organisms; and to prevent  a  failure  to  provide  control  of  the  aquatic 
nuisance.
  (3)  The department may issue general permits.

  History:  1979 AC; 2003 AACS.


R 323.3106    Permit conditions. 
  Rule 6.  (1)  As a condition of a permit, the department  may  require  the 
permittee to do any of the following:
  (a)  Notify the department not less than  2  working  days  in  advance  of 
chemical treatment.
  (b)  Proceed with chemical treatment only if a department representative is 
present.
  (c)  Allow the department or its representative to collect a sample of  the 
chemical or chemicals used before or during any chemical treatment.
  (d)  Post the area or areas of impact before chemical  treatment.   All  of 
the following posting requirements apply:
  (i)  Signs shall be of a brilliant color and made  of  durable  material.   
Minimum sign dimensions shall be 14 inches by 11 inches and shall be attached 
to a supporting device with the bottom of the sign extending not less than 12 
inches above the ground surface.
  (ii)  Posting signs shall be placed in the following locations  unless  the 
department determines that the locations are impractical or infeasible  based 
upon a written request from an applicant which includes an explanation of the 
necessity for alternative posting locations and a description of the proposed 
posting locations:
  (A)  For an area or areas of impact that total less  than  2  acres,  signs 
shall be placed along the shoreline of the areas of impact not more than  100 
feet apart.  Riparian lands adjacent to the area shall  also  be  posted,  if 
permitted by the riparian owner.
  (B)  For an area of impact that is  greater  than  or  equal  to  2  acres, 
posting signs shall be posted as in paragraph (ii)(A) of this  subdivision.   
In addition, all access sites, boat launching areas, and private  and  public 
parks located on the waterbody shall be posted conspicuously, such as at  the 
entrances, boat ramps, and bulletin boards, if permitted by their managers or 
owners.  If the access sites, launching  areas,  and  parks  are  not  to  be 
treated or are not adjacent to the areas of  impact,  then  the  signs  shall 
clearly indicate the location of the areas of impact and  shall  contain  the 
other information specified in paragraph (iii) of this subdivision.
  (iii)  At a minimum, posting signs  shall  include  all  of  the  following 
information:
  (A)  The permit number.
  (B)  The name of the waterbody.
  (C)  The date of treatment.
  (D)  The name, address, and telephone number of the person  conducting  the 
treatment.
  (E)  The name of the chemical or chemicals used and the restrictions on the 
use of treated water pursuant to the permit.
  (F)  The expiration date of water use restrictions for each  chemical  used 
during treatment.
  (G)  The phrase "do not remove posting signs or maps until  all  water  use 
restrictions have expired."
  (e)  Publish a notice in a local newspaper or make  an  announcement  on  a 
local  radio  station  regarding  the  chemical  treatment.   The  notice  or 
announcement shall include all of the following information:
  (i)  The permit number.
  (ii)  The name of the waterbody.
  (iii)  A list of the chemicals to be  used  with  corresponding  water  use 
restrictions.
  (iv)  A description of the areas of impact.
  (v)  The proposed treatment dates.
  (f)  Apply chemicals so that  swimming  restrictions  and  fish-consumption 
restrictions are not imposed  on  any  Saturday,  Sunday,  or  state-declared 
holiday.
  (g)  Take special precautions to avoid or  minimize  potential  impacts  to 
human health, the environment, and nontarget organisms.
  (h)  Notify, in writing, an owner of any  waterfront  property  within  100 
feet of the area of impact, not less than 7 days, and not more than 45  days, 
before the initial chemical treatment.  Written  notification  shall  include 
all of the following information:
  (i)  Name, address, and telephone number of the permittee.
  (ii)  A list of chemicals proposed for use  with  corresponding  water  use 
restrictions.
  (iii)  All approximate treatment dates per chemical.
If the owner is not the occupant of the waterfront property or  the  dwelling 
located on the property, then the owner  is  responsible  for  notifying  the 
occupant.
  (i)  Complete  and  return  the  treatment  report  form  provided  by  the 
department for each treatment season.
  (j)   Perform  lake  water  residue  analysis  to   verify   the   chemical 
concentrations in  the  waterbody  according  to  a  frequency,  timing,  and 
methodology approved by the department.
  (k)  Perform aquatic vegetation surveys according to a  frequency,  timing, 
and methodology that has been approved by the department prior  to  submittal 
of a permit application.
  (l)  Use chemical control methods for nuisance aquatic vegetation that  are 
consistent with the approved vegetation management plan submitted  separately 
or  as  part  of  a  lake  management  plan.   The  department  may   approve 
modifications to the vegetation management plan upon  receipt  of  a  written 
request from the permittee that includes supporting documentation.
  (m)   Perform  pretreatment  monitoring  of  the  target  plant  population 
according to a frequency, timing, and methodology that has been  approved  by 
the department prior to submittal of a permit application. 

  History:  1979 AC; 2003 AACS.


R 323.3107    Fluridone use. 
  Rule 7.  (1)  The department may issue permits for  the  use  of  a  liquid 
formulation  of  fluridone  as  a  spring  treatment  to   control   Eurasian 
watermilfoil, as follows:
  (a)  A permit may be issued if the department determines that both  of  the 
following provisions apply:
  (i)  There is widespread distribution of Eurasian watermilfoil in the lake.
  (ii)  The abundance of Eurasian watermilfoil causes it  to  be  an  aquatic 
nuisance.
  (b)  An application shall include information necessary for the  department 
to make the determination under subdivision (a) of this subrule, including an 
aquatic vegetation survey performed in August or September of the year before 
the proposed fluridone application and corresponding survey data  analysis.   
The aquatic vegetation survey and data analysis shall be performed  according 
to methods that have been approved by the department before  submittal  of  a 
permit application.  
  (c)  A permit  or  permit  amendment  shall  not  authorize  a  lake  water 
fluridone concentration to be more than 6 parts per billion.
  (d)  The department may amend a permit to authorize an additional treatment 
14  to  21  days  following  initial  treatment,  if  the  average  fluridone 
concentration of all surface samples taken 13 to 15 days after  treatment  is 
less than 5 parts per billion.
  (2)  The department may  issue  permits  for  the  evaluation  of  uses  of 
fluridone other than as a spring treatment to control Eurasian watermilfoil.
  (3)  An  applicant  proposing  chemical  treatment  of  a  waterbody  using 
fluridone shall provide a lake management plan as described in R 323.3104(2).
  (4)  As a condition of all permits authorizing the use  of  fluridone,  the 
department shall require the permittee to perform the activities listed in  R 
323.3106(j), (k), and (l).
  (5)  The department shall not issue a permit for the use  of  fluridone  in 
the same waterbody more than once in any 3-year period, unless either of  the 
following provisions applies:
  (a)  The department determines, in the year of treatment, that a  fluridone 
treatment failed to control Eurasian watermilfoil.
  (b)  A use of fluridone approved by the department pursuant to subrule  (2) 
of this rule explicitly includes the use of fluridone in  more  than  1  year 
during a 3-year period.

  History:  1979 AC; 2003 AACS.


R 323.3108    Denial of a permit or a certificate of coverage.
  Rule 8.  (1)  The department shall deny a permit application, or a part  of 
a permit application, in any of the following circumstances:
  (a)  The proposed use  of  a  pesticide  is  inconsistent  with  its  label 
pursuant to FIFRA.
  (b)  The proposed use of a pesticide is  not  registered  by  the  Michigan 
department of agriculture pursuant to part 83 of 1994  PA  451  and  the  EPA 
pursuant to FIFRA.
  (c)  The proposed use of a chemical, though in accordance  with  the  label 
and otherwise in compliance with these rules or  in  combination  with  other 
aquatic  management  activities,  is  likely  to  result  in  economic  loss, 
recreational damage, a public health hazard, unacceptable negative impacts to 
natural resources, or failure to provide control of the aquatic nuisance,  as 
determined by the department.
  (d)  An application for chemical treatment  of  higher  aquatic  plants  is 
postmarked after August 15 in the year for which treatment is proposed.
  (2)  The department shall deny a certificate of coverage  if  the  proposed 
project does not meet the requirements for the general permit under which the 
application is made.
  (3)  The department shall deny a permit application or an application for a 
certificate of coverage if an applicant has committed 2 or more violations of 
other permits previously issued under the act, conditions  of  a  permit,  or 
these  rules  within  1  calendar  year.   For  purposes  of  this   subrule, 
"violation" means conviction in a court of law, or revocation of a permit  or 
certificate of coverage by the department, pursuant to R 323.3109(b) and (c).

  History:  1979 AC; 2003 AACS.


R 323.3109    Revocation of permit or certificate of coverage.
  Rule 9.  (1)  The department may revoke a permit or certificate of coverage 
for cause, including any of the following: 
  (a)  The department determines, through information not  available  to  the 
department at the time of permit  issuance,  that  the  use  of  a  chemical, 
although otherwise in accordance  with  the  label  and  these  rules  or  in 
combination with other aquatic management activities, is likely to result  in 
economic loss, recreational damage,  a  public  health  hazard,  unacceptable 
negative impacts to natural resources, or failure to provide control  of  the 
aquatic nuisance, as determined by the department.
  (b)  Failure to comply with any condition of a permit, the  act,  or  these 
rules, as determined by the department. 
  (c)  Obtaining a permit or certificate of coverage by misrepresentation  or 
failure to fully disclose relevant facts.

  History:  1979 AC; 2003 AACS.


R 323.3110    Permit amendments.
  Rule 10.  (1)  The department may make minor revisions, based on minimizing 
the impacts to the natural resources, public health, and safety, to a  permit 
before permit expiration, if the proposed revisions do not involve  a  change 
in the scope of the project, and upon receipt of a written request  from  the 
permittee that includes all of the following information:
  (a)  The proposed changes to the permit.
  (b)  An explanation of the necessity for the proposed changes.
  (c)  Maps that clearly delineate any proposed changes to the area or  areas 
of impact.
  (d)  Additional information that would help the department reach a decision 
on a permit amendment.

  History:  1979 AC; 2003 AACS.