Oftentimes land developers and landowners in Michigan assume that they can do whatever they want with their property—after all, it was President George Washington that said “Freedom and Property Rights are inseparable.” Such a sentiment may feel right, but one area of Michigan’s environmental law is less concerned with your property rights and more interested with protecting natural resources—wetlands.
Part 303 of Michigan’s Natural Resources and Environmental Protection Act (“Part 303”), formerly known as the Wetland Protection Act, regulates Michigan’s wetlands. Section 404 of the Federal Clean Water Act regulates certain wetlands as well, but the State of Michigan and United States Environmental Protection Agency have an agreement that in most cases allows Michigan’s Department of Environment, Great Lakes and Energy (“EGLE”) to administer the federal program for such wetlands.
Under Part 303, an individual must obtain a permit from EGLE prior to impacting a regulated wetland. Perhaps surprising to some, Part 303 is also unconcerned with whether you know there is a regulated wetland on your property before you make an unpermitted impact. That’s right, saying, “I did not know that was a regulated wetland,” does not shield you from Part 303. That being said, land developers and landowners should understand the key issues below to ensure they don’t inadvertently violate Part 303.
The first steps in avoiding a Part 303 violation is to determine if your property contains any regulated wetlands. Part 303 defines “wetland” as “a land or water feature, commonly referred to as a bog, swamp, or marsh, inundated or saturated by water at a frequency and duration to support, and that under normal circumstances does support, hydric soils and a predominance of wetland vegetation or aquatic life.” MCL 324.30301(n). Michigan’s regulations go on to further define wetlands based on a number of factors.
However, not every wetland is a regulated wetland. To be regulated by the State of Michigan, the wetland generally must:
- Be connected to, or located within 1,000 feet of a Great Lake or Lake St. Clair;
- Be connected to, or located within 500 feet of an inland lake, pond, river or stream
- Be more than five acres in size;
- Have documented presence of certain endangered or threatened species; or
- Be considered a rare or imperiled wetland.
Classifying a regulated wetland will require more than a mere once over. Because regulated wetlands are defined by consideration of hydrology, soil and presence of vegetation and aquatic life, you should engage an environmental consultant. A qualified consultant can properly determine whether your property contains a regulated wetland and can further provide a wetland delineation for your property.
Prohibited Activities and Permits
Once you’ve determined that your property contains a regulated wetland, a second step is to ensure that you do not impact a regulated wetland prior to obtaining a Part 303 permit from EGLE. Part 303 states that an individual shall not do the following activities without a permit (unless the activity meets one of several exemptions listed in the statute):
- Deposit or permit the placing of fill material in a wetland;
- Dredge, remove or permit the removal of soil or minerals from a wetland;
- Construct, operate or maintain any use or development in a wetland; or
- Drain surface water from a wetland.
The permit application process can be lengthy, so it is important to plan accordingly and allow enough time for the process to be completed. Before EGLE will issue a Part 303 permit, a proposed permittee will have to show:
- That proposed wetland impact is primarily dependent upon being in a wetland, or
- There are no feasible and prudent alternatives to the proposed wetland impact.
To obtain a Part 303 permit, individuals should also engage qualified environmental legal counsel and an environmental consultant to assist in this complex analysis, and to otherwise help in navigating the permitting process under Part 303.
Not only does EGLE provide Part 303 permits, it also brings enforcement action against violators of Part 303. If you do impact a regulated wetland prior to receiving a Part 303 permit, EGLE may serve you with a Notice of Violation. This is often followed by EGLE’s request to inspect your property. EGLE also often requests that violators enter into an administrative consent agreement (“ACA”), which will contain mandates to bring the property back into compliance with Part 303. An ACA may require a violator to mitigate wetland impacts—including restoring wetlands, creating new wetlands, acquiring approved wetland mitigation banking credits or preserving existing wetlands, accompanied by a civil penalty for the Part 303 violation. In extreme cases, EGLE is also authorized to bring criminal enforcement.
In conclusion, property rights in Michigan take a backseat to the mandates of Part 303. Land developers and landowners should familiarize themselves with Part 303 and ensure that their land development does not impact a regulated wetland prior to obtaining the proper permits.
Varnum has significant experience in counseling and representing land developers, landowners and other parties in relation to Michigan’s wetland law. If you need to obtain a wetland permit, if EGLE serves you with a Notice of Violation or if you have other wetland compliance concerns, please contact Seth Arthur or Kyle Konwinski from Varnum’s Environmental Team.