Michigan Administrative Code
Department - Environmental Quality
Water Resources Division
Shorelands Protection and Management
Section R. 281.22 - High-risk erosion areas
Current through Vol. 24-04, March 15, 2024
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:
(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:
(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:
(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:
(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:
(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:
(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:
(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:
(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:
(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.