Current through Vol. 24-04, March 15, 2024
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.
