Governor signs wetlands legislation

Gov. Jennifer Granholm has signed Senate Bill 785 into law, which will keep wetland jurisdiction under the Department of Environmental Quality (DEQ) rather than sending it to the U.S. Army Corps of Engineers. The bill now becomes Public Act 120 of 2009.

Earlier this year, the governor had suggested moving wetland regulation authority from the DEQ to the U.S. Army Corps of Engineers as a cost-savings measure to spare $2.1 million of the cost of the program from the state's general fund. To accompany this move, the governor had recommended the repeal of Part 303 (the Wetlands Protection Act) of the Natural Resources and Environmental Protection Act to eliminate an unenforceable statute. However, it is Part 303 that gives townships and other local units of government the authority to have their own local wetland ordinance.

SB 785, introduced by Sen. Patty Birkholz (R-Saugatuck Twp.), would fund the wetland program for the next three years through the state bottle deposit fund and would streamline approvals of wetland permits in certain situations.  While separate legislation is needed to appropriate money from the state bottle deposit fund, the legislation is well underway and will likely be enacted by the time you are reading this article.

SB 785 creates general permits and minor permits categories for certain types of wetland projects that might otherwise be subject to an individual permit and allows for expedited review under these two categories. The legislation also requires that the state, and local units with wetland ordinances refer to the 1987 edition of the Corp of Engineers Wetlands Delineation, Technical Report Y-87-1 and appropriate regional U.S. Army Corps of Engineers supplements in determining wetland boundaries. This report uses hydric soils in addition to vegetation and hydrology as a determinant in whether or not a parcel contains wetlands.  While most local ordinances already utilize hydric soils in their wetland delineation, those that do not will likely see some added training costs and review time.

The legislation also creates two pilot programs.  One would test the approach of using locals units of government, conservation districts and non-profit organizations to assist the DEQ in the administration of the wetland program. The other would set up pilot projects in two counties with a population greater than 500,000 (Wayne, Oakland Macomb and Kent) to help foster the creation and enhancement of mitigation banks. Which locals units of government will be involved in these pilot programs will be determined by the DEQ director.

Among the other key aspects of the new law is the creation of the Wetland Advisory Council. The Wetland Advisory Council will look at key aspects of PA 120 and make recommendations back to the Legislature on how the streamlined process is working and whether or not changes need to be made to the program in the future.

Of utmost importance is that the ability of local units of government to maintain and create local wetland ordinances is not altered by the new law. To review the complete new public act, please visit http://www.legislature.mi.gov/documents/2009-2010/billenrolled/Senate/pdf/2009-SNB-0785.pdf.