On July 2, 2013 the Governor signed Senate Bill 163 with immediate effect into Public Act 98 of 2013. This new law is a dramatic policy change concerning the regulation of all privately owned drains and wetlands in the State of Michigan which has existed from October 1, 1980.
“This new law has imposed a substantial number of new regulations on Michigan landowners, “said Scott Everett, Director of Legislative Affairs at Fraser Consulting in Lansing. “The bottom line is that all landowners will need to consult with the Michigan Department of Environmental Quality regarding any work performed within a private upland drain or a private drain within a wetland.”
Public Act 98 provides that construction and improvement of an agricultural drain is no longer exempt from a MDEQ permit. A permit must be obtained for construction of a new drain or improvement to an existing private drain. Also, the maintenance of an agricultural drain is exempt from a permit only if all of the following apply:
- The drain does not have continuous flow
- The drain serves agricultural production
- The maintenance does not exceed the drain’s July 1, 2014 specifications
- The maintenance is done with “Best Management Practices”
- No maintenance modification can result in additional wetland drainage
Previously, all agricultural activities were allowed within a wetland. PA 98 only allows ongoing and established farming, ranching, horticultural or silvicultural operations to conduct activities within a wetland without a MDEQ permit. Also, before the adoption of PA 98, the maintenance, operation or improvement of a drain which included straightening, widening or deepening of a private drain necessary for the production or harvesting agricultural products was exempt from a MDEQ permit. This is no longer the case. Also, any new drainage whatsoever within a wetland will require a MDEQ permit.
Public Act 98 also includes new “wetland mitigation” provisions and establishes a new “stewardship fund” which allows a landowner to make a payment to the MDEQ’s fund to be used for mitigation activities.
“Implementation of the Act’s new mitigation provisions, including the stewardship fund section, may face some challenges, “observed Michael H. Perry of Fraser Trebilcock in Lansing. “In light of the recent United States Supreme Court Opinion in Koontz v St. Johns Water Management District, which applied the “unconstitutional conditions” principle to a case in which the owner of a 14 acre parcel was deprived of an opportunity to develop three acres of his land because he refused to pay an exorbitant fee to the permitting agency.”
Mr. Perry also noted that Public Act 98’s “immediate effect” provision may conflict with the US EPA’s rule which requires it to review and approve in advance all substantial revisions to a state’s wetlands program. The federal rule provides that any changes in the state’s statutory scheme are not effective until the EPA’s regional administrator approves them. The EPA has not done so.
“Instead of clarity, which the MDEQ said PA 98 would accomplish,” said Mr. Perry, “we now have confusion and uncertainty in the law.”