Serious Consequences for Impacting a Wetland
Author: W. Dane Carey
Property owners and construction clients often come to us for advice after already starting a building or development project because the Michigan Department of Environmental Quality (MDEQ) has informed them that their activities have impacted a wetland. Unfortunately, it is often too late at this point to avoid serious consequences. While there are certain procedures available that may allow the client to eliminate or minimize the adverse impacts on a regulated wetland, he or she is often required to pay fines and penalties for engaging in construction activities without a permit. At up to $10,000 per day, this can amount to hundreds of thousands of dollars in unexpected and unintended project expenses.
Needless to say, it is critically important for anyone considering construction or development to evaluate his or her property for regulated wetlands and obtain any necessary permits before commencing work. The purpose of this article is to give an overview of wetlands regulation and the permit process in Michigan.
Authority for Regulation
The MDEQ is responsible for the protection of wetland resources and the public functions they provide under the authority of Part 303 of the Natural Resources and Environmental Protection Act. The program oversees activities proposed in regulated wetland areas and reviews permit applications for dredging, filling, draining surface water, or constructing, operating, or maintaining any use or development in a wetland. The MDEQ also administers the federal permit program which regulates dredging and filling of wetlands under Section 404 of the Clean Water Act (except in coastal areas where the U.S. Army Corps of Engineers retains this authority). Thus, in most parts of the state, issuance of a permit by the MDEQ also authorizes alteration of wetlands under federal law.
There are also local regulations and ordinances you must be aware of when beginning a construction project which may require more extensive protections for wetlands depending on the locality. Local wetland protection ordinances may require a contractor who desires to perform work in or around a wetland to comply with larger setbacks for construction activities. Local regulations may also regulate wetlands smaller than those regulated by the federal and state rules. You should consult the local government to determine if a wetland ordinance exists.
Classification of Regulated Wetlands
Part 303 defines regulated wetlands as including all those that are contiguous to inland lakes or streams and the Great Lakes, as well as other wetlands over five acres in size. Contiguous wetlands may be connected to lakes, streams, or the Great Lakes by a surface water connection or by groundwater, and it is presumed that any wetland within 500 feet of inland waters or within 1000 feet of the Great Lakes has a groundwater connection. The DEQ may assert jurisdiction over non-contiguous wetlands less than five acres in size under special circumstances if it notifies the property owner in advance.
Most often, the best approach is to consult an environmental engineer familiar with wetland determinations as part of your development team. He or she will be able to walk the property and provide an informal initial opinion about whether wetlands exist. The MDEQ will also perform this type of inspection for a fee. But more often than not, you are better off hiring your own consultant to establish arguments that will help limit the scope of the wetland on the property.
The law requires that persons planning to conduct certain activities in regulated wetlands apply for and receive a permit from the state before beginning the activity. Specifically, if an area on the property is considered a regulated wetland, a permit is required for the following activities:
The rationale behind wetland regulation is that the public interest in the functions that wetlands provide is in need of protection. Accordingly, wetland permit decisions depend on the impact of the project on the public interest. Before a permit can be issued, the MDEQ must determine all of the following:
Two types of wetland permits can be obtained. A “general” permit or an “individual site specific” permit. The general permit does not require the MDEQ to hold a public hearing. General permits entail less oversight and are issued for more common or minor activities that occur in wetlands during construction.
Individual site specific permits are required when the project will result in more extensive wetland impact. In this case, the MDEQ oversight increases. The wetland area on the property must be surveyed and mapped, and the MDEQ may require an environmental impact and feasibility study to determine: (1) whether there are any less damaging alternatives to develop the site, (2) whether there will be any adverse impacts on aquatic resources, and if applicable, (3) whether wetland mitigation is required.
Wetland mitigation involves creating a new wetland either on the site or nearby in an amount greater than the area that was impacted or lost from the construction. Mitigation is an available option when any of the following conditions exist:
Enforcement and Penalties
Wetland property owners should be aware of the stiff penalties that come with violating Michigan’s wetlands law. Failure to obtain a necessary permit, or violation of permit conditions, are subject to civil and criminal penalties—including financial penalties, restoration, or jail sentences. A court may impose a civil fine of up to $10,000 per day of violation of the law or violation of court order, as well as ordering wetland restoration.
Criminal penalties are slightly different. A person who violates the Act is punishable by a fine of up to $25,000. Willful or reckless violations of permit conditions by a person or corporate officer can result in a fine of not less than $2,500 nor more than $25,000 per day of violation, and imprisonment for not more than one year. A second such violation constitutes a felony, punishable by a fine of up to $50,000 per day of violation, and up to two years imprisonment. In addition to these penalties, the court may order a person who violates this act to restore the affected wetland.
As described above, constructing in wetlands is not only highly regulated and complicated, but also subject to severe punishment if not properly undertaken. If you are considering construction or development activities on wetland property, you would be wise to contact an attorney to guide you through the process and discuss your available options. A little planning ahead of time may help you avoid the unexpected and unintended fines and penalties that can be imposed in any construction project that involves regulated wetlands.
 Examples of activities that typically would only require a general permit include: construction of boardwalks and platforms; construction of walkways and driveways through wetlands; construction of utilities and certain well access roads; storm water outfalls, culverts, other drainage work through or across wetlands; and minor fills for the construction or expansion of a single-family residence where the fill area is not to exceed 1/4 acre.